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j This microfiche was produced from documents received for inclusion in the NCJRS data base, Since NCJRS cannot exercise control over the physical condition of the documents submitted, the individual frame quality will vary, The resolution chart on Attorney General's this frame may be used to evaluate the document quality, Task Force on Violent Crime 2 5 :; 111112.8 . 11111 . . 1.0 3 2 I~ Illil . I . \ W < ,0 w n~~ ~ Final Report :i I~ ... ~ 1.1 1.i.IL:.~ I August 17, 1981 , ) 111111.25 111111.4 111111.6 i I'

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Points of view or opinions stated in this document are those of the author(s) and do not represent the official , I .DATE FILMED! position or policies of the U. S. Department of Justice. ~. ". ~':I.....:-.~:y~:-:"" ""'-...c~-~ '."" ___""" b'""' "~' . . (;F J~... .' . .. .. -.:-- ! TNati~nal i~stitut~-orJustice .. .. :lA.:· ~ . 12/01/811 .' t··· .. -, ,. .. ,. ,. ---..-.-.~. --'-'--~ .~.~ ....~.. I , i l}nited States Department of Justice Washington, D. C. 20531 g L ...... i 1 I I , i~' " J

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U.S. Department of Justice

: Attorney General's Task Force on Violent Crime

Final Report

Task Force Members:

GRIFFIN B. BELL, Oo-Ohai1'man JAMES R. THOMPSON, Oo-Olw,irman DAVID L. ARlI-ISTRONG FRANE: G. CARRINGTON ROBERT L. EDWARDS WILLL.-\M L. HART WILBUR F. LITTLEFIELD JAMES Q. WILSON

JEFFREY HARRIS, Eweautive Director

U.S. Departmeni:of justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of View or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice.

Permission to reproduce this. I material has been granted by Public Domain/DOJ

to the National Criminal Justice Reference Service (NCJRS). , Further reproduction outside of the NCJRS system requires permis­ sion of the _owner. " ~~---"""'"""F~.i· -

.rask Force Staff u.s. Department of Justice Jeffrey Harris, EweC'l/'tive Direator Percy H. Russell, Jr., Deputy Direator Sue A. Lindgren, Associate Director Attorney General's Task Force on Violent Crime Joseph M. Band JohnM.Beal Robert B. Bucknam Linda S. Clark Washington, D.C. 20530 Harriett C. Coulbourn Griffin B. Bell David S. Davis Co-Chairman James R. Thompson Judith H. Friedman Co-Chairman Daniel N. Rosenblatt David L. Armstrong Alexander H. Williams, III August 17, 1981 Frank G. Carrington Robert L. Edwards Sally G. Willis William L. Hart Wilbur F. Littlefield Acknowledgments The Honorable William French Smith James Q. Wilson Attorney General We gratefully acknow ledge ~he follo:ving persons ~or Jeffrey Harris United States Department of Justice Executive Director their assistance during the hfe of tlns Task Fo:ce . Washington, D.C. 20530 Madeline Armstrong, Michele Coleman, J ~ar:Ita Davis, Janice Ingram, Brenda. Keyes, ,VIllIe Dear Mr. Attorney General: King, Mary Ann Rocheleau, Harry !"-. Scarr, Dana Thompson and U.S. Marshals SerVICe personnel assigned td the Task Forcein cities throughout the Pursuant to our charter and your mandate we have completed yountry. our work within the specified 120 days. The Task Force on Violent Crime herein presents its final recommendations on ,Ve also wish to express special thar:ks to J?ean C. St. ways in which th~ federal government can improve its efforts Dennis Assistant Director of Pubhc AffaIrs, U.S. to combat violent crime without limiting its efforts against Depart~ent of Justice; Kenneth L. Pekarek, organized and white collar crime. Inspector, U.S. Marshals Service; and Ga~y ~. "'tarkman Counsel to the Governor of Ill11101S, At your direction, we have divided our work into two ~or their ~xtraordinary contributions to our effort. phases. Our Phase I recommendations, which were presented to Finally, we wish to th~nk Prisci,na ,Vhitehouse you on June 17, 1981, addressed measures the Department of f the Justice PublicatIOns SerVICe of the U.S. Justice could undertake within the existing statutory framework ~epartment of Justice, Ma.~il!n Marbrook ~f and existing resources. Those recommendations, as they were originally presented to you, are included in the first section the Bureau or J ustice StatI~tICs! and. our edItor of this final report. Peter Smith for their contrIbutIOns III the preparation or this report. Our Phase II recommendations are contained in the second section of this report. They focus on changes in federal statutes, funding levels, and allocation of resources which we believe would increase the federal government's impact on violent and serious crime consistent with appropriate federal­ state relations and the competing needs for federal resources. The recommendations which follow are offered with due respect to the traditional separation of responsibilities between the federal government and the state:';). We reaffirm the wisdom of this separation, although we J.i..d identify a few areas where the federal government is in a unique position to assist state and local governments in fulfilling their criminal justice responsibilities.

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We wish to emphasize that the federal government's first Preface priority should be to provide adequate resources to its own offices which are involved in fighting violent crime and to assure that its policies are clear and sound in all matters which impact on state and local law enforcement. In this way the states and local governments can better deploy their resources to carry out their responsibilities. We do not believe that the federal government should subsidize the ongoing operations of state and local criminal justice systems. But we do believe that, within the context of each level of government exercising its own authority and bearing its unique responsibilities, much can be done to improve the coordinated federal-state-local fight against violent serious crime. This report presents the final recommendations District of New York. The Task Force was of the Attorney General's Task Force on Violent supported by a staff drawn from throughout the As a final note, we wish to express our deep appreciation Crime. Department of Justice. to the fine staff that 'tV'orked long and hard under very short The Task Force was appointed on April 10, 1981, The overall objective of the Task Force was to deadlines and that prepared our materials in a highly professional by Attorney General 1Villiam French Smith. The manner. We are also appreciative of the many officials and make specific recommendations to the Attorney Task Force consisted of eight individuals with a wide General on ways in which the federal government private citizens who testified at our hearings or who sent us range of expertise in criminal justice at the federal, their views in writing. The combined effect of these communi­ could do more to combat violent crime. The scope state, and local levels of g.overnment. of the Task Force's activities was divided into two cations had an important affect on our deliberations. \ It was co-chaired by former Att.orney General phases. It was indeed a distinct pleasure Griffin B. Bell and Governor James R. Th.omps.on The first phase focused on measures that the opportunity to assist you 'in this most .of Illinois. Griffin B. Bell was a judge of the U.S. Department could undertake within its existing you all continued success in seeing it Court of Appeals for the Fifth Circuit from substantive and jurisdictional framework. In that Oct.ober 1961 t.o March 1976 and was Att.orney phase the Task Force recommended measures the Respecti General fr.om January 1977 t.o August 1979. Department could immediately implement to Governor Th.ompson was U.S. Attorney in Chicag.o combat violent crime without the need for additional }~TS,~ from N.ovember 1971 until June 1975. legislation or funding, and without decreasing the Department's other important offensives Griffin B. Bell James R. Thompson Other members of the Task F.orce include: James Q. WIlson, professor .of g.overnment at Harvard against crime such as the white collar and anti­ Co-Chairman f University and author of numer.ous bo.oks and corruption efforts. The Task Force was directed articles on criminal justice; David L. Armstrong, to complete its Phase I report within 60 days of Comm.onwealth Attorney of Louisville and its first meeting which was held on April 17, 1981. c-llr:~i President of the N ati.onal District Attorneys On June 17, 1981, 15 Phase I recommendations Ass.ociati.on; Frank G. Carrington, Executive were presented to the Attorney General. These ~~ L Hart Director of the Crime Victims Legal Advocacy recommendations, along with supporting Institute, Virginia Beach, Virginia; Robert L. commentary, are presented as the first section to Edwards, Director of the Division .of Local Law this final report. Enforcement Assistance .o'f the Florida Department The second phase of the Task Force's work focused of Law Enforcement; 1Villiam L. Hart, Police on changes in federal criminal statutes, funding ~~~ Chief of Detroit; and 1Yilbur F. Littlefield, the levels, and resources that would increase the federal Robert L. Edwards Public Defender for Los Angeles County. government's impact on violent crime. The Task The Executive Director was Jeffrey Harris, Force was directed to complete this phase within 120 , \/11 Assistant Director for Marketing Abuses of the days of its first meeting. On August 17, 1981, the Federal Trade Commission, formerly on the staff Task Force presented 49 Phase II recommendations /\ Q .. J I L N' CL.L '\,"- (] '.~- ~v t to the Attorney General. These recommendations, of Attorney General Edward H. Levi, and a Je f y H rris former Assistant U.S. Attorney for the Southern and their supporting commentary, are presented in Executive D rector

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the second part of this final report. Because of the large number of Phase II recommendations, they have been organized into the following chapters: Contents • Federal law and its enfol'cem~nt • Criminal procedure • Federalism in criminal justice • Juvenile crime • Victims of crime. It should be noted that the order in which tihe recommendations are presented and numbered is not meant to suggest their relative importance or prir city for action. Letter of transmittal, iii 3. Fedcralism in Or'hni1'1al Justioe 61 In developing these recommendations the Task Force Preface,v Fugitives, 013 ' relied on several sources of information: Summary of recommendations, viii Training of state and local personnel, 63 • Public testimony provided in seven cities by Exchange of criminal history information 67 nearly 80 witnesses representing a broad spectrum of Introduction, 1 Justice statistics, 70 ' expertise in dealing with a multitude of problems Pha'se I Recommendations, 8 Disaster assistance, 71 facing federal, state, and local justice syst.ems. These' Federal funding for the research demonstratioll witnesses are listed in the Appendix to this report. Phase II Recommendations, 195 . 1 ' , , al~c1 ~mp em entation of innovative programs, 78 • 'Written testimony provided by literally thou­ ASSIstIng stato and local corrections, 75 1. Fede1'al" Law and Its 'Enf01'oement , 27 sands of federal, state, and local criminal justice N arcotlcs, B8 4. Juvenile Orime, 81 practitioners, scholars, and members of the general Guns, 199 .ruvenilo fingerprints, 82 public from across the country. Crimes against federal officials, 84 Federal jurisdiction over juveniles 88 • Staff research into specific issue areas that Arson, 85 Youth gangs, 8.1- ' included literature searches and interviews with .f'i Tax cases, 87 Federal juvenile justice program, 85 experts both within and outside the federal Tho Freedom of Information Act 40 I ' 5. Yiothns of 01'i1ne, 87 government. I I Centralizing federal law functions 42 I ' enforcen~ent Federal standards for the fair treatment of Housing federal detainees in local jails ' • The members' personal experience and ! I victims of serious crime 88 and state prisons, 44- expertise. 90 I! Adequate personnel resources for federal T~lil:d-party accountabilit~, VlCtIm compensation, 91 In addition to presenting the recommendations and responsibilities, 46 commentary, this report also contains the letters of 2. Orirninal Prooedure 1.9 Appendix. 'Witnesses who appeared before the Task transmittal and an introduction that describes, in • ' 'f Ball, 50 Force,92 general terms, the Task Force's approach to its J mandate and the constraints under which it operated. 1 Insanity defense, 54 Exclusionary rule, 55 Sentencing and parole, 56 I Habeas corpus, 58

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15. The Attorney General should direct responsible b. That a waiting period be required for the Summary of recommendations officials in appropriate branches of the purchase of a handgun to allow for a mandatory Department of Justice to give high priority ~0 records check to ensure that the purchaser is not testing systematically programs to reduce violent in one of the categories of persons who are crime and to inform state and locallnw proscribed by existing federal law from enforcement and the public about effective possessing a handgun. programs. 19. Title I of the Gun Oontrol Act of 1968 prohibits the importation of certain categories of Phase II Recomlnendations: handguns. However, the Act does not prohibit the importation of unassembled parts of these guns, Federal Law and Its Enforcement thereby permitting the circumvention of the Narcotics intended purpose of this title of the Act. It is Phase I Recommendations: 8. The Attorney General should direct the National therefore recommended that the Act be amended Institute of Justice and other branches of the 16. The Attorney General should support the to prohibit the importation of unassembled parts 1. The Attorney General should examine the Department of Justice to conduct research and implementation of a clear, coherent, and of hanrlguns which would be prohibited if feasibility of designating a single federallr.w development on federal and state career criminal consistent enforcement policy with regard to assembled. enforcement agency to coordinate all federal and programs, including programs for juvenile narcotics and dangerous drugs, reflecting an state lmlawful flight to avoid prosecution and offenders with histories of criminal violence. unequivocal commitment to combatting 20. The Attorney General should support or propose legislation to authorize the Bureau of Alcohol, other fugitive activities. Higher priority should 9. The Attorney General should take all steps international and domestic drug traffic and be given to locating and apprehending violence­ Tobacco and Firearms to classify semi-automatic necessary to reduce substantially the delay in including- prone offenders, maj or drug traffickers, and weapons that are easily converted into fully processing criminal identification a.pplications. a. A foreign policy to accomplish the other major violators. automatic weapons as Title II weapons under the interdiction and eradication of illicit drugs 10. The Attorney Gcmeral should t.ake aU steps Gun Control Act of 1968. . wherever cultivated, processed, or transported j 2. The Attorney General should invoke his necessary to reduce substantially the delay in including the responsible use of herbicides 21. The Attorney General should direct the United authority under Title 21 of the United States processing requests for technical assistance from Code and request the United States Navy to domestically and internationally. States Attol'lleys to develop agreements with state and local criminal justice agencies. state and local prosecutors for increased assist in detecting air and sea drug traffic. b. A border policy designed to effectively detect 11. The Attorney General should expand, where federal prosecutions of convicted felons 3. The Attorney General should work with. the and intercept the illega.! importation of llf~rcotics, possible, the training and support programs apprehended in the possession of a fire'arm,. appropriate governmental authorities to make including the use of military assistance. provided by the federal govel'llment to state This proposal would enable federal prosecutions available, as needed and where feasible, c. A legislative program, consistent with and local law enforcement personnel. to be brought against ~elons apprehended in the abandoned military bases for use by states and recommendations set forth elsewhere in this possession of a firearm under the 1968 Gun localities as correctional facilities on an interim 12. The Attorney General should exercise leadership report, to reform the criminal justice process Control Act and the Dangerous Special Offender and emergency basis only. Further, the Attorney in informing the American public about the to enhance the ability to prosecute drng-related provisions of the 011ganized Crime Control Act cases. General should work with the appropriate extent of violent crime. In that connection, the of 1970. Federal penalties under these statutes governmental authorities to make available, as Attorney General should seek to build a national Guns often are greater than state penalties applicable consensus that drug abuse, crime, and violence needed and where feasible, federal property for to firearms possession. Because these cases are use by states and localities as sites for correctional have no rightful place in the schools and, when 17. The Attorney General should support or propose mattGrs over which state and local law facilities. these conditions are found to exist, vigorous legislation to require a mandatory sentence for enforcement have primary jurisdiction, they criminal law enforcement should ensue. the use of a firearm in the commission of a federal 4. The Fea.e1'al Bureau of Investigation should should be. brought in close coordination with felony. establish the Interstate Identification Index 13. The Attorney General should take a leadership state and local prosecutors. The appropriate (III). role in ensuring that the victims of crime are 18. The Attorney General should support Or propose federal role is to initiate prosecutions in order to accorded proper status by the criminal justice legislation to amend the Gun Control Act of 1968 bring federal prosecutorial resources and more 5. The Federal Bureau of Investigation should system. to strengthen its ability to meet two of its major severe penalties to bear on the most serious eAamine the feasibility of a separate registry purposes: allowing the trace of firearms used offenders in a locality who are apprehended with of firearms violators. 14. The Attorney General should require, as a during the commission of an offense and firearms in their 'Possession. matter of sentencing advocacy, that federal 6. The Attorney General should mandate the prohibiting dangerous individuals from prosecutors assure that allrclevant information 22. The Attorney General should direct the United Sta.tes Attorneys to establish law acquiring firearms. Specifically, the Act should about the crime, the defendant, and, where National Institute of Justice to establish, as a enforcement coordinating committees in each be amended to provide the following: high priority, research and development of federal district. appropriate, the victim, is brought to the court's attention before sentencing. This will help ensure a. Thnt, on a prospective basis, individuals be methods of detecting and apprehending persons 7. The Attorney General should expand the that judges have a complete picture of the i" required to report the theft or loss of a handgun unlawfuHy carrying guns. program of cross-designation of Assistant defendant's past conduct before imposing to their local law enforcement agency. United States Attorneys and state and/or local sentence. prosecutors. viii, SUrrvma1'Y of reoowmendati0n8 Summary of reoomrnendaticm..s ire .: ...... , ! I Crimes against federal officials 29. The Internal Revenue Service should be afforded I adequate resources to inyestigate tax offenses I 35. The Attorney General should support or 23. Tho Attorney General should support or propose a legislative appropriation for the e. Provido tho government with the right to off~nse and financial dealings of drug traffickers and appeal release decisions analogous to the propose legislation to maIm a federal any implementation of a Cooperative Agreement murder, kidnapping, or assault of a Umted other illegal business activities that are I Program that would allow the United States appellato rights now afforded to defendants. States official or of a federal public sPt'Yunt who associated with violent crime. Marshals Service to assist local governments f. Require defendants to refrain from criminal is enO'ao'ed in the performance of Offil'jld 30. The Attorney General should review and in acquiring equipment and supplies necessary activity as a mandatory condition of release. dutie~. The tenn "United States official" restructure if necessary the "Dual Prosecution I for jails to meet requirements for housing g. Make the penalties for bail jumping mOre should be defined to mean a member of Polici' as it relates to prosecution of tax federal prisoners and should support or closely proportionate to the penalties for the UonO'ress a member of Congress-e'lect, a I b , • offenders who have committed other offenses ! propose a legislative appropriation for capital offense with which the defendant was federal judge, a member of the Execub\'e 1 prosecuted by the Department of Justice. improvements of detention facilities used to originally charged. Branch who is the head of a department, or house federal prisoners, with priority given to those already covered by the law including the The Freedom of Information Act Insanity defense those facilities under litigation or court order President, tho President-elect, hIle Vice 31. The Attorney General should order a for overcrowding. 39. The Attorney General should support or propose President, and the Vice President-elect. The comprehensive review of all legislation, legislation that would create an additional 36. The Attorney General should support or term "federal public servant" should be defined guidelines, and regulations that may serve to verdict in federal criminal cases of "guilty but as any person designated for cOYerage in propose legislation to amend 18 U.S.C. 5003 impede the effective performance of federal law mentally ill" modeled after the recently passed reO'uln,tions issued by the Attorney General and to permit a quid pro quo arrangement whereby enforcement and prosecutorial activities and Illinois statute and establish a federal commit­ already covered by law including a the federal government could house state th~se take what eyer appropriate action is necessary ment procedure for defendants found incom­ :federal law enforcement officer. prisoners and the states house a similar number within the constitutional framework. petent to stand trial or not guilty by reason of of federal inmates without requiring an insanity. 24-. The Attorney General should support or 32. The Attorney General should seek amendments exchnnge of funds. propose legislation to make a federal offense to the Freedom of Information Act to correct I Exclusionary rule any murder, kidnapping, or assault on a those aspects that impede criminal investigation 1, Adequate personnel resources state or local law enforcement officer or on a and prosecution and to establish a more rational for federal responsibilities 40. The fundamental and legitimate purpose of the private citizen committed in the course of ~ balance among individual privacy considel'U­ exclusionary rule-to deter illegal police conduct I 37. The Attorney General should seek a and promote respect for the rule of law by murder, kidnapping, or assault on the PresIdent tions, openness in government, and tl~e. gov­ f substiUltial increase in personnel resources or Vice President. preventing illegally obtained evidence from ernment's responsibility to protect CItIzens for federal law enforcement and prosecutorial from criminal activity. being used in a criminal trial-has ueen eroded Arson ! agencies' to enable them to effectively perform by the action of the courts barring evidence of their present responsibilities and the additional 25. The Attorney General should conduct [l, study Centralizing federal law the truth, however important, if there is any enforcement functions I! , and expanded respollsibilities recommended investigative error, however unintended or of the feasibility of transferring' the anti-arson by this Task Force. trivial. We believe that any remedy for the training and research functions of the United 33. The Attorney General should study whether States Fire Administuttion to the Bureau of to transfer the firearms, alcohol, and arson law I Criminal Procedure violation of a constitutional right should be Alcohol, Tobacco and Firearms. enforcement functions of the Bureau of A1.cohol, proportional to the magnitUde of the violation. Bail Tobacco and Firearms to the Department of In general, evidence should not be excluded from 26. Arson should be the subject of a special a criminal proceeding if it has been obtained by Justice; to transfer the Border Patrol funcl'ions I 38. The Attorney General should support or statistical study on a regular basis by an I an officer acting in the reasonable, good faith of the Department of Justice to the Department propose legislation to amend the Bail Reform appropriate agency as determined by the belief that it was in conformity to the Fourth of tho Treasury; and to transfer the licensing I Act that would accomplish the following: Attorney General. Amendment to the Constitution. A showing that and compliance functions of the Drug Enforce­ I' 27. To eliminate problems that often emerge l a. Permit courts to deny bail to persons who evidence was obtained pursuant to and within ment Administration to the Food and Drug ! when gasoline or other. flammable liquids are are found by clear and convincing evidence to the scope of a warrant constitutes prima facie Administration of the Department of Health I used in arson, current law creating federal present a danger to particular persons or the evidence of such a good faith belief. We and Human Services. community. jurisdiction over arson stal~e~l by explosion recommend tha t the Attorney General instruct where interstate commerce IS mvolved should Housing' federal detainees in local jails b. Deny bail to a person accused of a serious United States Attorneys and the Solicitor be amended to encompass arson started by and state prisons I crime who had previously, while in a pretrial General to urge this rule in appropriate court fire as well as by explosion. release status, committed a sedous crime for proceedings, or support federal legislation 34. The Attorney General should seek a waiver of I' which he was convicted. establishing this rule, or both. If this rule can be Tax cases the requirements of the Federal Procurement I; c. Codify existing case law defining the established, it will restore the confidence of the ReO'ulations for contracts entered into for 28. The Attorney General should support or I authority of the courts to detain defendants public and of law enforcement officers in t.he propose legislation to amend the Tax Refol'ln te:porary housing of federal prisoners in .10cH'~ I, as to whom no conditions of release nrc integrity of criminal proceedings and the value detention facilities and/or should seek legIslatIon Act to balance legitimate law enforcement adequate to assurc appearance at trial. of constitutional guarantees. needs with personal privacy interests by to amend the Grant and Cooperative Agreement Act of 1977 (Public Law 95-224) to establish I d. Abandon, ill tho caso of serious crimes, the permitting the limited use of Internal Revenue and authorize the use of intergovernmental current standard presumptively favoring Service records and infor.mation by other law releaso of convicted persons awaiting enforcement agellcirs. agreements with local governments for detention I space and services for federal prisoners. r imposition 01' execution of sentenco 01' 1 ; appealing their convictiOllS. i, I,I' OJ Summar'1j of reoommendations

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Sentencing and parole Training of state and local personnel 41. The Attorney General should support the 44. The Attorney General should est.ablish, and 50. The Attorney General should seek additional enactment into law of the sentencing provisions where necessary seek addit.ional resources for, Assisting state and local corrections resources for the FBI to reduce the backlog of of the proposed Criminal Code Reform Act specialized training programs to allow state and requests for fingerprint and name checks and to 54. Tho Attorney General should seek legislation of 1979 which provide for greater uniformity local law enforcement personnel to enhance their enable it to respond to such requests more calling for $2 billion over 4 years to be made and certainty in sentencing through the ability to combat serious crime. available to the states for construction of creation of sentencing guidelines and the promptly, including those from non-law 45. The Att.orney General should seek additional enforcement 'Users, and should assign high correctional facilities. Criteria for a state's abolition of parole. obtaining federal assistance under this proO"ram resources to allow state and local prosecutors to priority to swift completion of computerizing • b Habeas corpus participate in training programs for prosecutors. fingerprint files. mclude (1) demonstration of need for the construction; (2) contribution of 25 percent 42. The Attorney General should support or 46. The Attorney General should ensure that the Justice statistics of the overall cost of the construction; and propose legislation that would: soon-to-be established National Correct.ions 51. The Attorney General should ensure that (3) assurance of the availability of operational a. Require, where evidentiary hearings in habeas Academy will have adequate resources to enable adequate resources are available for the funds upon completion of construction. Funds corpus cases are necessary in the judgment of state and local correctional personnel to receive should be allocated by a formula which measures the district court, that the district court collection and analysis of statistics on crime, its training necessary to accommodate the demands victims, its perpetrators, and all parts of the a state's need for prison construction relative afford the oppOltunity to the appropriate state. to all states. on their agencies for managing and supervising justice system at all levels of government and court to hold the evidentiary hearing. increased populations of serious offenders. for the dissemination of these statistics to 55. 'Within 6 months) the National Institute of b. Prevent federal district courts from holding Exchange of criminal history policymakers in the Department of Justice; Corrections (NIC), which would administer evidentiary hearings on facts which were fully information other agencies of federal, staie, and local the program described in Recommendation 54 expounded and found in the state court , government; the Congress; and thG general would develop models for maximum, medium, proceeding. 47. a. If the eight-state prototype test of the public. and minimum security facilities of 750 and 500 c. Impose a 3-year statute of limitations on Interstate Identification Index (III) is successful, the Attorney General should direct Disaster assistance (or fewer) beds, from which states would hUJbeas corpus pet.itions. The 3-year period choose the appropriate model (s) for the Federal Bureau of Investigation to begin -would commence on the latest of the following 52. The Attorney General should support or propose construction. In addition, over the 4-year dates: immediately the development of the index and legislation to allow direct financial assistance to periodl NIC would complete studies pertaining should ensure that adequate computer support (1) the date the state court judgment became supplement the resources and efforts of state and to the possible establishment of regional and staff are available to develop and maintain final, local governments that have demonstmted that prisons, the feasibility of private sector (2) the date of pronouncement of a federal it for the federal government, all 50 states, thl' they are suffering a cl,iminal justice disaster or involvement in prison management, and the right which had not existed at the time of trial District of Columbia, and appropriate areas of emergency of such un'llsu'al nature and funding needs of local jails. The Attorney and which had been determined to be federal jurisdiction outside of the United States. proportion that their own resources fall short of General should review NIC's findings and retroactive, or b. If the prototype test demonstrates that such addressing the need, and he should request other relevant information to determine the (3) the date of discovery of new evidence an index is not feasible, the Attorney General adequate funds to support such assistance. need for additional funding upon completion by the petitioner which lays the factual predicate. should direct the FBI to develop alternative Federal funding for research, of the 4-year assistance program. for assertion of a federal right. proposals for the exchange of federal, state, and demonstration. evaluation, and 56. The Attorney General should support or d. Codify existing case law barring litigation of local cl'iminal history information, which may implementation of innovative programs propose legislation to amend the Federal issues not properly raised in state court unless include a national data base of such records or 53. The Attorney General shpuld ensure that: Property and Administrative Services Act of "cause and prejudice" is shown, and provide It message switching. a. Adequate resources are available for the 1949 to (1) permit the conveyance or lease at statutory definition for "cause." 48. The Attorney General should support or propose research, development, demonstration, and no cost of appropriate surplus federal property legislation to ll'uthorize and })rovide adequate to state alldlocal governments for correctional Federalism in Criminal Justice independent evaluation of methods to prevent resources for grants to state governments to and reduce serious crime; for disseminating purposes and (2) ensure such conveyances or Fugitives establish the central state repositories of records these findings to federal, state, and local justice leases be given priority over requests for and the criminal justice information systems the same property for other purposes. 43. The Attorney General should seek additional agencies; and for implementing these programs required for participation in the III program, or resources for use in the apprehension of major of proven effectiveness a t the state and local 57. The Attorney General should support or a;lternative criminal history exchange programs level. federal fugitives and state fugitives who are propose legislation to (Unend the Vocational as discussed in Recommendation 47. believed to have crossed state boundaries and b. Grant awards for implementing such Education Act and other applicable statutes who have committed or are accused of having 49. The Attorney General should direct the FBI to demonstrated programs require a reasonable to facilitate stalte and local correctional committed serious crimes. revise its long-range plan to reduce duplication match of state or local funds and be limited 'agencies' ability to gain access to existing funds of criminal history information services between to a reasonable time period. for the establishment of vocational and the Identification Division and the National educational programs within correctiO'l1al Crime Information Center to take into account. institutions. the results of the eight-state prototype test of the III.

xii Summary of rec01nrnendations

Summar1J of recommendations xiii

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·.. 1 • 1 (. Third-party accountability Juvenile Crime II ! i Introduction 63. The Attorney General should study the pri~ciple Juvenile fingerprints that would allow for suits aga.inst approprIate t i 1! 58. The Attorney General should direct, and if federal O'overnmental agencies for geos3 negli­ I I necessa.ry seek additional resources for, the gence inovolved in allowing early release or fail­ U Federal Bureau of Investigation to accept. ure to supervise obviously dangerous persons l •. ; f., fingerprint and criminal hist.ory in~orma~IOn or for failure to warn expected victims of such i of juveniles convicted of serIOUS CrImes III dangerous persons. state courts and should support or propose legislation to amend Se~tion 5038 of the. Victim compensation Juvenile Justice and Delmquency PreventIon 64. The Attorney General should order that a Act to provide for fingerprinting antl phot~­ relatively inexpensive study be conducted of graphing of all juveniles convicted of serIOUS tho various crime victim compensation programs The Attorney General of the United States instructed variously said to be found in the weakening of crimes in federal courts. and their results. us to recommend specific ways in which the federal familial and communal bonds, the persistence of r government can do more to assist in controlling unacceptable social disadvantages among some Federal jurisdiction over juveniles I violent crime without limiting its efforts against segments of society, and the easy spread of attitudes 59. The Attorney General should support or propose organized crime and white-collar crime. 'Ye began that fa VOl' immediate over deferred gratification. ,Ve legislation to amend Section 5032 of the . L our work aware, as every citizen is aware, of the did not inquire into these matters for several Juvenile Justice and Delinquency PreventIon fearful toll that serious, yiolent crime is exacting in reasons. First, our charge was to make 1.1 our comm unities; the evidence we ha ve taken in our Act to give original jurisdiction to the ~ederal I,, recommendations to the Attorney General as to what government over a juvenile who commIts a i hearings in seven cities heightened that awareness policies the Department of Justice might pursue, not federal offense. and underscored for us the extent to which millions "'''hat policies the government vs a whole might ,j of our fellow citizens are being held hostage by follow. Second, eyen if our char.ge had been broader, Youth gangs their fear of crime and violence. we are not convinced that a government, by the 60. The Attorney General, where appropriah~, should I Though violent crime can strike anyone, most invention of new programs or the management of expand the use of federal inv:estigative ~nd' . j frequently it affects the poor, the young, the very existing institutions, can by itself recreate those prosecutorial resources n~w direc~e~ ~g.aillst old, and residents of the inner cities-precisely familial and neighborhood conditions, those social t! opportunities, and those personal values that in all traditional organized crIme actIvItIes to the .\ those persons who are least able to protect themselves . serious criminal activities of youthful street And even those "ho can afford a suburban likelihood are the prerequisites of tranquil gangs now operating in metropolitan areas of !J residence or a privately guarcled city apartment communities. Finally, we are mindful of the risks of the country. often find themselves defenseless on the streets. assuming that the government can solve whatever problem it addresses. '1'he preamble to the Federal juvenile justice program A free society presupposes an orderly community. Constitution, after all, promises not only domestic 61. Funding of juvenile justice progr~ms shou~d The Constitution of the United States, in its tranquility but the "blessings of liberty" as well, and be done according to the criteria set forth ill preamble, announces that among the purposes of we must not risk losing the latter in order to achieve I the new union was to "insure domestic tranquility," the former. Recommendation 53; such programs should be but nowhere in that document is there any provision considered for funds along with all other I; lYe thus present our report mindful of the limits to programs within the administrative framework for the federal government directly to police its citizens. The Founders sought to combine the what goyerlllnent can do and of the risks of allowing for l'J'eneral funding. il our reach to exceed our grasp. These limits, which o 11 ad,'antages of a federal union and the virtue of inclividualliberty in order to achieve justice and the face all free governments, are especially important in Victims of Crime 1 general weHare. If this delicate balance between assessing the role of the federal government, since law enforcement in this nation is essentially-and Federal standards for the fair treatment a national government and local governments, I between the genel~aJ good and personal freedom, properly-a responsibility of state and local of victims of serious crime was to survive, the people of this nation would ha,'c governments. In our deliberations, we have come to 62.. The Attorney General should establish and I to display forebearance, show one another mutual identify certr,in criteria that should serve as the basis promulgate within the Departmellt of Justlce, t respect, aud build self-regulating neighborhoods for federal action. In general, federal action is or support the enactment of legislation to , . t I and communIties. If order and tranquility could appropriate when one or more of the following four establish Federal Standards for the ] ltlr t \ only be achieved by the exercise of governmental conditions are met: 1 ' Treatme~t of Victims of Serious Crime. '! ; power, then a free society would be impossible. The crime requires the creation and exercise of The wave of serious, violent crime we are now federal jurisdiction because it- experiencing reflects a breakdown of the social order, • Materially affects interstate commerce. !r i Hi not of the legal order. The causes of crime are I : j ! i 1 I nt'l'oauotion 1 l wiv Summa1"lJ of 'feaorrvmendations 1* t ~,' I ------

• Occurs on a federal reservation or in the Dis­ in turn, will help to deter some would-be offenders trict of Columbia. and incapacitate other known off.mders. We believe • Involves large criminal organizations or that better efforts at controlling the flow of narcotics conspiracies that can be presumed to operate in into this country by attacking the problem as close to several states. the source as possible wi11reduce the amount of • Is directed at a target of overriding national crime-especially violent e::rime-attendant upon the Phase I importance (e.g., an assassination attempt on the distribution of these drugs once they enter the life of a high federal official) . United States. We think the research and development work of the federal government has There is a need to discover, test, and disseminate already been of value to crime control efforts because Recommendations strategies for coping with crime aJld disorder. No of the testing of such approaches as career-criminal local jurisdiction should be expected to pay the prosecutorial programs, computerized information costs of research and development in law systems, and "sting" operations. ,Ve are optimistic enforcement when the benefits of such programs that there is more yet to learn, but we can make no will redound to the advantage of citizens promises. everywhere. Other of our recommendations may Ihave little The local jurisdiction faces an acute law immediate effect on crime but are important enforcement emergency because- nonetheless. The citizen wants safety and expects • Federal policy or geographic location has placed justice; too often, he or she gets neither. Citizens will a heavy burden on some state or locality (as when never understand the failure of the criminal justice large numbers of immigrants come to one or a few system to excuse the innocent and punish the guilty. states as a result of federal policy or federal judges ,Vhen guilty persons go free because an officer acting mandate higher prison management standards). in good faith seizes evidence that is thrown out of • The locality manifestly lacks the fiscal resources court on a technicality, when a convicted person to try, on a demonstration basis, new law evades punishment by countless and often trivial enforcement methods that have proven value. appeals, when judges give sentences that are so • Natural disasters or manmade emergencies disparate as to bear little systematic relation to the threaten a breakdown of social order beyond the magnitude of the offense or the record of the control of local resources. offender, when convicted offenders who have Provisions of the Federal Constitution or of previously abused the privilege of bail are given bail federal law are int€rpreted as setting procedural again-when these and other apparent injustices requirements for state and local law enforcement occur, the citizen is not simply fearful, he or she is agencies. Most of these procedural requirements angry. ,Ve must make every effort to assure the reflect decisions by federal judges who are integrity of the criminal justice system, and do so applying constitutional tests to local practice. We without weakening those fundamental rights that believe that Congress should, where appropriate, are essential to a system of ordered liberty. clarify and modify these requirements in order to Though we were charged with offering maintain the necessary balance between liberty recommendations concerning violent crime, we and order and to ensure that the remedy for any realized quickly that the distinction between violent violation of a rule is proportional to the magnitude and nonviolent offenders, clear in principle, is of the violation. difficult to maintain in practice. A given thief may The recommendations that follow are those that, in use violence on one occasion and not on another; our eyes, both meet these criteria and have some drug trafficking may lead to violence under certain practical value. In the commentary attached to each, circumstances and not others; a person in prison may we expand on and interpret these criteria. be a violent offender but be incarcerated for having How confident are we that these proposals, if committed a nonviolent crime. ,Ve have therefore adopted, will affect the rate of serious, violent crime? adopted the custom of referring in this report to "Ve can offer few general assurances on this score. ,Ve serious crime, by which we mean violent crime and think that the provision of more and higher quality those obher serious offenses-such as arson, drug correctional facilities will ease the problem faced now trafficking, weapons offenses, and household burglaries--that mayor may not lead to injury. . by almost all states of dealing swiftly, certainly, i, and fairly with convicted offenders and that this,

Phase I Recommendations 3 ~ 1nt1'oductiol1 353-069 0 - 81 - 2

, , , ----...... ,..,.~I'- -

r- \ r- u.s. Department. of Justice

Attorney General's Task Force on Violent Crime

WasHington, D.C. 20530 Griffin B. Bell Co-Chairman June 17, 1981 James R. Thompson Co-Chairman David L. Armstrong Frank G. Carrington Robert L. Edwards William 1.-. Hart Wilbur F. Littlefield The Honorable William French Smith James Q. Wilson Attorney General Department of Justice Jeffrey Harris Washington, D.C. 20530 Executive Director

Dear Mr. Attorney General:

Pursuant to your directive of April 10, 1981, the Task Force on Violent Crime presents its Phase I recommendations on ways in which the Federal Government can improve its efforts to control violent crime.

These recommendations are offered in keeping with your require­ ment that proposals made in Phase I should not require new legislation or additional funding. While'we recognize that many other agencies of the Federal Government exercise direct law enforcement responsi­ bilities, our proposals chiefly contemplate those actions that can be taken by or within the Department of Justice.

As you have directed, our efforts during this first phase have been aimed at suggesting steps the Department of Justice could take immediately to enhance efforts at combatting violent crime. Thus, we have not addressed the many social and economic factors that touch upon these matters and may tend to increase or decrease crime rates.

Our own experience teaches, and the testimony we have heard confirms, the fact that the control of crime and the administration of justice are primarily the concern of state and local governments, and of private citizens. The Federal Government should do whatever it reasonably can to assist in these efforts, it should avoid policies that may make matters worse for state and local governments, and it should conduct the investigation and prosecution of violent federal offenders in an exemplary fashion. However, it cannot and shQuld not suppose that the Federal Government can take the place of state, local and citizen efforts.

During its Phase II deliberations, the Ta~k Force will consider programs that require changes in federal law or expenditures. As you are aware, however, there are many areas that cannot be considered ~ exclusively as Phase I or Phase II matter. Therefore, we wish to II

Phase 1 Recommelldatiolls 5

it ". ; 1 ~i I 11'1"'. j' - ~ ------~ ------~------~-

emphasize two facts: First, some matters of urgent concern could not be considered in our Phase I report. Second, some matters that are addressed in our Phase I report may also be the subject of The FBI divides its law enforcement activities into three levels of priority. Apprehension of further re?ommendations in our Phase II report. Nothing in this Recommendation 1 report should be read as precluding further action by the Task Force. fugitives covered by the Fugitive Felon Act is a The Attol'lley General should examine the third-level activity. FBI resources used to loca.te and In the short, 60-day Phase I period we have not attempted to feasibility of designating a single federal law apprehend felleral fugitives are directed primarily prov~de detailed bl,:eprints for action. 'Instead, we have given' you enforcement agency to coordinate all federal and at persons ,,'anted for violent crimes, for crimes conclse. recom~enda~l~ns followed by discussion of some background of state unln.wful flight to avoid prosecution and resulting in the loss 01' destruction of property valued the ~roolems ldentlfled. Implementation of some recommendations will other fugitive activities. Higher priority should at more than $25,000, and for crimes involving requlre ~taff wO:k by the Department of Justice; implementation of be given to locating and apprehending violence­ substantial trafficking in narcotics. prone offenders, major drug traffickers, and other oth~rs wlII requlre the cooperation of other government agencies. We The U.S. Marshals Service, which has been major violators.l be~leve tha~ all units of government must work together against violent apprehending and investigating fugitive cases crlme. It lS our hope that every agency you contact will respond throughout its history, was given, in 1979, the added promptly and positively. responsibility of escaped federal prisoners and Commentary post-conviction parole, probation, and bond default ,To aid in the development of our recommendations, we met in Only a small fraction of all crimes known to the warrants-fugitive matters that had been the Washlngton, Atlanta, .Los An~eles and Chicago during this first phase police are solved by n.n arrest. At the same time, a responsibility of the FBI. The U.S. Marshals of our effort. Publlc testlmony was received from federal state small number of repeat offenders commit a large Senice gives highest priority to apprehending ~nd ~ocal offi?ials as well as from leading experts in cri~inal ' share of all serious crimes. 'Vhile improving the fugiti"es who yiolate parole or probation, who Justlce o~eratlons and representatives of major public interest groups. ability of In.w enforcement agencies to solve crimes escape from prison, or who fail to appear for In each ?lty, we held roundtable discussions on the issues presented reported to them is obviously of great importance, processing after conviction. The next highest and examl~e~ methods,for re~olving problems. During Phase II, we plan of even greater importance is ensuring that those priority is given to felony warrants from other to hold slmllar publlc hearlngs in Detroit, Miami, and New York. that are solved by an n.rr0st proceed to prosecution agencies. n.nd, if convictions ensue, to punishment. The second phase of our work has already begun. We fully expect Other fe-deral agencies with law enforcement to have a final series of recommendations ready for your consideration Unfortunately, n. In.rge number of persons accused functions, such as the Drug Enforcement by mid-August, of, or convicted of, a crime become fugitives from Administration (DEA) am1 the Internal Revenue the la:w, thus defeating the value of the efforts Set'dce (IRS), also execute warrants for persons Respectfully submitted, n.lreacly made to apprehend them. Since we must accused of violating laws. In many instances, economize on scarce law enforcement resources, it however, they depend on the U.S. Marshals mn.kes sense to n.ssign a high priority to ensuring the Service to exeeute these warrants 01' on the FBI for apprehension and punishment of persons already assistance. Griffin B. Bell known to be serious offenders. Linking the efforts of federal, state, and local Co-Chairman As of April 24, 1981, the Federal Bureau of agencies is the National Orime Information Ce]lter, Investign.tion's (FBI) National Crime Information It computerized system which includes federal, Oenter listed 180,649 fugitive warrants. Of these, 82 state, and local warrants. Use of this system allows percent were local warrants, 1.4 percent were FBI agencies to make rapid ehccks to see if a warrant warrants, and the remainder 'were military or other is pending against a person who, for example, has federal agency warrants. Of the total warrants, been stopped for a tra.ffic violation. 42,190 were for violent offenders. Of these, 2,571 ,Vith the transfer of seveml functions relating to rank G. Carr'ngton were FBI, 2,675 were other federal n.gencies, and fugitiycs to the U.S. Marshals Service in 1979, 4 were military. the FBI lost some personnel. Given the priority level assigned to fugitive apprehension, the FBI Federal responsibility for apprehending fugitives is bC'lieyes it is C'Ul'rently devoting the mn. "imum - ~~)( ~~ divided primarily between two agencies: the FBI Q~~Robert L. Edwards ... resources possible to that function. The FBI relies a es Q.liFilson and the U.S. Mn.rshn.ls Service. on state and local goYel'llments to inform it about The FBI is responsible for apprehending fugitives fllgitiYes that should be investigated under the who commit any of a large number of federal Fugitive Felon Art. The FBI also relies on state and Harris crimes or n.re coyerec1 by the Fugitive Felon Act local governments to notify it only n.bout the most Director (unlawful flight to avoid prosecution). The serious fugitive cases so as to conserve limited latter are fugitives who hn.ve felony wn.rrants investigative mn.n power. Similn.rly, other federal outstanding with state authorities. In such cases, agencies notify the U.S. Marshals Ser\rice about there is credible evidence the fugitive has crossed which fugitive cases the agencies will hn,nclle ond stn.te lines and the state authority agrees to which cases require the work of the U.S. Marshals 6 Phase I Recommemlations extradite if required. Service.

Phase I Recommendations '{ '.

.:* ) ,_. -}Jt'*' •• ------

Under the current structure, there is a tremendous potential for overlap of investigations. In some Originally intended to prevent the interference last word on the form military assistance to law Recommendation 2 instances this results in interagency cooperation of federal troops in the South during enforcement can take, has tended to construe the that is helpful; in others, however, it may result The Attorney General should invoke his Reconstruction, the Act is now seen as embodying Posse Comitatus Act narrowly. Significantly, the in duplication of effort or interference. There are authority under Title' 21 of the United States the extremely important principle that the Armed Department has stated that, where troops are procedures designed to avoid this situation, but the Code and request the United States N a.vy to Forces should be separate from and not interferc engaged in an activity serving a primarily military potential exists. assist in detecting ail' and sea drug traffic. 1 with the work of domestic law enforcement, thus purpose, the Posse Comitatus Act is not violated by minimizing the possibility of a police state and nny -inoidental benefit to civilian law enforcement. Potentially, any gh'en warrant could be worked preventing the military from being distracted Otherwise, legitimate military activities may not be on by anyone of seyeral federal, state, and local Commentary from its primary task. Although the Nayy and undertaken for the purpose of providing assistance agencies. At the same time, there is a potential Tor Marines are not mentioned in the Act, they have to civilian law enforcement. gaps in investigation, with the possibility that The military now assists domestic law enforcement passed their own Posse Comitatus regulations no agency "ould be working on any given warrant. activities in various ways. These activities include (SECNAVINST 5820.7, May 15, 1974). The The Coast Guard and DEA would like increased training and support in explosiYf~ ordnance ..:\ct has been interpreted to mean the Army or assistance from the military. The Department of One area of potential overlap occurs in the separa­ disposal, polygraph training, developing plans Justice has written legal opinions stating that these tion of functions between the FBI and the U.S. Ai?' F01'oe shall not engage in "direct assistance" and procedures for protecting facilities vital to to law enforcement including but not limited to requests, if granted, would violate the Posse Marshals Service. The U.S. Marshals Sen'ice mny the national defense, and protecting foreign arrest, search and seizure, and pursuit or Comitatus Act and the Navy's Posse Comitr.tus receive jurisdiction oyer a case that had preyiollsly officials visiting the United States. surveillance of a criminal suspect. regulations (if the Attorney General does not invoke been investigated by tJle FBI. The potential fol' his authority under Title 21). The Department of The primary area of domestic law enforcement this is clearly illustrated in the. area of bail where Section 873 (b) of 21 U.S. C., u. provision of the Defense has been reluctant to involve itself in support, however, is in helping the U.S. the FBI has jurisdiction over persons who jump comprehensive, Drug Abuse Prevention and activities it sees as outside its basic mission. However, Customs Ser\'ice, Drug Enforcement bail prior to conyiction and the U.S. Marshals Control Act of 1970, 84 Stat. 1242, directs that- without necessitating any statutory changes, it Administration (DEA), and Immigration and Service has jurisdiction oyer persons who jump ,Vhen requested by the Attorney General, it appears that increased assistance can be given by tlhe Naturalization Service in their attempts to bail after conviction. shall be the duty of any agency or Navy to domestic law enforcement. In particular, interdict illegal substances entering the United instrumentality of the Federal Government the Attorney General under the authority vested in In this phase of our work, we are concerned with States. This assistance has included loan or to furnish assistance, including technical him uncleI' Title 21 of the United States Code may two primary issues: (1) the low priority giyen by transfer of surplus military equipment to these ad vice, to him for carrying out his functions request additional assistance fro111 the Navy to help the FBI to individuals wanted under the Fugitive agencies (including fixed- and rotary-wing under this subchapter ... stem the flow of illegal drugs into the country, and Felon Act and by other federal law enforcement aircraft and communicational sensor equipment), we recommend that the Attorney General do so. agencies to the location and apprehension of training in the operation 'Of equipment, use of The Posse Comitatus Act has been interpreted to fugitives; and (2) the lack of coordination and the research and airfield facilities, and provision of take precedence over this law, thus constraining the IH making this Phase I recommendation, we do not overlap and competition that exists among all federal, intelligence about possible chug smuggling assistance the Army and Ail' Force can offer. preclude further recommendations relating to this state, and local agencies engaged in locating and collected in the normal course of military However, this section of the Drug Abuse Prevention topic in Phase II of our work, in which we may apprehending fugitives. ,Ve believe that the activities. RepresentatiYes of DEA and the Coast and Control Act is interpreted to take precedence consider changes in legislation and funding levels. Attorney General could make a positive impact on Guard believe that an extension of these activities over the Navy's Posse Comitatus regulation, violent crime by coordinating efforts to apprehend in various ways would be extremely helpful. For therefore permitting the Attorney General to request Note fugitives and by giving high priority to the instance, the Coast Guard contends that, with a the assistance of the Navy. 1. ,Ve also address narcotics in Phase II apprehension of violence-prone offenders, major substantial increase in thc availability of There is disagreement among all parties concerning Recommendation 16. drug traffickers, and other major violators. Department of Defense resources such as what can and cannot be done in interdicting drug helicopter-capable ships, patrol vessels, fixed-wing smuggling without violating the Posse Comitatus Note search aircraft, and short-range helicopters, it 1. ,Ve also address fugitives in Phltse II could interdict or' deter 50 to 75 percent of the Act. The Coast Guard and DEA would like more to be done, including having the Air Forct'! sche(lule Recommendation 43. marijuana smuggled into the United States by sea. training flights over particular areas at times when drug smuggling is Suspp.cted and passing on more Military assistance to domestic law enforcement information to DEA and the Coast Guard. The is carefully proscribed by the Posse Comitatus Department of Defense has generally believed that Act, 18 U.S.C. 1385, which provides- its mission does not involve domestic law ,Vhoever, except in cases and under enforcement and has tended to interpret the Posse circumstances expressly authorized by the Comitatus Act quite strictly. Thus, for instance, the Constitution or Act of Congress, willfully uses Navy is duty bound to respond to the Attorney any part of the Army or Air F01'oe as a posse General's request for assistance in stopping drug comitatus or otherwise to execute the laws smuggling; however, where the Navy can exercise shall be fined not more than $10,000 or discretion in how to respond, it is under no statutory imprisoned not more than 2 years, or both. duty to assist the Coast Guard. The Navy has refused [emphasis added] certain requests for assistance from the Coast Guard. Similarly, the Department of Justice, which has the

8 Phasp, I Reoorrvmendations I Phase 1 Reoomrnendatiom 9 I' ~--~"f -----~-

years, the Bureau of Prisons, for examp~e~ l~as been Recommendation 3 able to acquire two surplus milittt~y iaClIttleS and Recommendation 4 State A would have to query those states as well. convert them into minimum secunty camps. he ,:Vith the exception of a grant from I.JEAA's Tl .1:lttol'ney General should work with the :r The Federal Bureau of Investigation should process took from 6 to 18 months an:l ~onve,rslOn National Criminal Justice Information and Ie'.)1'0 )I-iate O'overmnental autI 101'1 'f les t 0 1nal'e < ~ costs ranged from $500,000 to $2 mllhon. establish the Interstate Idcntification Index Statistics Scrvice to upgrade the system in the aPr, I b I I and where feasible, abandoned (III).l aVaIlable, as neee ee l' , early 1970's, NLETS is supported solely by the mIl'l't ary" basns for use by, states "andloca IhesI as The Armed Forces should be surveyed t~ det~rm~n,e states and federal users at the rate of $1,000 per t: 1 facilities on an ll1terlll1 aIle t I Ie a VUl'I a b'Il'tyI of such facilities and'1 theu' SUItabIlIty correc IOna Att ' 1 r month per state or federal user. emel'O'ency b aSlS' 0111,·,r' Furthm', the 0ll1e}, t for correctional purposes. In some lllstances t Ie Commentary Gene~al should work with the apprO~)l'Ia e federal buildings could be taken over almost NLETS has several advantages. First, it is The need for timely exchange of criminal history O'overnmental authoriti~s to make ava~labl~, as lll1me. d'Ia t e1 y., Flo,"ever , since many would not meet. I operational and does not require tIle expenditure ~eeded and where feasIble, federal YlOpel y the nationally-recognized standards for correchona information among agencies and jurisdicttions has of federal funds. It is attractive to those who argue long been recognized. Recommendations to this for use by states and localities as sItes for institutions, it is critical that they be nsed only on an that the best system is one that is owned and effect were made by both the 1967 report of The correctional facilities,l interim and emergency basis. It is clea:ly ll~t o~rO' operated by those who own the records. This President's C'Alml11ission on Law Enforcement and intention to provide states the alternatIve of,usm concern has been raised by Oongress in the past. -'------b Administration of Justice and the 1973 report of the dilapidated military barracks inste~~ ?f th:lr , National Advisory Commission on Criminal Justice The NLETS system, however, has shortcomings Commentary building or repairing their own fa,Clhbes, "here, Standards and Goals. Law enforcement agencies in the exchange of criminal history information. d d Should there be an exceptIOnal case where \. f January 1 1981, approxul1a, t e1 y 315 ,000 nee e . . bl f ' need sueh information for investigative purposes; Beeallse it has no index of ofi'endC'r records, inquiries a federal installation is m~del'l1 an~ smta e. 01 tn~l~rie;uals w~re'incarceratecl in all state al~d the 51 pl'OSecutOl's and judges need it for charging, trial, must be made to each state to determine if a record conversion into nn institutIon meet~ng ~'eco~n~zed federal correchona1ll1s, 't't 1 u t'IOns, On, an"J b,O'lven elr ay,l' and senteneing decisions; and correctional agencies exists. There is a program that allows simultaneous standards, the proscription regardmg mternl1 and an aell e Ilona't' 111':)8 , ,000 l)ersons are, bell1g heldt m f 0' e need it for selecting appropriate placement and inquiry to all states, but each state must then 3500 local jails, In the states, the pe;'cen 0, emergency use only need not apply. treatment of offenders. resl)ond indiviclually to the requester. Some have

prIsoners' , bel'llO'b llelel for crin1('s of VIOlenceT IS't' In terms of federal property generally, the .. questioned the level of security possible through t ..:\..t present, thcre. are a number of methods by which NLETS. TIley believe the logging system is es una' t ecI to be between 47 and, 57 percent. t\ farIa ,the lOllS O'overnment should seek to assist states an~ 10c~htIes 111' CI efi 111't' IOns of tIle term "VIolent" accoun 01 states can exchange criminal history record inadequate to pt'ovide necessary audit trails, but ~ith the difficult task of locating a~)propl'late SItes information. The, three major systems am: the range, for correctional facilities. Such aSSIstance may, there is disagreement on this point. Finally, National Law Enforcement Telecommunications include making suitable federal pr?perty readIly , NLETS is not a:ble to enforce national policy G'ven information on the number and types of Systems, Inc. (NLETS), the Oomputerized Criminal governing information exchange. ' 'I ble to these O'overnmental umts. Such propelty lllcarcera, I t ecI offenclers- , thG issue becomesd the t I MaIa b tl History (CCH) system of the Federa.l Bureau of could be either surplus federal property or 10S~ CapaCI}'t • of tIle correctional system, ,to 'd'a equa f e y Investigation's (FBI) National Crime Information The FBI operates the Computerized Crimil1!t1 portions of active federal entities currel~tly not m handle the individuals under Its JurIs ~c ~on'l Center (NeIC), and the fingerprint service of the History (CCH) system containing 1.8 million use. ,:V e recog"lize that obstacles may eXIst to ~u~l Ourrently most states are eitho:' under ° ec era FBI's Identification Division. Each system, with its criminal history records as a part of NCIC. implementation of this suggestion. However, It IS court ord~r or involved in litigatI,o~1 related to major strengths and weaknesses, is discussed below. Ourrently 4:9 st.ates can access the OCH files, but , , 'clI'nO' Correctional practItIOners and likely that they can be overco~ne with the firm support only 8 states enter crimina.l history records into OVClcro" t->' d' the I I dO'eable observers cite overcrow mg as of the Attorney General, wl11ch we so recommend. NLETS is a state sUpported and operated tIle COH system. It has been estimated by an GlOW e b . t' t d As number one problem facing correc IOns ? ay, telecommunications system which began operation independent study that slightly less than half of f 'bacl' ns June 1977 a nationwide defiCIt of 111?re Notes in 1966. All states except Hawaii currently Use the the CCH records dissemina ted in a recent year al «. , d S' tl t tIme tl 20000~ beds was acknowledge, lllce Ill, , 1. ,Ve also address prison overcrowding in Phase NLETS system. About 5 miWon mC'ssages are sent were complete with unambiguous disposition data. correctional~ , populations have ll1creasec'l~re • II Recommendations 54 through 56. ove.r -the system monthly, of which 2 percent are CCH is the type of system that many consider to estimated to involve the exchange of criminal history rapidly than the creation of new bedspace,- 2. ,:Ve have noted the decision of the U,S. Supr;ll1e be tIle most efficient, secure, and effective interstate information. The bulk of the messages, estimated at criminal history exchange system. In a truly O 1 t ' n to this I)roblem is to build more Court in Rhodes v. Ohapma.n, No. 8?-332 ~ June ID~ 10 , 70 to 75 percent, arG on motor vehicle registrations, national COH system, all availa.ble criminal facilities,ne so u However, assuming bUll,d' mg wou IIc b,e done 1981), which holds that dO:lble-cell.m~ of mmate~ l~ driver's license checks, and similar department of history information could be obtained with one , t It '''1'tIl 11ationally recoglUzed standal ds not per se constitutionally 11l1permlsslble. H?we, Cl, conSlS el" <, "r II motor vehicles topics. Criminal history information for square footage, more than $10, blll~on "ou c ovel'crowdinO' and associated problems remmn.a inquiry. Additionally, because it is a national system is exchanged in a type of message different from rlln by a federal agency, it is possible to adopt and probably be needed for constructIon JUs~ to serious conce~'n. Efforts to allevi,ate overcrowdmg those used for ot,her messages to assist the states in late tIle enforce a poliey governing security, pdvaey, accommoc Current inmate populatIon,, GO In must continue to be a high priority for federal, state, following their individual stare policies with regard addition, building takes considerable tune, ,l,ven and local governments, accuracy, and completeness of record informat.ion. to such exchange, NLETS is currently operating at For the same reason, it is possible to require that the immediacy of the need, the level of the Cl'lSlS about 8 percent of its system capacity. is too great to delay action, participating states USe standard offense and Under the NLETS system, if Sta te A has reason disposition cu.(oegories so that users in one stato can The federal government is in a unique position to to bGlievo that a person has a record in State B, understand the information they have received make property available to other governmental I it would send an inquiry to State B. If a record without having to know the meaning of thG various t 't' at least on a temporary basis, The Armec state statute names and codes. en! les, 'l't' tJ tare existed, State B would transmit the information Forces has a number of military faCl 1 leS .1a back to State A. However, the person may have currently abandoned or underutilized, In recent The CCH data base is not without its weaknesses, a record in several states; to obtain those records, lwwQvel'. First, the existing system has records from only eight states. It has been argued that states

10 Phase I Recommendations Phase I Rec01nmendations 11

~ I 61"* •

nre reluctant to participate because they would lose Each of these three major systems has strengths procedures for assigning identification numbers to control over the dissemination of records they would and weaknesses. To provide nn improved system the records, matching fingerprints on records from bubmit to the FBI: their records would be given for the interstate exclmnge of criminnl history multiple states, and investigating and approving the Recommendation 5 to other states without their knowledge and perhaps information that is acceptnble to n wide range of legitimacy of requesting agencies. The FBI also is The Federal Bureau of Investigation should in violation of their state policy. Opposition has potentinl participants, the FBI is currently able to develop and enforce national policy governing examine the feasibility of a separate registry of come also from persons who are concerned that proposing a concept called the "Interstate the use of the system. Finally, this proposal firearms violators.1 this would be the fb'st step towards a national FBI Identification Index" (III), sometimes called appnrently has the support of many of the data base on all citizens. "Triple I." This proposnl has received the support participants in the acrimonious debates of the past The third operating national system of criminal of NLETS and the NCIC Advisory Policy Bonrd. decade. A Jet Propulsion Laboratory study found Commentary history information exchange is the fingerprint file The III would be n decentralized system under that personnel in existing state criminal information An offender's firearm 'was present in one-tenth of system operated by the FBI's Identification which the states would retain criminnl history systems showed "overwhelming preference" for such Didsion, 'Which is organizationally separate from records for persons arrested in their states nnd a national index, nndnearly 60 percent favored the rape, robbery, and assault victimizations that t,he NCrC's CCH system. It has fingerprint cards the FBI's NCIC would maintain an index for these placement in the FBI. occurred in 1979. In more than 350,000 of these 1'ictimizatiol1s the victim actually suffered a gun- for 21 million persons arrested by state ancllocal records. Depending on the final design, the FBI Arguments against such a system come from those shot wound. Additionally, more than 13,000 mUl'Clel'S authcrities. In fiscal 1980, the Division recei1'ed an mayor mny not ?'etain the actunl records for who believe that the federal government has no (63 percent of the total in 1979) were committed average of 43,690 pieces of mail each day, of which persons with arrests in more than one state. The legitimate role in the interstate exchange of stnte 25,120 were fingerprint cards and 18,570 were index would contain only personal identifiers of criminal history information. with a firearm. How many of the offenders in these requests for nam3 checks and other correspondence. the individual, the FBI number, and the crimes had a history of fir?UI'lllS viohtions or violent Only 38 percent of t}'e Division's fiscal 1979 total identification number of the state where the record It has also been argued that the principnl users of offenses involving firearms is not known. criminal history information are (or should be) workload entailed requests from state and local is located. The index would be limited to offenders "rebel ilwe that n separa.te registry of firearms criminal justice agencies, howe1'er. The remainder with fingerprint cards on file at the FBI. Wl1en non-law enforcenwnt agencies such as prosecutors, courts, and correctional agencies-institutions which, Yiolators, maintainecl as n part of the FBI's NCIC was distributed as fol1:>ws: federal criminal checks, nn authorized agency in State A made an inquiry system, could serve a number of beneficial purposes. 5 percent; federal job applicants, 42 percent; state to the FBI, and the index indicated that State B for a variety of reasons, may be reluctnnt to rely on n federal law enforcement agency for infol'mntion. First, such records could be accessed by the Secret and local job applicants, 15 percent. had a record on the indh Idual, the FBI would notify Service to determine which persons in nn area the the requesting agency of the existence and location Another concern is how many states would actunlly ,'{hen a criminal justice agency makes a request for participate in n national III system. Finally, some President (or other dignitaries) planned to visit had of the record. It would then be up to the two states infom~ation from the Identification Division and a contend that there are no current plans to merge the records of firea.rms violations. Lnw enforcement to exchange the criminal history information using record is found for the indi\·idual, the FBI returns III with tl}e activities of the Identification Division, oflicers, in making a routine traflic stop or serving a NLETS or whate1'er mechanism they desire; the a "RAP sheet" to the requesting agency. This RAP thus resulting in two separate systems that would be "'arrant, could determine, in the same way they now record information would not be transmitted sheet contains arrest and disposition information duplicative, costly, and inefficient. check for outstanding wurrants and for stolen that has been submitted to the FBI. It has been through the FBI. property, whether the subject had a history of violent lYe believe that the III is n promising development estimated by an independent study that only about In 1979, an estimated 370,000 adult violent crime offenses with firearms and exercise due caution in in the exchnnge of criminal history information. one-quarter of the records disseminated in a recent arrests ""ere made in the Unitecl States. Of these, c1enling with the individual. Offenders with firearm After reviewing the need for the interstate exchange year were complete with unambiguous disposition nbout 30 percent or 111,000 arrestees had n multi­ violntioll records could be more mpidly identifie~l for data. state record. A fully operational III system could or criminal history infol'mation and the advnntages arrest, bnil, charging, nrmignment, and judicial and disad,vantages of the various existing systems, processing than would be possible under the The Identification Division is currently automating have provided the means for the arresting states to lenrn of the out-oI-state criminal history of these we recommend that the FBI establish the III. Our Interstate Identification Index discussed in its fingerprint fi~es and r;latching procedures to arrestees. recommendntion does not preclude additionnl Phase Recommendation 4. provide more rapid turnaround time. Turnaround /' II recommendntiolls on this subject, however. time currently averages about 25 working days The FBI began a pilot test of the III on Because of these potentia.] benefits, we recommend according to the FBI. However, a November 1980 June 29, 1981. The State of Florida is the initial I' Note that the FBI examine the feasibility of establishing evaluation report by the Jet Propulsion Laboratory participant in the test. The other seven states I n sepamte registry of firearms violators. ! 1. "Ve also address the exchnnge of criminal (JPL), estimated the average response time for participating in CCH will be added to the prototype • t history information in Phase II Recollunendntions Note requests from criminal justice agencies at 72 days for index when they meet the III technicnl requirements; 47 through 50. individuals 'With an existing criminal record and 55 the FBI estimates that this should be accomplished 1. W' e nlso address firearms in Phase II days for those without one. by October 1981. Recommendations 17 through 22. The low proportion of records with disposition This type of decentralized system offers the i 1 information and the length of response time are advantage of a single national index which reduces ) the major weaknesses of the Identification Division's the number of inquiries nn agency need make to find operation as regards the interstate exchange of a record in another state. Although such an index I. criminal history infol'mation for criminal justice could be developed and maintained by a consortium , J purposes. One to three months is an intolerable of states, placement in the FBI could reduce I delay for criminal justice processing purposes. duplication by eventually merging the III system I I with the fingerprint function of the Identificntion 1·, Division. Additionally, the FBI has estnblished r 1~ Phase I Recommendatio1UJ r P1WJle I Recommendations 13 I ~L ' II'Jti'* .,

, appears to depend largely on the individual per­ sonalities involved. Finally, the Department of Recommendation 6 in improving federal, sta,te, and local cooperation, Subcommittees. The full committee ordinarily Justice in recent years has not accorded high priority the impetus must come from the only nationally will be too large to be an effective forum for workinO' E> The Attorney General should mandate the United to promoting and supporting the committees. organized law enforcement entity-that of the out specific problems. Hence, each committee States Attorneys to establish law enforcement Exemttive 'wol'king group. l'he Executive federal government. should establish subcommittees on the subjects coordinating committees in each federal district. vVorking Gronp fer Federal-State-Local Prosecu­ vVe recommend that the Attorney General direct of significance to the district. For exanlple, subcom­ torial Relations was formed in December 11)79 to U.S. Attorneys to establish a Law Enforcement mittees usually will be appropriate on such subjects provide a vehicle for improving intergovernmental as-- Commentary Coordinating Committee in each federal district. law enforcement relations. The members consist of Federal courts and prosecutorial activities are Violent crime (certain concurrent jurisdiction Distinctions among federal, state, and local six representatives of the National District Attorneys organized around the federal district, making it offenses, such as firearms violations, may require jl1l'isdictions do not hamper criminals. Neither Association (NDAA), six from the National As­ the most practical geographical unit on which to a separate subcommittee) . should jurisdictional divisions be allowed to sociation of Attorneys General (NAAG), and six base federal, sta.te, and local cooperation. This would Drug enforcement. impede unnecessal'ily criminal investigations and from the Department of Justice (currently four not, however, preclude two or more districts within Crime prevention. prosecutions. In each area of the country, federal, Criminal Division officials and two US. Attorneys). the same state deciding to form a single committee. state, and local resources availu:ble for law Staff support is provided by the newly-formed Economic crime and fraud. enfo{'cement are limited. Coordinating the use The committee membership should include the Office of Law Enforcement Coordination in the RoZe of u.s. Att01'neys. The Attorney General of these resources the fullest extent possible will principal federal, state, and local law enforcement to Criminal Division. In April 1981, Department of should direct all U.S. Attorneys to participate produce the most effective law enforcement at all officials in the district. The US. Attorney, acting on .J ustice officials in the new Administration met with in the formation of law enforcement coordination levels of goyernment. This especially is true behalf of the Attorney General, should take tille officers of NDAA and NAAG to reconstitute the committees in their districts. The US. Attorneys regarding the federal response to violent crime. initiative in forming the committee, but state and Executh'e ,Vorking Group and elect new mem- should be required to report to the Attorney General Because most violent crime prosecution is conducted local partici'pation should be voluntary and bers. This group provides a national fornm for law on the formation of the committee and its anticipated by state and local authorities, it is important that cooperative. enforcement coordination efforts. The group's activities. Periodic progress reports also should fedeml officials be as supportive as possible of agenda contemplates participation i.n the effort :Many districts already have some type of federal­ be required. state and local police and prosecutors. to structure law enforcement coordination com­ state-local committee. In such cases, this proposal is The U.S. Attorney should be responsible for ensuring Our understanding of the present situation reveals mittees throughout the country. intended to build up:)n, not replace, such efforts. propel' participation by all federal law enforcement that a satisfactory level of cooperation among Each committee should concentrate on the particular Informal aJ'I'angements. In many areas of the agencies. ,Vhere a US. Attorney cannot obtain federal, state, and local law enforcement officials law enforcement needs of its district. "ThHe com­ country no actiYe, 101'mal arrangements exist for adequate cooperation from a federal agency at does not now exist in every jurisdiction. Frequently mittee operations will vary substantially from federal, state, and local law enforcement cooperation. the district level, the matter should be referred there appe:u,l'S to be a lack of initiative on the part district to district, certain requirements should be Neyertheless, key law enforcement officials often to the Department of Justice for resolution. In of all officials in opening the requisite r.hannels met by all committees. These include- haye good working relationships. In such situations, addition, the U.S. Attorney should ensure that of communication. ,Ve believe that this situation, however, communication among law enforceme.nt j11 e7nbe1'ship. Committee memberships should proper facilities are available for committee in which federal, state, u,nd local law enforcement. officials at different levels of government occurs include the heads of the federaJ, state, and local meetings. officials often chart separate paths without consulting primarily in conjunction with pa.rticular problems prosecutorial and other law enforcement agencies one another, is not in the best interest of the public. in specific cases. Routine sharing of inte11igence and offices with significant criminal jurisdiction in The Attorney General should impress on the U.S. Relations among federal, state, and locu,l law information, joint investigations and prosecutions, the district, as well as criminal justice experts from Attorneys the importance of these committees, mandate the U.S. Attorneys' responsibility and enforcement also vary greatly in both form and 01' planning for resource allocation or overall law the private sector as appropriate. The meetings Hffectiveness among the federal districts. In enforcement strategy generally does not result. The should be attended by ,principals only. The Executive participation, and voice his support for the reviewing present practices, we found that the f,uccess of such arrangement.s aJso is highly ,Vorking Group can assist in identifying appropriate committees' effective operation. following mechanisms now are used to coordinate dependent upon Hie personalities of the officials state and local prosecutors and encouraging tUleir federal, state, and local law enforcement activities: involved. participation. Federal-state-locallaw enf01'cement commit- To summarize, lederal, state, and local law Dist7iot plan. Soon after organizing, each com­ tees. It is not precisely known how many actively enforcement cooperation around the country ranges mittee should formulate a locallu:w enforcement operating federal-state-locallaw enlorcement from "ery good to nOlmxistent. As a result, the cooperation plan. The plan should identify law committees there now are. ,Vhat is evident, however, response to crime by allle.vels of government is less enforcement needs and priorities within the district is that eA.-1sting committees vary significantly in effective than it could be with a coordinated and pinpoint areas where improved federal, state, scope and effectiveness. Origin,ally conceived as system. and local cooperation is likely to produce the greatest public benefit. federal-state law enforcement committees headed by The Department of Justice has given U.S. the State Attorney General, they have typically Attorneys little direction in this area. This lapse evolved into federal district organizations with the is particularly significant because most state and county prosecutor most often serving as the chief local prosecutors, police, and corrections officials local offic;al. There appears to be no uniformity in operate autonomously, both within their own constitution or operation, and a committee's success jurisdictions and in dealing with the federal government. If substantial progress is to be made

14 Phase I Recommendations I ;' /.,,-, Phase I Recommendation8 15 I ~ ~,

:r I ...... ------~-- ~------~------[' i. which is best for that case. Moreover, continuity r ertical pr08ecution. In many offices, one prose­ is maintained by the presence of a prosecutor .. cutor is assigned to handle a career criminal case from Recommendation 7 Recommendation 8 empowered to appear and prosecute the case in either intake through trial. This avoids the case preparation The Attorney General should expand the program court. "There different levels of conrt congestion The Attorney General should direct the National problellls that frequently result when different of cross-designation of Assistant United States exist,·or where procedural or substantive law favors Institute of Justice and other branches of the prosecutors are assigned to present the case before Attorneys and state and/or local prosecutors. one forum oYer another, or where the sentencing Department of Justice to conduct research and the magistrate, the grand jury, and the trial court. development on federal and state career criminal potential is greater in one court than in the other, Pl'08oclltor ca8eloa.d. Prosecutors assigned career programs, including programs for juvenile this program is a yery valuable adjunct to routine criminal cases generally are gh'en smaller caseloads. Commentary offenders with histories of criminal violence.1 law enforcement procedures. This allows them to prepare cases more carefully One of the main themes of our recommendations It is not expected that this program in itself will and to bring them to trial more rapidly, is that cooperation and mutual assistance are involve a large number of cases. For those cases Commentary lVitnes8 a88istance. Most programs emphasize (>ssential for eff(>cti,'e law enforcement. The cross­ affected, however, efficient and effective processing giving full and courteous attention to witnesses. The designation 1 program now operating in several In most parts of the United States, a relJ.tively small is a significant and important result. Further, the results are greater willingness by witnesses to jurisdictions demonstrates the benefit of segment of the criminal popUlation commits a establishment and eii'ecth'e use of the program appear in court, better prepared testimony by fec1eral-state-Iocal cooperation. Specifically, the disproportionately large portion of the serious crime. will substantially promote cooperation between witnesses, and increased cooperation by witnesses program has ensured that certain criminal activity These repeat offenders and recidivists are now federal and local law enforcement authorities. That (and their friends and neighbors) with police and can be investigated and prosecuted in the most result alone would be enough to establish the need generally referred to as "career criminals." 'Well­ prosecutors in the future. efficient. and effective way. The program has for such programs. organized programs by prosecutors to identify and enhanced cooperation among federal law give special prosecutorial attention to these career Limited plea bargainhlg. ~Iost programs prohibit enforcement personnel, on the one hand, and state Cross-designation programs presently exist in criminals can help ensure a speedy trial, a high or strictly limit the terms of plea agreements. Because anc1locallaw enforcement officials on the other. Milwaukee, Buffalo, and San Diego. The U.S. probability of conviction, and Ii substantial sentence cases iH'e ,yell prepared, there is no need to make Attorney and the District Attorney of San Diego for such offenders. significant concessions to defendants in exchange for The program is relatively simple in concept. testified before us as to the effectiveness of the guilty pleas. Selected prosecutors at the state and local level program. These two witnesses exhibited an A study of the records of 500 juvenile delinquents in t: Se,'eral specialized career criminal programs have arc designated as special Assistant. U.S. Attorneys impressive spirit of cooperation. They urged, as we L New York City found that 6 percent of the delin­ pursuant to section 543, Title 28, Fnited States do, that the program be expanded to all other 1. quents were responsible for 82 percent of the violent been developed by individual prosecutor's offices. In Code. Similarly, selected Assistant U.S. Attorneys jurisdictions where it might operate effectively. offenses committed by the whole group. A Honolulu Los Angeles County, a program known as "Operation are designated as assistant. state or local prosecutors study of 359 arrests in 1973 for violent offenses Hardcore" is de,'oted to the prosecution of violent pursuant. to statutory provisions that. exist. in most Note revealed that 19 percent of the persons arrested crimes committed by gangs. Among its notable states. Generally, the more experienced prosecutors, committed more than 80 percent of the offenses. In features are the inclusion of juvenile offenders for 1. For a discussion of the program, see Knoepp and familiar with both federal and state substantive other jurisdictions, the statistics are less dramatic, prosecution in both adult and juvenile court, and MIller, Oreation of the cr088-designation pl'08eclltO?' and procedurallaw, are selected for the program. but they consistently show that a large portion of extra protection for ,Yitnesses to prevent witness concept, 1 Crim. Just. J. No.2 (Spring 1977). These assignments are in addition to their regular the violent crimes are committed by a relatively intimidation by gang member8. duties; consequently, the prosecutors who are small number of offenders. In addition to Operation Hardcore, other career designated will ordinarily devote most or all of More than 100 prosecutors' offices have adopted criminal programs have begun to focus on the violent their time to their own responsibilities. special programs to prosecute career criminals. The habitual juvenile offender. As a recent Rand The cross-designation program generally comes programs vary substantially from office to office, but Corporation report noted- into play when a prosecutor begins to develop a case they have the common purpose of providing more many ... studies have found the characteristics that includes violations of both state and federal effective prosecution of the serious, repeat offender. of juvenile criminality to be the most reliable law. A cross-designation prosecutor is assigned, and, Typically, the programs have some or aU of the predictor of an adult criminal career. Those who as the investigation proceeds, the prosecutor has following characteristics: engage in serious crime at an early age are the the option of prosecuting in either a federal court Selection criteria.. Most programs concentrate on most likely to continue to commit crimes as adults. or state court, depending upon the needs of the defendants who are charged with a serious or violent Most juvenile career criminal programs, however, particular case. Here is an example of how felony and have at least one prior felony' conviction. the program works: A cross-designated state have begun only. recently. Early information on their Improyed case screening also is characteristic of most performance is promising but not yet conclusive. prosecutor, while investigating and developing programs. This includes earlier and more thorough a matter brought to him by local police authorities, checks on criminal histories and more considered The career criminal problem presents a different determines that federal law as well as state law evaluation of the merits of a case before the final issue for federal prosecutors than for state and local has been violated. The prosecutor might conclude charging decision. prosecutors. 'Vith more resources, fewer cases, and that a federal prosecution is the best approach. a limited violent crime jurisdiction, most federal At that point the prosecutor can obtain the 01'ganization. Many prosecutor's offices have prosecutors traditionally have given violent offenders assistance of federal investigators and eventually established a separate career criminal unit. close and careful attention. The Speedy Trial Act present the case to a federal grand jury and try the case in the federal court. Thus, the prosecutor assures that the case is brought in the jurisdiction

16 Pha8e I Recommendation8 Pha8e I Recommendations n I

fr I , . ~----...... ~.,-,~------~----

ensures that virtually all federal criminal cases proceed as quickly as possible and most U.S. Recommendation 9 To accomplish this end, we believe tJhe FBI should Attol'lleys' offices are organized for vertical give higher priority in its overall operations to prosecution. The Attorney General should take all steps Identification Division activities. ,Ve further believe Recommendation 11 necessary to reduce substantially the delay in Career criminal programs offer a vehicle for prompt, the Division should give priority to criminal appli­ 1 The Attorney General should expand, whf'rc processing criminal identification applications. cations oyer checks of job applicants and other effective prosecution of the serious habitual offender. possible, the training and support programs Because these offenders, as a group, commit many noncriminal requests. Further, we believe that the Recommendation 10 provided by the federal government to state and additional serious offenses if left on the street, ongoing effort to computerize the fingerprint local law enforcement personneJ.1 career criminal programs are potentially effective The Attorney General should take all steps identification process will do much to improve in protecting the public from serious crime. necessary to reduce substantially the delay in response time and that, where possible, these efforts processing requests for technical assistance from should be accelerated. ,Vhile some career criminal programs are generally Commentary state and local criminal justice agencies. In addition to priority-setting at tlhe FBI, we successful, others could be more effe.ctive with Most federal training and technical assistnnce for suggest that local law enforcement authorities must better organization. Such shortcommgs appear to state and local law enforcement. operations is do all they can to prioritize their identification result in part because local jurisdictions do not Commentary proyided by the Federal Bureau of InYestigation If have current information on the best criteria for requests. local officials present their identification (FBI), the Drug Enforcement Administration applications in this way we belieye the FBI could do identifying offenders to prosecute as career Every component of the criminal justice system must (DE':\'), and the Bureau of Alcohol, Tobacco and criminals. In addition, local prosecutors may not respond quickly to criminal activity if violent a better job of fulfilling this importa,nt criminal Firearms (ATF). be fully aware of the value of vertical prosecution, criminal behavior is to be combat<~d effectively. justice need. Federal law enforcement must respond rapidly FBI training activities are conducted at its X ational witness assistance, or other aspects of the complete In a separate but related matter, we recommend that and accurately to requests for information or Academy in Quantico, Virginia, and through its career criminal prosecution strategy. the Attorney General take all steps necessary to analysis. A high priority delivery process is essential 59 field offices. Each year, the Academy trains about reduce the delay in processing technical assistance Additional research and development needs to be for successful criminal apprehension and 1,000 state ancllocal police officers in four ll-week conducted on career criminal programs, with requests to the federal government from state and prosecution. Firearms tracing, laboratory analyses, seminars. Roughly 20 forE'ign law enforcement local criminal justice agencies. ,Ve suggest that particular attention given to programs designed and information processing are the major areas of officials attend the sessions each year. The Academy priority be given to requests for technical services for violent repeat juvenile offenders. Such research federal technical support to state and local efforts offel's assistance throngh the National Executive should atte'mpt to develop more reliable indicators such as laboratory tests on hail' and blood samples, to control violent or street crime. One important Institute for top police executh·es and through It of future criminal behavior 2 to assist federal, state, chemical analyses of ch'ugs, and handwriting federal assistance area involves criminal identifica­ wide YIlril'ty of specialized scho:)ls, special training and local prosecutors in identifying offenders who examinations. Requests made by local law enforce­ tion services provided by the Federal Bureau of programs, and symposia on topics such as homicide should receive special prosecutorial attention. ment officials frequently require fL speedy response. Investigation (FBI). training, hostage im·estigatio~l, anti-sniper tech­ The findings of these research and developrr:jt;:i1t Federal service providers must do all they can to niques, and S,VAT operations. Agents trained as efforts should be widely disseminated to federal, The FBI's Identification Division provides respond in a timely manner. police instructors teach in every FBI field office. state and local prosecutors to ensure that they are fingerprint and arrest record information to state awar~ of the most effective and efficient methods and local governments. The Division's services are Note Some 3,200 domestic and 50 foreign officials received (If prosecuting individuals who pose the greatest used in a variety of situations ranging from the 1. "Ve also address ways to reduce the baeklog in special police school training in fiscal 1980. During threat to society. clearance/identification of suspected fugitives to processing identification applications in PhaH!! II fiscal 1981, roughly 109 agent workyears of effort background checks on persons who apply for work Recommendation 50. will be engaged in field training activities at a cost Notes in banks and public safety offices. The Division's of approximately $6 million. Training in such 1. ,Ve also address research and development in workload amounts to roughly 6.5 million requests subjects as forensics, criminology, and Uniform Phase II Recommendation 53. each year. In fiscal 1979, for example, roughly 38 Crime Reporting will be c1eli,·erea to more than percent of requests received were from state 130,000 criminal justice personnel. 2. Past methods to predict future criminal L('havior and local criminal justice agencies and 5 percent have been criticized as being insufficiently 'ltccurate. were federal criminal checks; some 42 percent were During fiscal 1981, DEA will spend close to $3 Such predictions usually have been made for use for federal job applicants and 15 percent were million to support training activities covering in setting or denying bail or in sentencing. The for state and local job applicants. investigative, technical, and managerial topics. criticisms of predictions made for those purposes Classes are offered in the field at regional sites and do not apply to the present purpose because a . During fiscal 1981, the FBI will spend $61.4 million at the National Training Institute. More than 9,000 prosecutor is using the prediction only to d~termme and employ 3,023 people to support this function. federal, state, and local criminal justice personnel whether the defendant's case warrants routme or 'According to the FBI, the average response time for attended the sessions in fiscal 1980. Through its special handling. The decision is a management an identification check is 25 working days. Some International Training Division, DEA trained determination wholly within the prosecutor's estimate the response time to be even longer. We some 900 foreign law enforcement personnel during discretion, and the defendant has no particular believe this service is critical to the criminal justice fiscal 1980. Funds for this training, and for the rio-hts at stake. The use of a formula that provides system and recommend that the Attorney General 30 DEA agents who conducted the classt's, were a ~easonably accurate prediction of probable future take all steps necessary to reduce the delay. provided by the Department of State. DEA also criminality' is precise enough to be acceptable in sponsors 3-day training seminars which focus on this circumstance. clandestine laboratory investigations, intelligence, l'.11 conspiracy, smuggling investigations, regulatory i' fi investigations, and forensic chemistry. [1 p(~ 18 Phase 1 Recommendations 1\ I.; , \< Phase 1 Recommendations 19 !: 353-069 0 - 81 - 3 1/ Ii If II "i .I ---~"",,,,,,,,'~i'------

ATF traininO' is offered at Glynco, Georgia, and Note through ATE field offices. Training co:ers s~ch . 1. ,Ve also address the training of state and. local areas as firearms and arson-for-profit Inv:estlgatlOn law enforcement personnel in Phase II Recommen­ While it is generally agreed that the high level of techniques, explosives, and laboratory s~lls. Recommendation 12 dation 44. drug abuse and crime is a relatively recent phenom­ Some 2000 law enforcement personnel wIll have enon, there is no clear consensus concerning the received ATF training by the end of fiscal 1982. The Attorney General should exercise leadership in informing the American public about the factors that have caused it 01' its widespread and A fourth important federal training resource is extent of violent crime. In that connection, the extensi va nature. No OHe doubts, however, that an the Attorney General's Advocacy I~stitute. A Attol'lley General should seek to build a national atmosphere dominated by drugs, extortion, robbery, branch of the Executive Office for TI .S. Attor~eys, consensus that drug abuse, crime, and violence assault, rape, and other serious crimes is not the Institute trains Assistant U.S. Attorneys In have no rightful place in the schools and, when conducive to academic achievement. Yet the problem trial advocacy. During fiscal 1979, for example, these conditions are found to exist, vigorous persists, and school officials seem either unable or the Institute trained more than 600 attorneys criminal law enforcement should ensue. unwilling to deal with it so that education can take in such subjects as white-collar crime, narcotics, place in 'an atmosphere where both studen ts and conspiracy public corruption, and fraud. Recently, teachers do not fear for their physical safety. the has made space available in its Commentary Institu~e Despite the exceptional amount of crime that exists courses for a limited number of state and local prosecutors. The public is well aware that crime has reached in the public schools, it is not entirely clear that lruw alarming proportions in American society. Many, enforcement and the community are fully aware of Significant technical assistance actjvit~es at the FBI if not most, citizens now take precautions, such the extent of the problem. ,Ve believe that, at a include laboratory examination of eVldenc.e, finger­ as routinely locking doors and a voiding certain minimUm, the public must be made aware of the print and identification services,.aI:d the m~mtenance areas, that were unheard of in earlier generations. difficulties educators face each day because of the of criminal justice data and statJstlc~l.s~rvl~es. At The public, however, is not as aware of one of the incidence of crime in the public schools. To that end, DEA, major technical as~istan~e a~tlvltles mclude hidden substrata of the serious crime epidemic, we recommend that the Attorney General aSSume the laboratory services, joint InvestlgatIve task forces, namely tho crime taking place in a substantial responsibility of informing the American public as and drug investigative units which work Lo reduce number of our schools. Our definition of crime in to the extent of the problem of drug abuse and retail-level diversion of dangerou:> drugs. Important the schools does not include routine disciplinary violent crime in the public schools. Further, we technical assistance activities at ATF involve gun problems, pranks, and vandalism that have recommend that the Attorney General seek a national tracing, response teams for ex~losive-related always been present in public schools in varying consensus that drug abuse, crime, and violence have situations , firearms and explosIves. technology and degrees. Rathel', we refer to those schools that today no rightful place in the schools, and that vigorous expertise, and arson contrDl ass18tance. law enforcement is essential when condljtionR are confronted with gangs, law-violating youth warrant. We believe that training and technical assif,tance groups, and individual students and non-students programs are essential forms of federal snpport for engaged in a wide variety of offenses. Drug-dealing, In making this recommendation, we are mindful ~tate and local governments in their efforts to reduce burglary, robbery, larceny, extortion, and assault that ensuring an effective pUblic school system is violent crime. This recommendation underscores the are commonplace in many schools and on school primarily the responsibility of states nnd local COm­ need to continue training and technical support grounds. A 1976-77 national survey by the National munities. We are not suggesting that the Attorney efforts and, wherever possible, to expand them. Institnte of Education reported these findings: General attempt to assume responsibility for policing The risk of violence to teenage youngsters is the schools. Rathel', because violent crime and Increasing the number of slots available for state greater in school than elsewhere. Two-thirds of aU narcotics use in the schools is a serious national and local prosecutors in the Attorney Goner~l's . robberies and half of all assaults committed on problem, we believe the Attorney General's lead~r­ Advocacy Institute, for example, is one way l.n WhICh youths age 12-15 occurred at school. ship in pubHcizing the problem will encourage local the federal government could en~lance ~h~ crlme­ About 6,700 schools were seriously affected comm,unities and law enforcement personnel to deal combatting ability of local offiCIals. SImIlarly, by crime. directly and effectively with crime in the schools. we believe t.echnical services provided by the federal government are extremely valuable tools for state An estimated 282,000 students were physically and local law enforcement agencies. 'Ihe Attorney attacked while at school in a typical1-month period; General should make every effort to contjnu~ the nearly half the attacks resulted in Some injury. federal technical services provided by agenCIes at In a typicwl month an estimated 112,000 students the Department of Justice and should encourage had something taken from them by force, threat of other Cabinet officials to maintain an~ e~pan.d r~lated force, or by Use of a weapon. technical services to state and local crlmmal JustICe About 5,200 teachers were physically attacked eacll 11gencies. month.

120 Phase I Recommendatio71~ Ii PILase I Reoommendations 111 v," ~ It i I-' ! k'I* ------~ -----~ ------

Victims of violent crime have also frequently found Recommendation 13 that the defendant in their case has pled guilty to a lesser offense than the original charge, without Recommendation 14 Recommendation 15 The Attorney General should take a leadership role opportunity for participation by the victim or in ensuring that the victims of crime are accorded explanation as to why the action was taken. Such The Attorney General should require, as a The Attorney General should direct responsible proper status by the criminal justice system.1 dispositions can increase the victim's frustration matter of sentencing advocacy, that federal officials in appropriate branches of the Department and sense of alienation. 'When the defendant is sen­ prosecutors assure that all relevant information of Justice to give high priority to testing tenced, the crime's full impact on the victim has about the crime, the defendant, and, where systematically programs to reduce violent crime Commentary frequently not been presented to the judge by either appropriate, the victim, is brought to the court's and to inform state and local law enforcement and In the past several years, the realization has grown the probation ofiicer or the prosecutor, resulting in attention before sentencing. This will help the public about effective programs.1 that victims of violent crime all too frequently are an imbalance in the sentencing process. ensure that judges have a complete pic~ure . of the defendant's past oonduct before Imposmg twice victimized: first, by the perpetrator of the In recent years, many jurisdictions have instituted sentence.1 Commentary violent criminal act and, second, by a criminal justice necessary changes to alleviate these problems. Crisis system unresponsive to the particular needs of intervention services and victim/witness assistance The federal government has a special and unique violent crime victims. Although we recognize that units have been created to address many of the Commentary responsibility to test the efficacy of alternative violent crime is primarily a state and local responsi­ victim's needs. Prosecutors have adopted policies methods aimed at reducing violent crime. Further, bility, we believe the Attorney General has an to obtain the views of violent crime victims After a person has been convicted, the decision­ the Attorney General has a major leadership extremely important leadership role to play in before plea negotiations take place. Although such making process of sent€ncing begins. Judges must responsibility to inform the American public and advocating that victims of viOlent crime, whether at. information does not control the final decision of weigh diverse considerations pertaining to deter­ state ancllocal officials about these methods. The the federal, state, or local level, be afforded proper what plea to offer, the process !'lignifies that the rence, rehabilitation, incapacitation, and punish­ Department of Justice, through the National status in the criminal justice system. victims' rights are protected. Finally, many prose. ment. To arrive at a just sentence, the judge must Institute of Justice, the National Institute of Victims of violent crime Dl'e particularly vulnerable cutors' offices review information that is routinely have access to all available and pertinent informa­ Juvenile Justice and Delinquency Prevention, the because of the physical, emotional, and financial provided to judges prior to sentencing and supple­ tion about the defendant, his prior record, the National Institute of Corrections, the Federal stresses they are subject to as a result of their unique ment it where necessary, thus ensuring that the full facts of the case, and the full impact of the crime Bureau of Investigation, and other of its branches, status in the criminal justice system. Our concern in impact of the crime on the victim is presented. on the victim. While the probation officer may conducts basic and applied research related to all frequently supply all of the relevant information, this area extends to witnesses of criminal conduct ,Ve view these efforts as commendable but note that areas of the criminal justice system. Findings of the the federal prosecntor's responsibility as a sentenc­ as well, since they, too, often endure many of the their adoption has not been universal throughout various studies are frequently disseminated directly ing advocate (which is spelled out more fully in same hardships that victims do. Both victims and the country. To ensure that victims of and witnesses by the respecti ve agencies and through the National Part G (pp. 46-56) of the P1'in.ciple8 of Feder'al Criminal Justice Reference Service. witnesses playa crucial role in the criminal justice to violent crime are protected everywhere, we recom­ Pr08ecut'ion 2) requires that he or she ensure that system, and neither victims nor witnesses should have mend that the Attorney General playa leadership The critical need now is to ensure that the the judge has all the information necessary for a to suffer as a result of their contribution to the cause role in victim advocacy. Department's research and development activities of justice in America. just sentence that takes into account the interests of clearly reflect national priorities. In that regard, the victim and of the community. Prosecutors, by Note reduction of serious crime is of paramount concern. In the past, neglect of victims by the various virtue of their thorough know ledge of the case components of the criminal justice system has taken 1. ,Ve also address victims of crime in Phase II and access to the victim of the crime, witnesses, The federal government is in a unique position to many forms. First, there has been a lack of assistance Recommendations 62 through 64. criminal information records, prison records, gather the most current and relevant information on to the victim who has suffered emotional trauma as a and investiO'ative resources of the Federal Bureau problems identified by practitioners throughout the b • result of the violent crime. Victims and witnesses of InvestiO'ation and other law enforcement agenCles, country and create demonstration efforts that can b • • have frequently found that police officers, prosecu­ are uniquely situated to obtain and prOVIde tIllS be systematically evaluated. Local jurisdictions can tors, and court personnel have ignored or been essential information to the judge, and they should then benefit from the results and apply findings to insensitive to their needs. Many victims and actively and forcefully pursue this endeavor. meet their respective needs. witnesses know little about the court system and what will be expected of them. Matters that may affect Notes The research process must be one that has integrity them, such as the return of stolen property or the and ensures responsiveness to the problem of serious 1. ,Ve also address sentencing in Phase II a vailability of financial and social services and victim crime at the local leveL Reseurch should be a Recommendation 41. compensation, have not been explained. Timely notifi­ vehicle for educating the public and the criminal cation of court dates, continuances, and case 2. United States Department of Justice, July 1, justice community as to the nature of serious crime dispositions have been spotty. Wilen they have come 1980. and the means that can be used to combat it. to court, they have found transportation, parking facilities, child care services, and waiting areas unsatisfactory. Their attendance at court has occa­ sionally caused problems with employers, and witnesses who are not fluent in English have had problems in communicating with court persolllle1.

&13 Phase I Recommendations Phase I Recommendations &3 "",," .. , ------

Orime will not go down, any more than any na­ tional problem will be solved, if we merely throw money at it. It is imperative that we discover what works-lLnd what does not. Much has been learned by research efforts oyer the last dozen years. ",Ve now have a better understanding of the role (and limitations) of random police patrol, the strengths of foot as opposed to motorized patrol, the efficacy (or inefficacy) of various rehabilitation programs, and the characteristics of career criminals. For example, programs designed to speed Phase II the prosecution of career criminals grew directly out of basic research on who commits how many offenses, and these programs, in turn, were subjected Recommendations to objecth-e evaluations to discover which aspects of them were or were not contributing to enhanced public safety. But much more remains to be done. Though it has been almost 20 years since the current crime ::: wave began in the early 1960's, we still have only the most rudimentary knowledge of what actions by citizens, community organizations, police depart­ ments, and criminal justice agencies will best protect our lives and property. Thousands of experiments have been conducted on ways of guarding against disease; only a tiny handful have ever been con­ ducted on ways of guarding against crime. The Department of Justice should not only estab­ lish as a high priority the testing of yarious methods of reducing violent crime but should place this same emphasis on the dissemination of information resulting from such testing. Thus, it is our intent that technical assistance, training, and technology transfer efforts be used in conjunction with research to ensure the timely availability of findings to those who can translate such knowledge into action at the state and local level.

Note 1. ",Ve also address the testing and disseminating of information on programs to reduce violent crime in Phase II Recommendation 53.

~4 Phase I RecommendatioruJ , Phase I I Recommendations 26

III ----~--~------~-~~,-----

Chapter 1 r Federal Law and Its Enforcement

Serious crime is a national problem which should be attacked :forcefully by all levels o:f government. 'While ordinary street crime :falls within the prodnce of state and local governments, certain interstate crimes and criminal activity with national implications arc the responsibility of the federal gorernment. This simple statement reflects one of the basic principles on which our system of government was founded. In this chapter, we discllss ways in which the federal government could do more to combat serious crime that fulls or should :fall within its jurisdiction. ",Ve have examined existing :federal criminal laws to see i:f they need to be changed to render their enforcement more effeetive. ",Ve have looked at certain administrative laws which impact on federal law enforcement, namely the Freedom of Information Act and the Tax Reform Act of ] 976, and have examined the balance between the purposes of these Acts and their effects on criminal .law enforcement. ",Ve have studied areas in which federal jurisdiction over serious crime might be expanded without overstepping traditional (. federal-state boundaries. ",Ve have also looked at :federal law enforcement policies to see if changes need to be made to improve federal effectiveness. ",Ve have given attention to the present division of law eon:forcement responsibilities among se\'(~ral agencies and ha "e developed a proposal for a more logical gronping of law en:forcement functions. Finally, we have identified areas in which additional resources are needed in order to effectively carry out federal responsibilities. The following recommendations involve ways in which the federal government can take direct action to bear its share of the burden of the combined federal-state-local responsibility to combat serious crime.

,

Federal Law and Its Enforoement 27

.~,/.

~ I -

fl l.

sistent and inadequate sentences, are particularly The application of scarce federal resources must be pronounced in drug cases. Accordingly, the recom­ selective. The federal effort must be directed at those Narcotics mendations set forth in Chapter 2 of this rcport are parts of the drug problem that state and local Guns especially applicable to narcotics cases so that society authorities cannot address. That is why we focus will be better able to detect, app!'ehend, detain for so strongly on international and border control trial, convict, and meaningfully sentence drug efforts. Recommendation 17 Recommendation 16 traffickers. A final point is one·often made during our hearings­ The Attorn('y Genera.! should support the imple­ The Attorney General should support or pr~pose Bnt the narcotics problem is broader than the the need for effective coordination. This need is lll('ntation of a clear, coherent, and consistent legislation to require a mandatory sentence for the criminal justice system. Fnlly 90 percent of the recognized in aU areas of law enforcement but is enforcement policy with regard to narcotics and use of a firea.rm in the commission of a federal illegal drugs consumed in the United States come paramount in drug enforcement. Given the magni­ dangerous drugs, reflecting an unequivocal felony.1 from abroad. Of all the aspects of this nation's tude and worldwide scope of drug tra.ffic and the commitment to combatting international and violent crime problem, the international nature of multitude of federal, state, and local agencies with domestic drug trafiic and including- Recommendation 18 drug trafficking most uniquely requires th!} powers concurrent or overlapping jurisdiction, we recom­ a. A foreign policy to accomplish the interdiction andl'esonl'ces of the federal government. Plainly, mend that the Attorney General and the Adminis­ The Attorney General should support or propose and eradication of illicit chugs wherever state and local authorities are neither equipped nor tration assure that the implementation of anationa.l legislation to amend the Gun Control Act of 1968 cultivated, processed, 01' transported; including the empowered to conduct foreign relations or control drug enforcement strategy be effectively coordinated to strengthen its·ability to meet two of its major responsible use of herbicides domestically a.nd access to this country by land, sea, and ail'. at all levels of government. It is particularly purposes: allowing the trace of firearms used internationally. So the national drug enforcement strategy must also important that the federal authorities closely coordi­ during the commission of an offense and prohibit­ b. A border policy designed to effectively detect be reflected in our foreign policy. The Administra­ nate with state and local law enforcement agencies ing dangerous individuals from acqui.ring fire­ and intercept the illegal importation of narcotics, tion must assure thak United States diplomatic and that have the primary responsibility to investigate arms. Specifically, the Act should be amended to including tll(', use of military assistance. econom.ic assistance initiatives overseas are geared, drug-related violent crime. provide the following: c. A legislative program, consistent with recom­ wh('nevcr possible, toward the detection, interdiction~ a. That, on a prospecti.ve basis, individuals be Note mendations set forth elsewhere in this report, to and ('radication of illicit drugs before they complete required to report the theft or loss of a handgun reform the criminal justice process to enhance tIlt' (or ev('n commence) their course to this country. 1. "r e also address narcotics in Phase I to their 'local law enforcement agency. ability to prosecute drug-related cases.1 Authorities agr(le that crop destruction is the most Recommendation 2. b. That a waiting period be required for the (and perhaps only) effective way to significantly purchase of a handgun to allow for a mandatory disrupt drug traffic. This effort must not be crippled records check to ensure that the purchaser is not in Commentary by unnecessary regul!lJtions. To this end, we recom­ one of the categories of persons who are proscribed mend that the Administration assure that restrictions Throughout the course of our hearings, a recurrent by existing federal law from possessing a such as the present ban on the use of paraquat be handgun.1 theme has been the importance of more effectively removed unless based on an established and not combatting narcotics traffic. From \Vashington to specnlatiye health risk. In this regard, we note that Recommendation 19 Los Angeles, from Detroit to Miami, we have heard the Attorney General of Florida testified that 61,000 officials and scholars stress the connection between pounds of paraquat were used last year on his state's Title I of the Gun Control Act of 1968 prohibits drugs and violent crime. Certain drugs directly cause agricultural crops. the importation of certain categories of handguns. physical harm and irrational and violent behavior. However, the Act does not prohibit the Other drugs cause addiction "'hich, according to Nor can the national enforcement policy ignore the importation of unassembled parts of these guns, evidence presented to us, is directly related to a significant domestic marijuana crop. Failure to treat thereby permitting the circumvention of the staggering amount of crime, much of it yiolent. this phenomenon with the same seriousness (and the intended purpose of this title of the Act. It is Finally, drug trafficking itself, as demonstrated by same mc>thods) as we do foreign crops wou1d betray therefore recommended that the Act be amended to an ambiyalC>l1ce about fighting drugs and would so-called "cocaine cowboys," is often an extremely prohibit the importation of unassembeld parts of seriously weaken our efforts to persuade foreign violent criminal activity. handguns which would be prohibited if assembled.1 governments to suppress drug cultivation. vVe recommend a clear and coherent national enforcement policy with regard to narcotics and The national enforcement policy must also find Recommendation 20 consistc>nt application at onr borders. The use of dangerous drugs. This policy must be characterized The Attorney General should support or propose otherwise available military resources to detect and, by a commitment to reducing the supply of-and legislation to authorize the Bureau of Alcohol, if necessary, interdict drug smugglers must be demand for-illegal drugs, and it must be executed Tobacco and Firearms to classify semi-automatic authorized. To the extent that the Posse Comitatus consistently. weapons that are easi'ly converted into fully Act prevents the military from providing such automatic weapons as Title II weapons under the The seriousness of the drug problem and of the assistance, the Act shou1d be amended. Inspection Gun Control Act of 1968.1 national policy required to combat it must be programs must be thorough, even if they require that reflected in the criminal justice system. Many general citizens returning to this country be slightly incon­ problems, such as insufficient bail, the suppression of venienced by delays. truthful evidence, and the imposition of incon-

I";': ,~~ .....~ ~8 Federal Law and Its Enforoement r Federal La'l.v and Its Enforoement ~9 I I ·~--~""...... ,.--~ ------

in several ways to achhwe their intended purposes Recommendation 21 Another purpose of the Act and of the Omnibus purchase a hallllgun at their local police departments, due to either a lack of adequate enforcement mecha­ The Attorney General should direct the United Crime Control and Safe Streets Act, designed to where their eligibility is checked. Such a require­ nisms or unintended loopholes in C'xisting law. States Attorneys to develop ngreen1('nts with reduce violent crime, is directed at preventing the ment may also provide a "cooling off" period for state and local prosecutors for increased federal Despite the problems inherent in examining the issue possession of handguns by proscribed groups of individuals ..."ho might otherwise purchase and prosecutions of convicted felons apprehended in of guns, it is possible to set forth sensible criteria for people. However, it has not had its desired efl'e.ct. use a handgun in the heat of passion. Under those Acts certain categories of individuals t.he possession of a firearm. This proposal would the recommendations we are makinp: in this area. As of 1979, 12 states required waiting periods. TIl(' enable federal prosecutions to be brought against are ineligibl.e to receive firearms that have been First, they should be politically feasible. Second, usual procedure is for a customer to complete an felons apprehended in the possession of a firearm shipped in interstate commerce. These include: they should balance the importance of presening application for purchase at the dealer's place of under the 1968 Gun Control Act and tIlp Dangerons legitimate reasons for owning guns and the costs Fugitives from justice business; the dealer forwarchl the application to the Special Offender provisions of the Organized associated with that ownership. Finally, and most police department, which investigates the informa­ Crime Control Act of 1970. Fedpral penalties importantly. it should be possible to make at least Persons under federal or state felony indictment Persons convicted of a federal or statAl felony tion contained in the application during the waiting under these statutes often are greater than state a prima facie case for the effectiveness of these period (the longest such waiting period is 15 days, ppnalties applicable to firearms possession. Because recommendations in reducing violent crime. Persons ineligible by state or local law to possess required by California and Tennessee); the police these cases are matters m-er which state and local a firearm department either approves or c1i!'!approves the law enforcement have primary jurisdiction, ,Ye believe that indh-idnals must be deterred from Minors, under 18 years of age for rifles and application and notifies the dealer; and if the appli­ they should be brought in close coordination with using handguns in the commission of a crime. ,Ve shotguns, and under 21 years of age for handguns cation is approved, the dealel' then contacts the state and local prosecutors. The appropriate believe that the cost to an individual of committing purchaser, who may then come anll pick up his federal role is to initiate prosecutions in order a crime with a handgun should be made greater than Adjudicated mental defectives or persons firearm. ,Yisconsin has a waiting period between to bring federal prosecutorial resources and more the benefit. This cost, in part, should be manifested committed to a mental institution purchase and deli\1ery of handguns but does not severe penalties to bear on the most serious in the sentence that is meted out to those convicted Unlawful users of or addicts to any depressant, require an application to pur:)hase. This waiting offenders in a locality who are apprehended with of such acts. Current federal law prm'ides for an stimulant, or narcotic drug i period is designed as a· cooling off period . firearms in their possession.1 additional 1 to 10 year sentence. for the use of a •1, Felons ! firearm in the commission of a federal felony. A 2 to Eleven states require some form of permit for retail 10 year term is provided for sC'cond and subsequent ! Persons dishonorably discharged from the United Recommendation 22 States Armed Forces purchase of handguns. Usually, the prospective offenses (18 U.S.C. 924(c) (1970)). Because these \ purchaser applies for a permit at his local police The Attorney General should direct the National sentences can be suspended or made probationary • Mental incompetents Institute of .Tustice to establish, as a high department by filling out a form which requests and, in addition, all offenders who are sentenced to \- Former United States citizens pertinent information about the prospective priority. rpsearch and denlopment of prison are currently eligible for parole, the cost of I methods of detecting and apprehending persons \ Illegal aliens. purchaser. Thp police department then conducts an violation is neither certain nor severe enough. im-estigation to Yerify the information. There is an unlawfully carrying guns.1 There is, at present, no effective method to verify ,Ye recommend legislation to require a mandatory I "effectiye waiting period" which is the time required a purchaser'S eligibility. The dealer must know to process and approve or deny an application. This sentence for those convicted of the use of a firearm or have reason to believe that the pUl'chaser is 'j varies with workload although some states set a Commentary in the commission of a federal felony. This proposal. f ineligible to receive a firearm in order to make 1 statutory maximum (usually 30 days), after which supported as it is by the public and the police,7 would I In the rnited States in 1978, firearms were nsed in a trn.nsaetion unlawful. However, this is very the application is approved or denied. A minimum prodde an effecti,'e deterrent to crimes of this sort. I difficult to prove. A person purchasing a firearm 307,000 offenses of murder. robbery, and aggl'llYatecl waiting period between purchase and deliyery may To be effective, the mandatory sentence should be from a federally licensed dealer is required to sign a assault rpported to the police; 2 they were present r also be defined.s severe enough to have the necessary deterrent forcC'. form on which he affirms by sworn statement that in about one-tenth of all violent ,-ictimizations Further, the power to impose this sentence should ! 3 he is not proscribed from purchasing a firearm. This ,Ve recommend that a waiting period be reqnired for occurring in 1980. In 1978, 77.8 percent of firearm not be vitiated by any opportunities on the part of i murders involved It handgun.4 Every year signature relieves the dealer from any liability the purchase of a handgun to allow for a mandatory prosecutors to circumvent it throup:h the use of plea II I for iJ1ep:al transfer, as long as he, requests and records check to ensnre that the purchaser is not approximately 10.000 Americans are mnrdered bat'gaining. charge reduction, or other methods. by criminals using handguns.5 Crimes committed ,f C'xamines a form of purchaser identification, other proscribed by the Gun Control Act of 1968 or Title by indh-iduals using handguns represent a serious Several purposes of the pxisting federal gun laws I than a social security carel, that "erifies the pur­ VII of the 1968 Omnibus Cl'ime Control and Safe problem of violence in our nation. Profferecl have not been fulfilled effectively. The 1968 Gun chaser's name, age, and place of residence. Streets Act from owning a handgun. In order for this solutions to this problem are myriad, ranging from Control Act banned, with some exceptions, the Since drug addicts, felons, mental defectives, and waiting period to be effective there should be adequate I' 9 the practical to the impossible. Positions taken are importation of handp:uns (includinp: so-called i record check methods aVllilable. By making this 1 the like are not the best risk for "the honor often highly emotionally charged. Additionally, "Satlll'day Xip:ht Specials") into the rnited States system," a waiting period between the time of signing recommendation, we are endorsinp: the concept of !t there is no lack of social science data-of varying (18 U.S.C. 925 (<1) ). Howewr, a loophole allowed the I the presently required form and delivery of the ·waiting lwdod without. specifying the aetnal mecha­ quality-to support diametrically opposed views. importation of handgun parts which could then be l : handp:un to the plll'chasC'l' to Yerify the plll'chnser's nism that should bl' employed. That task should be assembled into handguns and sold. ,Ve believe that , eligibility is sPllsible and necessary to effectuate Jeft to those who frame thC'; 1C'gislation requiring such However, the plethora of contradictory state gun a waiting period. "Te do not believe that this proposal laws has made their enforcement ineffective,G the 1968 Gun Control Act is still worthy of support I the purposes of the Acts. Dealers should be required and that its intent should be carried out by closing ! broadens the limitations on handgun ownership indicating the need for a federal strategy that would j to contact law enforrement authorities and verify this loophole. Therefore, we recommend that the Act a purchaser's elip:ibility, or prospective purchasers contained in existing la w; it simply enables the intent provide consistency and uniformity across state ,f of the law to be fulfilled-an intent that has wide boundaries. In addition, federal gun laws have failed be amended to prohibit the importation of unas­ j should be required to apply for a permit to sembled parts of handguns which would be pro­ !, public support.l0 Handp:uns should be kept out of the hibited if assembled. hands of the wrong people.

30 Federal Law and Its Enforcement Federal La'w and Its Enforcement 31

7 I

. ~ .... ~, . tiL.,.,.. _ , .../ .. ":'"_ ~---"""""""'''''''~i'------,....------

Not all handguns that are used in crimes arrive in be approved by the Secretary of the Treasury or his In addition to these substantive proposals, we the hands of perpetrators directly from a firearms delegate with an accompanying federal transfer tax 10. A 1978 survey reported that 88 percent of the dealer. Many of these guns have been resold, given paid in connection with such sales. Some manufac­ believe that the federal government should conduct respondents favored a waiting period "to allow for a away, lost, or stolen. One study concludeu that stolen hIrers are producing readily available semi-automatic research on methods to detect and apprehend criminal records check." (See Decision Making guns constitute a significant proportion of guns used weapons (these are not Title II weapons) which can persons unlawfully carrying guns. This could be Information, Inc., "Attitude of the American in the commission of criminal offenses in ~ ew York easily be cOllYerted to fully automatic wea pons by accomplished by having the National Institute of electorate toward gun control 1978" (Santa Ana, City.11 It is estimated that between 65,000 and 225,000 simple tool work or the addition of readily available Justice assign high priority to research into the California, 1978).) handguns are stolen each year in t.he Unih~d States.12 parts. Over an 18-month period, 20 percent of development of such means of detection and 11. Steven Brill, "Firearm abuse: A research and In investigating crimes committed using handguns, machine guns seized or purchased (slightly less apprehension. There is a need for effective methods policy report" (,Vashington: Police Foundation, the ability to trace these firearms hy law enforcement t.han 1.300) by the ATF had been converted in this of this sort. The ability of law enforcement officials 1977), pp. 106-107. to detect individuals who are carrying guns may officials is extremely important. The Gun Control wayY To deter t.hese dangerous cOllYersions, ATF 12. Mark H. Moore, "Keeping handguns from provide an impOltant disincentive for the unlawful Act of 1968 was intended, in part, to estahliRh this should be authorized to declare such guns Title II criminal offenders," The Annals of the American carrying of such weapons. In addition, it could ability by requiring that manufacturers and dealers weapons, thus making them subject to Title II Academy of P oUtical and Social S cienae, May 1981, maintain records of firearms manufactured, trans­ regulation. provide an important means of protection for police p.100. ferred, and sold. ,Vhile this provides a ready ability officers by enabling them to tell whether a suspect Federal laws prohibit convictl'd felons, among other is armed. 13. Department of the Treasury, Bureau of Alcohol, to trace handguns to the initial pnrchaser. it does Tobacco and Firearms, Fi1'ea1'ms case summary nothing to alert law enforcement officials to the fact tytws of indh-iduals, from acquiring firearms. They also contain increased lwnaltil's for persons using a (Washington: U.S. Government Printing Office, that the handguns have been lost or stolen and, thus, firearlll in the course of a variety of federal crimes. Notes 1981) . are prime candidates for instruments of criminal In some states, these federal firearm laW's are signif­ 1. ,Ve also address guns in Phase I Recommenda­ activity. A number of proposals have been made to icantly more severe than comparable state statutes. tion 5. ameliorate this situation and improve the national In addition. in many federal districts the federal firearms trace capability. 2. Data compiled from U.S. Department of court dockets are not as crowded as county and city Justice, Federal Bureau of Investigation, Orime in 'Ve recommend that indidduals be required to report cOllrt calendars. the United States 1978 CWashington: U.S. to their local la w enforcement officials the loss or For the federal government to contribute more Government Printing Office, 1979). theft of any handgun. The police would then enter effecth-ely to the reduction of violent crime, U.S. 3. Unpublished data supplied by the Bureau of this information into the National Crime Informa­ Attorneys should bring more prosecutions under Justice Statistics from the National Crime Survey. tion Center (NCIC) (this information is routinely these federal statutes. This will enable the more entered into the N"CIC now by local police depart­ 4_ Data compiled from U.S. Department of Justice, ments 'I.o1wn it is reported to them). severe federal sanctions to be applied to the violent Federal Bureau of Investigation, Orime in the offenders who present a great. threat to the commu­ United States 1918. We do not believe it is necessary for individuals to nity, but who face more limited state sanctions. To 5. U.S. Department of Justice, Federal Bureau of report the resale or gift of a handgun to another accomplish this goal, the U.S. Attorneys should Investigation, Orime in the United States 1978, p. 12. individual, since officials of the BurE!au of Alcohol, develop a working agreement with state and local Tobacco and Firearms (ATF) have testified that prosecutors to establish a mechanism for bringing to 6. J. Wright and P. H. Rossi, Weapons and violent this type of transaction can be easily traced under the attention of the U.S. Attorneys those persons crime: Executive summary (,Vashington: U.S. existing law. Nor do we believe it necessary to have apprehended by state and local authorities in posses­ Department of Justice, 1981), p. 27. any kind of national registry of handguns to ,vhich sion of firearms in violation of federal laws_ ,Vhere 7. Cambridge Reports, Inc., An analysis of public dealers would report sales and resales of handguns. the firearm involved was used in the course of a seri­ attitudes toward handgun control, appendix a-the Such a registry would be too cumberSOlllP, gi,'en the ous felony, the state laws for the prineipal offl'nse guestionnaire (Cambridge, Mass.: Cambridg3 2 million handguns sold by dealers each year and (e.g., homicide, robbery, rape, etc.) may be entirely Reports, Inc., 1978). D. Hardy, "Firearm ownership the many additional transactions between private adequate. However, where a previously convicted and regulation-tackling an old problem with citizens. In addition, expert testimony before us felon has committed a relatively minor offense, or renewed vigor," William and 1Jf ary Law Review, indicates that the records currently kept by manu­ has committed no provable offense other than 20,n.2, 1978,pp. 235-290. facturers and dealers, if enhanced by reporting of acquisition of a firearm, the U.S. Attorney should 8. Edward D. Jones, III and Marta Wilson Ray, thefts and losses to the NCIC, would provide an review the case for possible federal prosecution. By adequate trace capability. Handgun controlr-strategies, enforcement, and working together with state and local prosecutors effectiveness (Unpublished study, Washington: U.S. Another problem that we wish to address is the on these firearms violations, the U.S. Attorneys Department of Justice, 1980), pp.18-21. will be able to bring the federal firearms penalties ease of conversion of semi-automatic guns into more 9. See Philip J. Cook and James Blose, "State to bear on those violent offenders who persist in lethal and more strictly regulated fully automatic programs for screening handgun buyers," The guns. Title II of the 1968 Gun Control Act (26 violating the law, as evidenced by unlawful firearms possession. Annals of the Am,erican Academy of Political and U.S.C., chapter 53) prohibits the manufacture, Social Science, May 1981, pp. 80-91, for a discussion possession, and transfer of weapons that are contra­ of current screening problems encountered by the band in nature. These include machine guns and other states. fully automatic weapons. The Act requires that all such weapons be registered and subsequent transfers

32 Federal Law and Its Enforcement , Federal Law and Its Enforcement 33 . .. '~ ..... -­ R"IF

maiming, agg1'll\'ated and simple assau.Jt" kJidnap­ Crimes against federal officials ping. alHlmenacing ancl terrorizing, Each section of the Calle defining one of these offenses also defines An additional problem of potential seriousness is the jurisdictional basis for the offense. This includes the lack of federal jurisdiction over assaults on the following: other individuals that are committed in the course Al~son of attacks on the President or Vice President. If Recommendation 23 (e) JURISDICTIOX-There is federal jurisdic­ the recent shooting of the District of Columbia tion oyer an offense described in this sedion if- police officer in the course of the assassination The Attorney General should support or propose (2) the offense is committed against- attempt on President Reagan had occurred in Recommendation 25 leo'islation to make a federal of1'ense any murder, (A) a United States Official; any jurisdiction other than the District of Colum­ kiclnapping, or assault of a Uni~pd States o,fficial or The Attorney General should conduct a study of bia~1 both federal and state or local authorities of a federal public sel'\'ant who IS engagl'd III tIl('. (B) a federal public sen'ant who is engaged the feasibility of transferring the anti-arson would have been investigating and prosecuting performance of official duties. The term in the perforlllance of his ollicial ~luties and who training and research functions of the United what in essence is the same case. This could result "Lnited States oflicial" shouhl be defined to mean is a jlHlge. a juror, a Inw enforcement officer, an States Fire Administration to the Bureau of in :iurisdictional and political disputes; conflicts a member of ConO'ress, a member of Congrr.ss- elllployee of an oflicial detention facility, an Alcohol, Tobacco and Firearms. 'b • in investigation and seizing, testing, and main­ elect, a federal judge, a member of the EXC'ClltIvO employee of the "(Tnitec1 States Pl'obation System, taining evidence; pretrial publicity problems; Branch \\'ho is the head of a department, or tll(l~(I 01' a per:-ion llesignatecl for coyerage uncler this Recommendation 26 much greater pretrial discovery than is afforded already co\'ered by the law including the President, spction in rl'gulations issued by the Attorney uncler the federal rules ; multiple trials; different Arson should be the subject of a special statistical the Pr~sident-elect the Vice President, and the General; ... , , evidentiary rulings; and ultimately greatly weak­ study on a regular basis by an appropriate agency Vice President-elect. The term "federal pubhc The term "lTnitecl Stntes official" is defined to IIlPan ened cases. We support extension of federal juris­ as determined by the Attorney General. servant" should be defined as any person n, federal public servant who is the Presidpnt, the dietion to be accomplished by the passage of designated for coverage in regulations is~ued by President-elect, the Vice President, the Vice legislation that would make it a federal offense Recommendation 27 the Attorney General and those alreally covered Pl'esident-elect, a Member of Congress, a member of to assault anyone during the commission of an To eliminate problems that often emerge when by law including a federa11aw enforcement officer. Congl'ess-elect, a .Justice of the Supreme Court, or a attack on the President or Vice President. member of the }United States Senate, Oriminal Oode Ref01"ln Act commerce is involved should be amended to legislation to make a federal offense any mmcler, currently exists under 18 U.S.C. Riil and1t;">!' To of 1979, Rep01't of tl~e 00711lJnittee on the Ju,dicia?'Y, such existing co\'erage haye been addec1 Supreme encompass arson started by fire as well as by kidnapping, or assault on a state or localla w United States Senate, to AccO'lnpany S. 17~~, explosion.1 enforcement officer or on a prh'ate citizen com­ Court .Justices and members of the Cabinet. (Washington: U.S. Government Printing Office, mitted in the course of 1)'l1lUl'der, kidnapping, or ·While the proposec1 Federal Criminal Coc1e includes 1980), pp. 536-537. assault on the President or Vice President. Supreme COlll't Justicl's within its provisions, we Commentary belie\'e that all federal judges should be covered. In 1979, almost 1,000 people died and 10,000 were Commentary Subparagraph (B) is a moderate extension of the injured as a result of arson. Arson has increased present scope of co\'erage. To provide a workable approxima~ely 400 percent over the past decade and The recent assassination attempt on the President. mechanism fol' extending fpcleral pJ'Otection against accounts fOl\ roughly 25 percent of all fires. 2 For ' and the shooting of his Press Secretary and a District violent offenses to miscellaneous additional classes every 100 fires classified as suspicious or incendiary, of Columbia police officer exposed a need for of pe.rsons whose occupational responsibilities may there are only 9 arres!:s, 2 convictions, and 0.7 expanded federal jurisdiction o\'er cl'iminal acts of place them in positions of danger-and for keeping incarcerations.8 this type. Attacks upon Cabinet ml'l11bers an<1 such co\'eragp CIIl'l'ent with changing lH'eds-it has Arsonists are investigated and prosecuted under a Presidential and Vice-Presidential aides are not been proposed that the Attorney General may number of fedel'al statutes by federal agencies currently defined as federal of1'enses. Because senior designatn other classes of persons for such coverage including the Federal Bureau of Investigation aides and Cabinet members have vital roles in the in 1'egulations. It should he noted that all categories (FBI), the Bureau of Alcohol, Tobacco and pffC'cth'e functioning of the Executh'e Branch. a of pel'sons included in Subparagrnph (B) are :Firearms (ATF) , the Internal Revenue Service number of proposals ha \'e bppn made to extend federa 1 co\'cred only if the offense OCClll'S while they are jurisdiction to include attacks against them, Similar (IRS), and the United States Postal Service. In enO'ao'ed in'the l)erformance of their oflicial duties. l reasoning calls for federal jurisdiction to bE' extended b b . addition, training, resea'rch, coordination, and ~ to include attacks on federal judges. funding of state 'and local programs are carried out by a number of the federal agencies, including the The pl'oposedl'evision of the Fpderal Criminal Code United States Fire Administration (USFA). provides a useful model upon which we base our recommendation to expand'federal jurisdiction in this area. It contains provisions to extend federal jurisdiction over violent crimes against federal officials. These include murder, manslaughter,

84 Federal Law and Its Enforcement

Federal Law and Its Enforcement 86 353-069 0 - 81 - 4

[I I .' ---_..._-.~.i· -- ~ --- Ii

'Ihe USFA is part of the Federal Emergency these activities should be expanded. This study Notes Managemen t Administration (FEUA). In addition should be conducted in conjunction with the study to a fire academy and a dat.a center, it contains 1. ,Yo also addresR tho organizn tion of arson of the feasibility of transferring ATF's law en­ Tax cases an Office of Planning and Education that is, in forcement functions to the Department of Jus/"ice­ enforcement activities in Phase II Recommendation part concerned with arson. Its activities include a recommendation we discuss in a later section of this 33. the ~peration of a training academy in Emmitsburg, chapter. 2. Statement by Senator J olm Glenn, Oongressional "Maryland, for federal, state, and local personnel Record, January 2'7, 1981, p. 5'702. Recommendation 28 who are trained in the management of fire depart­ ,Ye also recommend that the offense of arson become 3. Arson: Report to tILe Oongress OVashington: ments and fire scene inyestigations. Approximately a subject of regular statistical study by the FBI, or United States Fire Administration, August 19'79). . The Attorney General should support or propose 800 people are trained at the academy each year. the Bureau of ,rustice Statistics, or another appropri­ legislation to amend the Tax Reform Act to bal­ The USFA also runs task force training programs ate agency as determined by the Attorney General. ance legitimate law enforcement needs with per­ in various cities. Arson task forces are comprised Currently, arson is classified as a Part I crime on a sonal privacy interests by pel'mitting the limited of police, fire department personnel, aUli prosecutors. tempora;y basis only as part of annual amendments use of Internal Revenue Service records and in­ In addition, insurance, housing, public information, to the Justice Department authorizations. There are formation by other law enforcement agencies. and other representatives may be part of the task difficulties in making arson a permanent Part I index force. crime under the rniform Crime Reports (UCR). Recommendation 29 Since approximately only 60 percent. of the nation's The USF A also funds projects in seven cities that police departments collect arson statistics, efforts The Internal Revenue Service should be afforded investigate arson patterns and study methods of wouldlun'e to be made to factor into the lICR the adequate resou:ces to investigate tax offenses and prediction. In addition, it runs a joint program statistics receh'ed directly from fire agencic:'l in financial dealings of drug traffickers and other with ATF whereby the USFA supplies a local fire localities where police agencies do not gnf:hel' such illegal business activities that are associated with investigator as part of a national response team data. In addition, arson often does not becolll£' known violent crime. to aid in investigating major arsons. The US FA to law enforcement agencies for long periods of Recommendation 30 works with the insurance industry to improve time. While the FBI believes that arson statistics underwriting practices and claims defense prac­ can have great utility, it believes that. a spl'c!ial stndy The Attorney General should review and restruc­ tices and with the American Bar Association on of arson, much in the manner of special studies now ture if necessary the "Dual Prosecution Policy" us arson case law and defense procedures. It also conducted of police killings and bombing-:;;, "'ould it relates to prosecution of tax offenders who have runs a juvenile fire setter counseling program, be more useful. It is estimated that the startup costs commit,ted other offenses prosecuted by the works with the FBI in profiling arsonists, and for such a study would be about $500,000. Department of Justice. researches ways to predict revenge arson and prosecute the arsonist. The nSFA provides grants We also support a proposal which would minimally and funds the National Bureau of Standards to expand federal jurisdiction over arson. It is designed Commentary cCJIlduct research in arson prevention and investi­ to clear up serious problems tha t often emerge gation. Funds for the task force progran; were when fires are started by gasoline. Currently, the Since passage of the Tax Reform Act of 19'76, the received from the Law Enforcement AssIst.ance federal gO\'ernment has jurisdiction over individuals relationship of the Internal Revenue Seryice (IRS) Administration (LEAA). "With the cutoff of who maliciously damage or destroy or attempt to to other law enforcement agencies has changed LEAA, the task force and other programs will be damage or destroy, " ... by means of an explosive," sharply. The Tax Reform Act WaS designed, in part, terminated. property used in or activities affecting interstate to protect private citizens and to prevent frivolous or or foreign commerce. (18 U.S.C. 844(i)). Gasoline, politically motivated criminal investigations of The US FA's anti-arson training and research under proper conditions, is generally accepted by pri vate citizens through the use of their tax returns activities are closely related to the arson law enforce­ the courts as an explosive as defined by statute. or tax-related information. The Tax Reform Act ment responsibilities of the ATF. As noted in a However, it is often difficult to demonstrate that placed restrictions on what information federal law discussion of the reorganization of federal law enforcement agencies could request from the IRS. It enforcement aaencies elsewhere in this chapter, at the time an arson occurred gasoline was in the proper state to be classified as an explosive. Federal also tightened and made more cumbersome the havina relatecl law enforcement responsibilities procedures by which agencies could obtain such lodaed in separate agencies can result too often in inyestigntors must often expend a great am?unt of time and effort to demonstrate that gasolme information. As a result, the IRS participation ill inefficient operations. Because of this we believe the law enforcement agencies' efforts to investigate, Attorney General, along with the Secretary of the llsed in an arson was in this state; a number of cases are terminated because this cannot be estab­ prosecute, or otherwise limit the activities of orga­ Treasury and the Director of the Federal Emergency nized criminals and drug traffickers was reduced. For Manage;nent Administration should examine the lished. If the statnte Wl'l'e to read, "'Yhoeyer mali­ ciously damages or destroys, or attempts to damage instance, the number of Organized Crime Strike feasibility of transferring the anti-arson training Force indictments that originated from IHS­ and research functions of the nSFA to the ATF. In or de.c;troy, by means of explosion 01' fire ..." then investigatorR would not need to prove the gasoline developed tax information dropped from 2'7 in 19'78 addition, they should examine the degree to whi.ch was in an explosive state. to 16 in 1980.

36 Federal Law and Its Enforcement Federal Law and Its Enforcement 37 The Criminal Investigation Division (CID) is the • The IRS would be permitted, at its discretion, section of the IRS that, in addition to innstigating to report to the appropriate fedeml la w enforcement alleged criminal violations of the Internal Revenue agency any circumstances involdng an imminent Efforts to investigate and prosecute individ­ Code and offenses relating to tux cyasion und willful danger of flight from prosecution or substantial "r e recognize, of course, that it is preferable to uals by the Department or Justice for include all related counts in a single indictment and failure to file returns, investigates individuals threat to life or property. narcotic and organized crime offenses and by engaged in illegal business activities and organized prosecution. 'Where new evidence of a serious tax • The IRS would not be precluded 01' pren~nted the IRS for violations of the tax laws are frequently crime. It is comprised of 1,300 financial criminal crime is received after a conviction for a related from assisting 01' working jointly ,Yith otllt'r federal hampered by application of the Department of investigators whose skills would be of benefit to other offense, ho"ever, the dual prosecution policy shoulll law enforcement agencies in the investigation of Justice's dual prosecution policy. The United federal law enforcement activities. Yet the Tax not necessarily prevent a further prosecution. non-tax crimes that may in\'o1\-e violations of States Attorneys Manual (Title 9, Section 2.142) r;}form Act has created a chasm between the CID federal tax laws. does not allow for prosecution of related offenses and other federal law enforcement agencies. • State and local law enfol'cement authorities unless the offenses are enumerated in the same The Tax Reform Act has led to a number of specific would be entitled, but limited, to information indictment. problems. Inmost instances, the IRS cannot addse I already obtained by federal law enforcenlt'nt I This "dual prosecution" or "Petite policy" bars the Justice Department on which cases it ,is working. officials (other than IRS) dlll'illg a f('deral non-tax multiple prosecutions (either two or more federal This leads to a lack of cooperation and duplication of criminal inycstigation, upon entry of a court prosecutions 01' a federal prosecution following a effort. It is very difficult for investigators from other order authorizing such disclosure. state prosecution) for two or more offenses arising agencies to obtain financial information from the • Foreign gon~rnl1lellts pmsuant to mutual from the same pattern of activity. For example, in IRS to assist in developing prosecutions against assistance treaties and upon entry of a court the case of Petite v. United States, 361 U.S. 529 major criminals. It is also extremely difficult for the order would be entitled to information in non- (1960), a federal prosecution for the bribery of IRS to give other federal agencies e"idence concern­ tax criminal matters, such as narcotics trafficking. jurors was undertaken after the defendant had ing non-tax criminal violations that was obtained This proYision would make it possible for federal plead nolo contendere in another district to a charge in the normal course of its investigations. Finally, la" enforcement officials to obtain reciprocal of conspiracy to bribe the same jurors. On appeal the requirements or the Tax Reform Act often cause disclosure of foreign tax information. Such treaties, to the Supreme Court, the Department of Justice sen're time delays in those investigations in which of course~ must be ratified by the Senate. confessed errol' and moved to vacate the second prosecutors are permitted to work with the IRS. conviction, citing its policy against dual prosecution. • Federal agencies, rather than indiYidual This policy has been expanded since that time. The procedure by which federal prosecutors may federal employees, must be the defendants in civil seek disclosure. pursuant to court order, of tax return suits alleging unauthorized disclosures of tax Alt.hough the basic princir1e underlying the Petite informl.\tion needed in connection with a non-tax information. policy is sound and promo(.ps fairness to defendants criminal investigation or prosecution is cumbersome • Court order procedures for obtaining tax as well as economical use of pl'osecutorial and and establishes unrealistic requirements. For ('xam­ return information would be streamlined and judicial resources, we believe that this policy may be pIe. a U.S. Attorney may not apply directly to a made consistent with present judicial practice. too broadly stated in existing Department of Justice court for an order providing for disclosure of tax guidelines, particularly as it relates to tax cases. If, return information; rather, applications for such Individuals who are engaged in drug trafficking for example, an individual has been convicted of a court orders must first be approved by the D(',part­ and ol'ganized cl'ime regularly violate the tax laws relatively minor offense (perhaps failure to file a ll1ent of Justice. l\foreow>r, n.s. magistrates, who in addition to laws against drug trafficking and federal income tax return) , such a con viction bars are empowered to issue search warrants, may not organized crime. They either file no income tax a second prosecution if, following the original enter court orders for tax return information; such return at all 01' file a fraudulent return. 'While conviction, evidence is obtained indicating that the orders must be approved by U.S. district court it is frequently difficult to build a prosecutable individual was engaged in a more serious offense 01' judges. case against such individuals for their activities one with a more severe penalty (perhaps participa­ in drug trafficking and organized crime, a well tion in a continuing criminal enterprise). This The tax disclosure amendments outlined below would organized tax in ;-estigation conducted by IRS has situation arises frequently in connection with orO'a- balance legitimate law enforcement needs against • • b a much better likelihood of successful prosecution lllzed CrIme and drug trafficking cases, where cases taxpayer pl'iYacy interests: and conviction. This has a twofold benefit: first, it developed by the FBI and the DEA are referred • Justice Department officials in the field, heads strengthens enforcement of the tax laws and, second, to the Department for prosecution before criminal of agencies, and Inspectors General would be it helps to put drug traffickers and persons engaged tax investigations of the same individuals are authorized to request non-return information from in organized crime out of business. The end result developed and referred by the IRS. vYe recommend, theIRS. is extremely salutary. therefore, that the Attorney General review the dual prosecution guidelines to determine whether • The IRS would be mandated to report evidence To accomplish this goal on a meaningful level, of non-tax crimes to law enforcement authorities. revisions may be appropriate to ensure that the the IRS needs increased inycstigath-e resources. guidelines do not bar a subsequent prosecution of • Tax information would he admissible in judicial Since drug trafficking and organized crime have a major criminals. and administrative proceedings in the same manner great influence on violent crime, "e recommend a.s other evidence, rather than pursuant to special that those additional necessary resources be rules. provided.

38 Fede'l'al Law and Its Enforoernent

Federal La'/./) and Its Enfo'l'oement 39

'I I ~--~~.....-"~ .. -"- ~ ------~ -"-- -

Today, 15 years later, it is clear that the proportion In support of their con~lusions that the FOIA now intended purposes of the Act, It is difficult to of requests under the FOIA related to performing needs modification, witnesses before the Task justify expenditures of federal funds for requests The Freedom of Information Act this vital function of informing the public may be Force and the Eastland hearings offered the fol­ from those seeking information that is legitimn,tely very small. In recent congressional testimony,l the lowing examples of how it has affected the confidential or which they intend to use to evade Department of Justice reported that only 7 percent ability of federal, state, and local government.s criminal investigation or retaliate against informers. to combat crime: Recommendation 31 of the 30,000 FOIA requests received annually • Government resources are used to fill requests come from the media or other researchers. :Many • De.creases in the number of informants have outside the original intent of the Act, which was The Attomey General should order a compre­ requests come from persons who are obviously been reported; it is believed by many that potential to ensure an informed electorate. These requests come hensive review of all legislation, guidelines, and seeking information for improper personal advan­ informants do not come forward out of fear of not only from those seeking investigative infornw.­ regulations that may serve to impede the effective tage, including cOlwicted offenders, organized crime disclosure through FOrA requests from persons they tion for illicit purposes, but also from foreign na­ performance of federalla w enforcement and had helped convict. Even though their informant figures, drug traffickers, and persons in litigation tionals who may be intelligence agents and businesses prosecutorial activities and take whatever identities are exempt from disclosure, informants with the United States who are attempting to use that are seeking trade secrets. 'While trade secrets appropriate action is necessary within the fea.r that they will become known through the FOIA to circumvent the rules of discovery and active investigative information are exempt constitutional framework. a.gency error or release of ancillary information on contained in the rules of criminal or civil proce­ from disclosure, resources must nevertheless be dm·e. Because requesters do not have to give a details of the informant's role in the investigation. Recomrne.ndation 32 spent to locate relevant record;; and review them reason for the request, it is unknown precisely how • In some federa.l agencies, lL cOIlJ::iiderable number to determine what must be released and what may The Attorney General should seek amendments great this type of abuse may b

40 Federal Law and Its Enforoement FedemZ Law and Its Enforcement 41 -Ii .\ 1 ------~-~-- --- ...... , ---_.. ~------

We believe that reorganization of federal }aw Note enforcement functions would improve the efficiency Notes r! 1. ,Ve aL;o address the organization of federal law of the fe:derallaw enforcement machinery and enforcement functions in Phase I Recommendation 1. Statement of Jonathan C. Rose, Assistant Attorney Centralizing federal law \i General, Office of Legal Policy, U.S. Department of should receive the serious consideration of the 1 and arson in Phase II Recommendation,:; 25 enforcement functions Ii Attorney General. One move that should be Justice, before the House Subcommittee on f: through 27. Information and Individual Rights of the House considered is a transfer of the firearms, alcohol, Government Operations Committee, July 15,1981. and arson law enforcement functions of the ATF to the Department of Justice. This would p}ace 2. United States Senate Subcommittee on Criminal Recommendation 33 the responsibility for fighting one of this country's Laws and Procedures of the Senate Judiciary The Attorney General should study whether to mAst pressing and demanding crime problems­ Committee, The e1'osion of Zaw enforoement transfer the firearms, alcohol, and arson law tmflicking in illegal weapons-in our foremost intelligenoe and its impact on the publio security, enforcement functions of the Bureau of Alcohol, law enforcement department. Such a transfer ("Washington: U.S. Government Printing Office, Tobacco and Firearms to the Department. of would permit more vigorous enforcement of laws 1978) . Justice; to transfer the Border Patrol fUllt'tions governing the import and export of firearms and 3. Such reservations were expressed by the following of the Department of Justice to the Department of munitions 'at ports of entry. In addition, through persons testifying before the Government the Treasury; and to transfer the licensing and i Department of Justice central management, a Information and Individual Rights Subcommittee of compliance functions of the Drug Enforcement I Jarger pool of law enforcement resources could the House Government Operations Committee in Administration to tile Food and Drug A.clminis­ b be allocated more effectively to meet law enforcement mid-July 1981 : William Cox, re,presenting the tration of the Department of Health alld Human Ii requirements. American N ewspa,per Publishers Association and l Services. \1 Another area for reorganization consideration is bhe the National Newspaper Association; Edward Cony, Il transfer of the Border Patrol of the Department of representing the American Society of Newspaper '[I Editors ; Jack C. Landau, of the Reporters Justice to the U.S. Customs S<'l'vice of the Commentary Department of Treasury. This would permit Committee for Freedom of the Press; Tonda Rush, til representing the Freedom of Information Service Strengthening enforcement of federal laws, par­ more effective coordination in the effort to reduce Center; Joseph L. Rauh, Jr., of Americans for ticularly those related to firearms, narcotics, and the flow of narcotics into this cOhntry. Democratic Action; and Paul Hoffman, of the arson, is one of the most significant ways in which A final organizational issue that should be considered National Committee Against Repressive Legislation. the federal government could do more to assist in is whether the DEA licensing and compliance Similar reservations were expressed by Steven R. combatting the problem of violent crime. The function should be transferred to the FDA of the l'.nforcement of firearms and arson laws, currently I Dornfeld, representing the Society of Professional Department of Healbh and Human Services. We are Journalists, Sigma Delta Chi, before the Senate lodged in the Department of the Treasury, relates 1 concerned that incl uding such responsibilities in an closely to the enforcement of other criminal laws for 1 Judiciary Subcommittee on the Constitution on 1\ agency whose primary mission is the enforcement of July 15, 1981. which the Department of Justice is responsible. jI narcotics laws may interfere with the effective ,Yhile much could be done to improve the coorcli­ performance of its major duties. nation of efforts between these departments, we do ~ not believe that attempts of federal law enforcement U ,~re regret that our short life span precluded a more agencies, working on related problems, to coordinate detailed study of how these organizational considera­ their activities and share their resources and tions affect thela w enforcement function of the facilities can be as effective as placing them under a federal government. It seems clear to us that the central authority. Having related law enforcement current fragmentation of responsibilities and responsibilities in separate agencies can result too overlapping jurisdictions create great potential for often in inefficient operations, duplication of effort, less than optimal performance by federal law inadequate use of scarce resources, and conflicts over enforcement agencies and that the transfers we responsibilities, authority, and jurisdiction. Further­ propose for study would eliminate substantial more, the division of responsibilities between the jurisdictional overlaps, improve interdepartmental Departments of Justice and Treasury makes it more coordination, and eliminate duplication in com­ difficult for state and local law enforcement agencies batting violent crime. ",Ve recommend that the to work with the federal government in attacking Attorney General study the organizational issues we common problems such as firearm£ trafficking. As have raised and determine if centralization will Admiral Mahan, the master naval strategist, indeed strengthen the law enforcement operations of reasoned, "Granting the same aggregate of force, it the federal government. is ;:ever as great in two hands as in one, because it is not perfectly concentrated."

Fedeml Law and Its Enf01'oe7nent 43 493 Federal Law and Its Enforoement , ; ...,.------6Jfi .,' ----

in fact held in such facilities. Local governments 'With numbers of arrests for serious federal offenses .A related issue involving 18 U.S.C. 5003 concerns are the sole providers of jail space for more than likely to increase in the coming years, care and the requirement that the state must provide Housing federal detainees in local jails 70 percent of USMS prisoners. confinement, particularly of unsentenced federal reimbursement "in full for all costs involved." and state prisons prisoners, becomes a significant concern. It is This stipUlation means that states must have cash Many jails, however, are overcrowded, particularly therefore important that cooperation between local readily available to cover these costs, and many where they are being used as places to handle jails and the federal government be maintained and jurisdictions simply do not operate in a manner overflow of state prisoners. In this regard, the Bureau . that the federal government take steps to ensure "'hich peI1nits this. Similarly, the federal Recommendation 34 of Justice Statistics has reported that in 1980, 16 this. IV" e believe it necessary to work out special government must pay states to house its inmates The Attorney General should seek a waiver of states were holding almost 6,000 state prisoners in arrangements, including incenti"es for local jails. and encounters the same kind of procedural - local jails because of overcrowding.1 Thus, local the requirements of the Federal Procurement for the. housing of indiyicluals ullder federal obstacles. IV" e believe that it would be mutually Regulations for cont.racts entered into for governments are frequently reluctant to accept j ul'iscliction. bl'neficial to the states and federal government to federal defendants or inmates, regardless of amend the statute to permit a quid pro quo arrange­ temporary housing of federal prisoners in local An approach that we endorse is to provide special detention facilities and/or should seek legislation assurance of payment. If they do, it is felt that the ment whereby the federal government could house threat of violence may increase, as might the assistance to jails that house federal inmates. Forms state prisoners in return for the states' agreement to amend the Grant and Cooperative Agreement of such assist.ance might include helping in renova­ Act of 1977 (Public Law 95-224) to establish potential for inmates to file suits in federal court to house a similar number of federal prisoners claiming unconstitutional conditions of confinement. tion of these facilities or acquiring materials with no exchange of funds. and authorize the use of intergovernmental needed to improve conditions of confinement, or agreements with local go\'ernments for detention The extent of the problem is evidenced by the fact making certain types of training available to correc­ Additional discussion of the interface among local, space and services for federal prisoners. that from 1979 to 1981, among the jails with which tional officers, which would result in enhanced state, and federal governments regarding housing the federal government contracts, the number under jail capacity to handle the increased burdens of of federal prisoners is contained in Chapter 3. Recommendation 35 federal COllrt order for such violations increased recent years, including overcrowding. It has been Tho Attorney General should support 01' propose from 33 to 66; more than two-thirds of these were 01' estimated that such cooperative efforts (excluding Note a legislative appropriation for the implementation are the facilities most frequently used for federal capital construction) would require approximately 1. U.S. Department of Justice, Bureau of Justice of a Cooperative Agreement Program that detainees. As a result of these concerns, during the $3 million to supplement court compliance, Statistics Bulletin, Prisone?'s in 1980 (IV" ashington : would allow the United States Marshals Service past 2 years over 100 local detention facilities standards, implementation, and training funds U.S. Government Printing Office, May 1981). to assist local governments in acquiring equipment havo either placed ceilings on the number of federal now available. An additional $54 million to $58 and supplies necessary for jails to meet prisoners they will accept or have refused to accept million would be required for capital construction requirements for housing federal prisoners and any federal prisoners. Consequently, the USMS deemed necessary to adequately accommodate should support or propose a legislative has been forced in many cases to house prisoners in federal inmates. Since these funds would be going appropriation for capital improvements of remote jails or federal institutions and pay enormous to local detention facilities, they must be authorized detention facilities used to house federal prisoners, sums of money in transportation costs. As an separately from those recommended under the with priority given to those facilities under example, if inmates currently detained through state construction assistance program described in litigation or court order for overcrowding. contract in New Orleans had to be removed to the Cha pteI' 3 of this report. nearest federal facility, the USMS estimated annual A second mode of assistance might provide, on a Recommendation 36 cost for transportation to and from court would exceed $1 million. . i limited basis, that where a jail closest to a federal The Attorney General should support or propose district court is needed to temporarily house federal legislation to amend 18 U.S.C. 5003 to permit a Another problem associated with holding federal detainees, and the jail is overcrowded or otherwise quid pro quo arrangement whereby the federal prisoners in local jails is the cumbersome contractual I l1IlUble to readily accommodate them, violent, government could house state prisoners and the process required by Federal Procurement , sentenced state offenders then residing at such a states house a similar number of federal inmates Regulations. Some of the stipulations make it facility could be transferred to the nearest federal without requiring an exchange of funds. difficult to enter into cooperative arrangements institution or metropolitan correctional center. because detention facilities are not economically or Such transfers as this one can be accomplished physically in a position to comply with imposed I I pursuant to 18 U.S.C. 5003. Often, jails are Commentary requirements. Considering the temporary basis on I ill-equipped to handle or provide for the needs of which federal inmates are detained, contracts are these individuals, and through their transfer to Individuals under federal jurisdiction must be not necessarily appropriate for coverage under transported to federal courts throughout the country other facilities, space would be created for the Federal Procurement Regulations and should instead I temporary housing of federal detainees. for hearings and trials, though frequently there is be considered intergovernmental agreements. I no federal facility in which to house them near the Alternatively, a waiver might be granted to the particular judicial district. On a contractual basis, USMS by the Office of Management and Budget ! several federal agencies, but most often the ~ (OMB) to facilitate the contracting of jail space, II U.S. Marshals Service (USMS), work out such waiver being accomplished through an 1\ arrangements to pay for the cost of holding inmates extension of OMB's authority under the Grant and [\ and detainees in local detention facilities for the Cooperative Agreement Act of 1977 (Public Law required period. Close to 5,000 federal prisoners are 95-224). r: I /; i Ii Federal Law and Its Enforoement 45 I 44 Federal Law and Its Enforomnent (I !i \; ~ \~ ~f

'.r I ------~-~ ~------~------604'f*' ••

Many of our recommendations, if implemented, will Adequate personnel resources result in an increased number of prosecutions and The fight against violent crime requires not only expenditure of time. The U.S. Attorney's Offices, !Tood ideas but commitment. The strength of this for federal responsibilities currently operating at 400 below the congressionally ~ommitment can be measured by the willingness of authorized personnel ceiling of 4,400, will certu,inly the federal O'overnment to expend the resources b • 1 require more manpower to implement many of needed to make the good ideas work. 'Ve belIeve t lat this commitment of resources is essential to a suc­ Recommendation 37 theE'e recommendations if their efforts directed against other unlawful acts such as white-collar Ii cessful fight against crime. The Attorney General should seek a substantial crime and public corruption are not to be diminished. increase in personnel resources for federalla w The increased effort against narcotics traffic will enforcement and prosecutorial agencies to enable result in more prosecutions. The imposition of a them to effectiYely perform their present respon­ mandatory sentence for the use of a fireann in the sibilities and the additional and expanded commission of a federal felony will probably result responsibilities recommended by this Task Force. in fewer pleu, bargu,ins and more trials. Increased federal prosecutions of convicted felons apprehended in the possession of a firearm will, in turn, require Commentary an increase in personnel. In addition, hearings to To effectively implement many of our recommenda­ deny bail will require additionu,l prosecutorial tions, additional personnel resources will be required. resources. :More cases fnr the U.S. Attorney's Offices This is particularly so if other areas of law enforce­ can u,lso be expected if there is increased federal ment and prosecution are to continue to receive bw enforcement directed at youth gangs. Finally, the level of attention they deserve. the recommendations to increase u,nd facilitate the prosecution of those involved in drug trafficking Our recommendation of a policy of increased nar­ u,nd other violent illegal business u,ctivities can be cotics detection and interdiction, if implemented, expected to require additional resources, not only for will affect the resource requirements of a number U.S. Attorneys Offices, but also the Criminal and of investigativc agencies, including the Drug Tax Divisions of the Justice Department. Enforcement Administration (DEA) , Internal Revenue Service (IRS), Federal Bureau of Investi­ Similarly, implementation of many of our recom­ gation (FBI), U.S. Customs Service, the Border mendations, such as mandatory sentences for gun Patrol, and the U.S. Coast Guard. Our recommenda­ offenses, changes in criminal procedure, and tion that arson started by fire be subject to federal expansion of federal jurisdiction, will require jurisdiction can be expected to require additional additional resources for the Federal Prison System personnel resources for this activity. Similarly, as it will ultimately have to cope with an increased our call for an increased effort against dangerous workload as improved federal law enforcement fugitives will require additional resources for results in higher conviction rates and longer periods either or both the U.S. Marshal::; Service (US~rS) of incarceration. Finally, to be implemented, some of and the FBI. our recommendations relating to federalism will require additional resources. Personnel increases will Many more of our recommendations also imply a be necessary to support more training for state and need for expanded personnel resources for federal local personnel; administer the state prison construc­ agencies. The FBI may require additional manpower tion and related National Institute of Corrections to accept the fingerprints and criminal history (NIC) study programs; improve justice statistics information of juveniles convicted of violent crimes and allow for deve]opment of state and local in state courts as well as to fulfill their responsibilities information systems; and expand the research, with respect to juveniles who commit federal offenses testing, demonstration, evaluation, and funding of and engage in street gang activity. innovative criminal justice programs. Our recommendation that the Interstate Identifica­ We didllot attempt to estimate precisely the tion Index, if shown to be successful, be fully additional resources required to implement our implemented by the FBI may well require additional recommendations as the Department of Justice computer staff, and the FBI will require additional budgetary process exists for this purpose. Our manpower to reduce the fingerprint and name recommendation is designed to draw specific check request backlog as we have recommended attention to the fact that improved criminal justice they do. systems require resources not currently available.

4-6 Federal LOIW and Its Enforcernent , Federal Law and Its Enf01'cement 4-7 ~---...... ,...... ~. ~~ ------

[;

r Chapter 2

Criminal Procedure

r: Ii As we have recommended in other ehaptcl's of this report, much can be done to reduce the commission of serious crime, apprehend (Lnd prosecute offenders III who commit it, and provide :,;uffieient space in prison I: Ii L for those who need to be incarcerated for the protec­ Ii I: tion of society. There is another area, however, which needs to be addressed in order to allow for an overall Ii approach to combatting crime: that; area, which we Ii have termed "criminal procedure," deals with what 11 II happens in court from the initial bail determination Ii through sentencing and finally to collateral attack on J the conviction. Much of the testimony that we have received in hearings throughout the country comports with our view that a number of changes neeel to be made in criminal procedure in order to adequately protect society, while at the same time protect the rights of individuals accused of crime. These changes are also necessary for another reason: to restore public con­ fidence in our criminal justice system. People have never been able to understand why the federal bail laws have been structured in such a way as to almost ensure that defendants, no matter how dangerous, charged with crimes no matter how serious, are released back into soci.ety, not only before trial but even after conviction while awaiting sentence or appellate resolution. Members of our society have also been frustrated when they see offenders who clearly have committed serio11s crimes, found not guilty by reason of insanity ancI then either not committed to a mental institution or committed and then released in a short period of time.

"

01iminal P1'ooed~t1'e 49

tr I FJ

1V"e have also addresseu another area that hal:: drawn Increasingly, the Act has come under criticism as too 'I'he. Act currently makes no provision for denial of liberally allowing release and as providing too a great deal of public criticism. Under existing law, I bail on the ground of dangerousness. This does not evidence seized in good faith by a police of Reel' may Bail \ little flexibility to judges in mnking appropriate mean, however, that there are no situations in which not be used at trial if it is later found to ho.ve been. I release decisions regarding de tendants who pose pretrial detention may be ordered. For example, it is taken illegally as a result of investigative error, t serious risks of flight or danger to the community. recognized that a defendant who has threatened l I however unintended or trivial. 1Vhile the goul of the witnesses may be ordered detained 4 and, in some Recommendation 38 ( Denying bail to persons 'who a1'e found by clear and exclusionary rule-to deter illegal police conduct and convincing evidence to be dange1'ous. Under the circumstances, detention may be ordered for defend­ promote respect for the rule of hnv-is laudable, the I· ; The Attorney General should support or propose , I present provisions of the Bail Reform Act, the only nnts who appear likely to flee regardless of what 5 rule has the extremely unfortunate effect of barring legislation to amend the Bail Reform Act that r issue that may be considered by the court in making a release conditions are imposed. Furthermore, there is evidence of the truth from fL trial: which is f:upposed would accomplish the following: 1 pretrial release decision is the likelihood that the a widespread practice of detaining particularly to be a search for the truth, :1ml in freeing obviously a. Permit courts to deny bail to persons who are l' defendant will appear for trial if released. Consider­ dangerous defendants by the setting of high money guilty offenders. Our proposal is [limed at preserving found by clear and convincing evidence to present I bonds to assure appearance. ! ' ation of the danger the defendant may pose to the underlying basic purpose of the rule itl1d~ at the a danger to particular persons or the community. particular individuals or to the community is not Amending the Act to permit the denial of bail to same time, eliminating this serions drawback in the b. Deny bail to a person accused of a serious crime permitted. Although a defendant seeking release may defendants who pose a serious danger to community vast majority of cases. who had previously, while in a pretrial release po::;e a significant risk to the safety of others, the safety would not only constitute a sound policy, but We are also sensitive to the puhlic's concern when status, committed a serious crime for which he was courts are now without authority to deny release on also would represent a more honest way of dealing they see great disparity in sentences and release on convicted. the ground that the defendant will likely commit with the issue of potential misconduct by those parole of similarly situated offenders convicted of c. Codify existing case law defining the authority dangerous or violent acts while on bail. released pending trial. It is widely believed that similar offenses and to their frustration at not being of the courts to detain de.:fendants as to whom no The concept of permitting consideration of danger­ under the present system, despite the lack of able to determine at the time of sentence how long an conditions of release arc adequate to assure ousness in the pretrial release decision has been statutory authority to consider dangerousness in offender will actually spend in prison. Our recom­ appearance at trial. widely supported. It is incorporated in the release the release decision, many courts nonetheless do mendation to replace the present indeterminate detain dangerous defendants (even though they d. Abandon, in the case of serious crimea, the provisions of the District of Columbia Code which sentencing and parole structure in the federal system pose little or no risk of flight) by requiring the current standard presumptively favoring release was passed by Congress in 1970 1 and has been with the determinate model contained in the proposed posting of high money bonds-a phenomenon which of convicted persons awaiting imposition or endorsed in the American Bar Association (ABA) has cast doubt on the fairness of federal release Criminal Code Reform Act of 1979 is our response execution of sentence ')r appealing their con­ Standards Relating to the Administrat:.on of to this problem. practices. Providing n. statutory 'mechanism victions. Justice 2 and by the National Conference of Commis­ sioners on Uniform State Laws.s In addition, in his for the denial of bail to dangerous defendants Our last recommendation in this chapter has two e. Provide the government with the right to appeal annual address to the ABA in February of this year, would permit the courts to addl'ess squarely the issue principal goals. The first is to limit the presently release decisions analogous to the appellate rights the Chief Justice stressed the need to provide for of dangerousness. It would also afford defendants unending stream of collateral attacks on convictions now afforded to defendants. faced with detention, a hearing where the in order to ensure that at some point convictions will greater flexibility in our bail laws to permit judges, f. Require defendants to refrain from criminal government would be reqnired to establish become final, so that the public, and particulaFly the in making determinations, to give adequate consider­ activity as a mandatory condition of release. dangerousness by clear and convincing evidence. victims of crime, can rest assured that guilty ation to the issue of a defendant's dangerousness. g. Make the penalties for bail jumping more offenders will have to pay their debt to society. The The wide and growing support fOl' permitting This recommendation is meant to apply to the federal closely proportionate to the penalties for the system only. Because of the federal Speedy Trial Act, second goal is to restore the delicate balance of . consideration of a defendant's dangerousness in the federalism in our system of government by giving offense with which the defendant was originally pretrial release decision is simply a recognition that defendants who are denied bail because of the danger charged. that they pose would be detained only for a due consideration to the interests of the states in their the courts must have authority to make responsible relatively short time before the underlying charges criminal justice system. decisions regarding defendants who pose significant are disposed of. In many states, trials are not held dangers to the community. The state of current These recommendations, if enacted into law, will Commentary until! to 2 years have ela psed. 1Ve would not wish federal law, which deprives the courts of this author­ help protect society from the present totally unac­ to see defendants who hadllot been adjudicated Federal ba i1 practices are for the most part now ity, is in our view no longer tolerable. ceptable level of serious crime and, at the same time, guilty of the underlying charges detained for such governed by the Bail Reform Act of 1966 (18 U.S.C. do much to help restore public confidence in our To provide an adequate means for dealing with a long time, even with the protection of the "clear 3146 et seq.) . The primary purpose of the Act was to criminal justice system. dangerous defendants who are seeking release and convincing" standard. deemphasize the use of money bonds in the federal pending trial, the Bail Reform Act must be amended. courts, a practice which was perceived as resul,ting in While a majority of the Task Force favorecl adoption It is obvious that there are defendants as to whom disproportionate and unnecessary pretrial incarcera­ of this'recommendation, two members opposed it on no conditions of release will reasonably assure the tion of poor defendants, and to provide a range of the ground that the ability to predict future criminal safety of particular persons or the community. 1V"ith alternative forms of release. These goals of the Act­ behavior has not been developed to the point where respect to such defendants, the courts must be given cutting back on the excessive use of money bonds and the authority to deny bail. it is sufficiently reliable to be llsed for the purpose providing for flexibility in setting conditions of of denying bail. '1 release appropriate to the characteristics of indi­ \ vidual defendants-are ones which are worthy of Ii support. However, 15 years of experience with the Act have demonstrated that, in some respeots, it does ri not provide for appropriate release decisions. 1i 1 50 Oriminal Procedure II Oriminal Procedure 51 r:1': 353-069 a - 81 - 5 I:, I .'U ~-----...... """,""~~------

ojfender8101w have committed a 8eriou8 O1'ime while a case, the only means of assuring the defendant's p1'eviously on p1'etrial1'elease. A person who has been appearance at trial is through detention. The convicted of a serious offense committed while on law should make it clear that an order of detention fleeing, it may be ineffective in the case of a defend­ pretrial release has established beyond a reasonable in such circumstances is a,ppropriate. that they will not flee or pose a danger to the com­ doubt, first, that he is dangerous and, second, that munity and who are able to demonstrate that their ant facing 20 years or life imprisonment who will One of the most disturbing he cannot be trusted to conform to the requirements Post-conviction 1'elease. appeals raise substantial questions of law or fact be tempted to go into hiding until the government's aspects of the Bail Reform Act is its standard of the law while on release. He should therefore be likely to result in reversal of conviction or an case becomes stale or witnesses are unavailable governing release after conviction. This standard, presumed to be dangerous and ineligible for release. order for a new trial. and then surface a,t a later time to face only the Such a provision might be a strong deterrent to which is set out in 18 U.S.O. 3148, presumptively limited liability for bail jumping. favors the rele:ase of convicted persons who are. Government appeal of 1'elease decisions. Under criminal conduct by those who are in a release status. awaiting imposition or execution of sentence or who current law, defendants have an opportunity to Notes A possible additional provision would be to limit move for reduction of bond and to seek reconsider­ the period of time during which a person would be are appealing their convictions. Under this pro­ 1.23 D.O. Code 1321 and 1322. vision of the Act, a person seeking release afrer ation and appellate review of release decisions. ineligible for bail to a set period of time, such as The government, however, has no opportunity to 2. American Bar Association Standards on Pretrial 10 years. conviction is to be treated under 18 U.S.O. 3146 (which provides for pretrial release under the least obtain review of the conditions of release or the Release, 10-5.2 (1978). Denial of bail to a

52 Oriminal Procedure I,

I OrinJ,inal Procedure 53

~, I 6JP'* ., ------

found guilty but mentally ill are sentenc.ed under Insanity defense the criminal laws. During the department of corrections' intake procedures they are evaluated For example, an officer may in good faith rely on a psychiatrically. If they are fOI md to be indeed Exclusionary rule duly authorized search or arrest ,,-arrant or on a mentally ill, they are sent to tJ Le state department statute that is later found to be unconstitutional; or Recommendation 39 of mental health for treatmf'_llt. If they are considered an officer may make a reasonable interpretlltion of a to be fit once again Wif~~;ll the period of the statute which a court later determines to be inconsis­ The Attorney General should 5upport or propose Recommendation 40 tent with the legislative intent; or an officer may legislation that would create an additional verdict sentence, they I':.:e returned to the department of reasonably and in good faith <:onclude that a partic­ in federal criminal cases of "guilty but mentally corrections fo-: completion of their sentence. If they The fundamental and legitimate purpose of the ular set of facts and circumstances gives rise to ill" modeled after the recently passed Illinois are not consi( .ered to be fit through the entire exclusionary rule-to deter illcgal police conduct probable cause, but a court Jater concludes otherwise. statute and establish a feder111 commitment period of the sentence, at the end of the sentence and promote respect for the rule of law by prevent­ In such circumstances, we do not compreh(md how procedure for defendants round incompetent to they are releasL'l from the custody of the depr.rtment ing illegally obtained evidence Il'om bein~ usec~ the deterrent purpose of the exclnsionary rule is stand trial or not guilty by reason of insanity. of corrections. Ho '~'~ver, a new ci vi] commitment in a criminal trial-has been eroded by the actIOn sened by exclmdon of the evidence seized. hearing may be held to Pl ~"ide continued custody of the courts barring evidence of the truth, however in the department of mental}. ealth. important, if there is any inve:::t1gative error, The example cited above in which an officer relies Commentary A similar statute should be ai/opted by the federal however unintended or tri vial. IVe believe that on a duly authorized search or arrest warrant is a particularly compelHng example of good faith. A Defenaants suffering from a mental illness or ab­ government that would enar 1e federal juries to any remedy for the violation of ::t constit.l~tjonal warrant is a judicial mandate to an officer to conduct a normality have long been a problem for the ('riminal recognize that some defen~ants are mentally ill but riO'ht should be proportional to the magmtude of search or make an arrest, and the officer has a sworn courts. The primary function of the crimhlallaw is that their In''nt;11 illilC"ti IS not related to the th~ violation. In general, evidence should not be to establish legal norms to which all members of crime they committed or their culpability for it. excluded from a criminal proceeding if it has been duty to carry out its provisions. Accordingly, we believe that there should be a rule which states that society 'are expected to adhere. The insanity defense lt also would enable a jury to be confident that a obtained by un officer acting in the reasonable, good enidence obtained pursuant to and within the is intended to avoid punishing persons who, because defendant who is incarcerated as a result of its faith belief that it was in conformity to the Fourth scope of a warrant is prima facie the result of good of mental illness, are unable to conform to the. re­ verdict will receive treatment for that illness while Amendment to the Oonstitution, A showing that confined. faith on the part of the officer seizing the evidence. quirements of the criminal law. They are thought to evidence was obtained pursuant to and within the scope of a warrant constitutes prima facie cvidence This is not to say that good faith is limited to this be neither deserving of punishment nor subject to IVe also recommend that the Attorney General deterrence. of such a O'ood faith belief. "r e recommend that example, or even that this is the only case in which a support legislation to establish a federal com­ the Attor;ey General instrnct United States . prima facie rule of evidence should operate. The The line between sanity and insanity, however, often mitment procedure for persons found incompetent Attorneys and the Solicitor General to urge tIns ultimate issue under this proposal would be whether is not clear. Consequently, there are defendants who to stand trial or not guilty by reason of insanity rule in appropriate court proceedings, or support a police officer was acting in good faith at the time in federal court. At present, these persons be­ appear to be suffering from mental illness but from federal legislation establishing this rule, 01' both. that he conducted a search and seized certain come the responsibility of the state in which the a type of mental illness that may not significantly If this rule can be established, jt will H~-store the evidence. The showing of good faith would be affect their ability to obey the law. Such a person federal court is located, if the state is willing to confidence of the public and of Jaw enforcement determined from all of the facts and circumstances presents juries with the difficult choice of either assume that responsibility. Otherwise, they officers in the integrity of criminal proceedings of the search. making a finding of guilty, even though the jury may are released into the community, even though still and the value of constitutional guarantees. £f'el compassion beCfl.

Oriminal ProoedUire 55 ...... i·

j

The Attorney General therefore ~~ould suPP?rt Under the present sentencing structure, the length leO'islatively and in court the posItion that eVI~ence I of time that a prisoner actually spends in prison obtained in the course of a reasonable,.go.od faI~h Sentencing> and parole They will recommend t.o the sentencing judge an I is determined by the U.S. Parole Oommission. appropriate kind and range of sentence for a given searc h s IIOU ld not be excluded from cnmmal trials. The Parole Oommission, as how constituted, category of offense committed by a given category The following statutory language would accomplish f is an independent, nine-member body appointed of offender. In addition, sentences under the Oode this purpose: . Recommendation 41 I by the President, with jurisdiction over federal are fully determinate. The sentence imposed by the Except as s}'''!cifically provided by statute, e~Idence I inmates eligible for parole or released on parole judge is the sentence that will actually be served by which is obtained as a result of a search or seIzure The Attorney General should support the .. or mandatory release. In 1973, the then U.S. Parole the defendant, subject only to modest "good time" and which is otherwise admissible shall not be enactment into law of the sentencing prOVISIOns Board accepted the concept of parole guidelines, credits. The Oode provisions thus constitute a of the proposed Oriminal Oode Re~orm ~ct of excluded in a criminal proceedin~ brought by with a matrix model focusing on risk and severity. "truth-in-sentencing" package that will inform th~ United States unless: . . 1979 which provide for greater umformIt;y and I both the public and offenders of the real penalty While the operations of the guideline system have certainty in sentencing through the .c:-eatlOn of being imposed on each defendant. (1) the defendant mak~s a timely ob) ectlOn to resulted in reduced disparity and increased equity the introduction of the eVIdence; sentencing guidelines and the abolItIOn of parole.1 in decisionmaking, there continue to be criticisms It should be noted, however, that the sentencing (2) the defendant estrublishes by a pr.eponder­ of the ability of the Parole Oommission to achieve its guidelines system will not remove the judge's ance of the evidence that the search or SeIzure was stated objectives. These include- sent~mcing discretion. Instead, it will guide the in violation of the Fourth Amendment to the Commentary Oonstitution of the United States; and, • Prisoners and the public remain uncertain of judge in making his decision as to the appropriate I the true length of the sentence at the time of sentence. If the judge finds that an aggravating or (3) the prosecution fails to show by a prepon­ There is widespread agreement that the present I sentencing. mitigating circumstance is present in the case that derance of the evidence that the search or federal approach to sentencing is outmoded. and was not adequately considered in the guidelines seizure was undertaJ\:en in a reason~ble, ?ood f · to botll the public and persons convICted • The trial judge is the official with the best un all' b'l't t' f and that should result in a sentence different from faith belief that it was in confo.rmI~y WIth the of crime. It is based on an outmoded reha 1 1 a IOn information to be used in the determination of the I that recommended in the guidelines, the judge may Fourth Amendment to the OonStI~utlOn of the model in which the judge is supposed to set the sentence to be imposed. sentence the defendant outside the guidelines. United States. A showing that eVIdence was ob­ maXImum. term of I'lllln>isonment and the Parole • The parole commissioners and federal district A sentence that is above the guidelines may be tained pursuant to and within ~he s~ope of a Oommission is to determine when to release the court judges continue to second guess each other's warmnt constitutes prima faCIe eVIdence of such appealed 'by the defendant; a sentence below the prisoner because he is "reh~b~litat~d. ". Yet almost intentions, leading to distorted decisionmaking and guidelines may be appealed by the government. a good faith belief. everyone involved in the crul11nal Just~ce system uncertainty in actual sentences. The case law that is developed from these appeals now doubts that rehabilitation can ~e m~uced . To achieve the objective of this recommend.ation, • The closed proceedings of the Parole may, in turn, be used to further refine the guidelines. reliably in a prison setting and now IS q:ute certam the Attorney General should eith~r urge tIns rt Oommission diminish public respect for the Based on aU of the foregoing considerations, rule in appropriate court proceedm.gs, or. suppa that no one can really detect when a p~lsoner does r correctional system. federallegisla,tion that would establIsh.tJ:ls rule, become rehabilitated. Since the sentencmg laws have we believe that the United States Parole Oommis­ f alternative structure has been developed asa or both. 'While the final decision on tIllS ISSue :vould not been revised to take this into account, each All sionno longer serves a publicly beneficial purpose. part of the proposed Federal Oriminal Oode of the b3 within the province of the Suprem~ Oourt, I~ judge is left to apply his own notions of the purposes The Oriminal Oode Reform Act proposal to phase of sentencing. 96th Oongress. It is based on four purposes of out the Commission over a period of years as a part may be some time before an ~pp~opr~ate case IS sentencing: of the implementation of determinate sentencing accepted for decision. MeanwhIle, It .mIght :V~ll I . Federal judges now have essenti~lly unlimited is the best approach to take. b e approprIa. te for Oongress to conSIder tlns Issue m • The need to afford adequate deterrence to and unguided discretion in imposmg sentences. As criminal conduct. the form of proposed legislation. However, ",-e. a result offenders with similar backgroun?s who In supporting enactment of the Oriminal Oode . 1 t ]nave to the Attorney General the deCISIOn Ii ~ommit 'similar crimes often receive very dIfferent • The need to protect the public from further sentencing provisions, we note that it would be WIS 1 0" - • • b' t' crimes of the defendant. as to the best method of accomplishmgtllls 0 )ec lYe. sentences in the federal courts. Thus, some def.en­ J clearly preferable for such adoption to be a part of 1 dants recd ve a sentence that ma~ be too ~ement for I • The need to reflect the seriousness of the offense, the passage of a comprehensive refolm of the the proper protection. of the publIc, and ot?ers to promote respect for law, and to provide just fede:t'al criminal law. However, if it appears that may be given sentences that are unnecessal'lly harsh. plmishment. passage of the Oode as a whole will be delayed in the present Oongress, the sentencing provisions This problem has been examined with great car~ . • The need to provide the defendant with needed I educational or vocational training, medical care, or should be considered separately because of their in recent years, initially by the N ationaJ OommissIOn overriding importance. other correctional treatment in the most effective on Reform of Federal Oriminal Law, lat~r .by th.e manner.2 Department of Justice under recent admll.11stratIOns, 1I Notes and by the Judiciary Oommittees of the 93rd through t The sentencing provisions of the Oode create a the 96th Oongresses. The Senate Report on the j. 1. 'Ve also address sentencing in Phase I I' Sentencing Oommission within the Judicial Branch O Recommendation 14. l'lmlla· . I Oode Reform Act of 1979 concluded. . of the federal government that ip directed to establish that federal "criminal sentencing today IS m I 2. United States Senate, Oommittee on the sentencing guidelines to govern \'ud ihlposition of desperate need of reform." !' sentences for aU federal offenses. The guidelines Judiciary, Report on Oriminal Oode Reform Act of 1979, S. Rep. No. 96053, 96th Oongress, 2d Sess., 1 will treat in a consistent manner aU classes of page 923 (1980). I., offenses committed by all categories of offenders. "f f i ! i 66 Oriminal P'l'oaedure I! , , ,".". \ I .. \' . 1/ Oriminal Proaedu-re 5'1 ------

In the present state of criminal procedure in this benefited by a judgment providing that a man country, the former'ly extraordinary remedy of hearing. The case would in effect be remitted to the Habeas corpus shall tentatively go to jail today, but tomorrow collateral attack on a criminal judgment and sentenoe state court, where the evidentiary hearing would be and every day thereafter shall be subject to fresh has become not only ordinary but commonplace. held, unless the state court was unable, due to court litigation on issues already resolved." (Maokey v. Indeed, some members oHhe criminal Clefenr,e bar congestion, or unwilling to conduct the hearing. United States, 401 U.S. 667,691 (1971)). Recommendation 42 now foal' that failure to seek collateral review may After the hearing, the state court would transmit subject them to claims of incompetence or to suits In addition to burdening an already failing sen­ its findings of fact to the district court, which would The Attorney General should support or propose for malpractice. The normal course of a criminal tencing process, other problems are caused, or not be able to substitute its own findings for those legislation that would: actio?, formerly limited to charge, tria'l, and appeal, exacerbated, by the present state of collateral of the state court. The district court would then make a. Require, where evidentiary hearings in habeas now mcludes one or more state collateral attacks attacks on criminal judgments. Courts are over­ conclusions of law, based on the evidentiary findings corpus cases are necessary in the judgment of the (where allowed) and one or more federal habeas burdened with prisoner petitions. of the state court. This procedure would fully protect district court, that the district court afford the the rights of prisoners and, at the same time, corpus petitions, often on the very same claims The large number of petitions are only the surface opportunity to the appropriate state court to ihold previously litigated. The length of the prooess is eliminate a source of severe friction between state the evidentiary hearing. of the problem. Title 28 U.S.C. 2254 (b) contains a and federal courts. inordinate and its expense is multiplied. There is no requirement that state prisoners exhaust their state b. Prevent federal district courts from holding longer a recognition that at some point there must be remedies before filing a federal petition. It is Our second recommendation in this area would evidentiary hearings on facts which were fully an end to litigation. While it is certainly important apparent that the exhaustion requirement places modify 28 U.S.O. 2254 ( d) by preventing federal expounded and found in the state court proceeding. that we take great care to be sure that persons who a burden not only on federal but state judiciaries district court judges from holding evidentiary c. Impose a 3-year statute of limitations on habeas are convicted in criminal matters are, in some abso­ as well. The total expenditure of judicial time hearings on issues where the facts were fully ex­ corpus petitions. The 3-year period would lute sense, guilty of the crime with which they are and effort in this area is incalculable. pounded and found in the state court proceeding, commence on the latest of the following dates: charged, the present system in practice O"oes wen as long as the state proceeding was open to a full Finally, state habeas petitions create a delicate (1) the date the state court judgment became beyond this point and endlessly prolongs th: process and fair development of the facts. Under present problem in federalism. State courts, no less than final, as t.o persons whose ~uilt is notin doubt. Schneokloth law, there is a presumption against a second hearing federal, exist to protect the rights of persons accused (2) the date of pronouncement of a federal :r. BU8tamonte, 412 U.S. 218, 257 (Powell, .r. dissent­ in federal court if the facts were fully and fairly of crimes. However, the present collateral attack right which ,had not existed at the time of trial and mg) (1972); Lefk.D1oitzv. Newsome, 420 U.S. 283, developed, but federal judges still have the discre­ procedure has resulted in the anomaly of issues which had been determined to be retroactive, or 302 (Powell, J. dissenting) (1975). tion to conduct such a hearing. This recommenda­ which have been presented to state courts of last (3) the date of discovery of new evidence by the tion would take away that discretion. There appears Not only does this lengthy process go well beyond resort, and having been there fully briefed, argued, petitioner which lays the factual predicate for to be no rational reason why issues of fact should the bounds ?T reasonable certainty as to guilt, and decided on the merits, and as to which certiorari has assertion of a federal right. be relitigated. thus bears lIttle relationship to our view of the been denied by the Supreme Court, being relitigated d. Codify existing case law barring litigation of criminal tri'al as a search for truth, but it also does by the lowest tier of the federal judiciary in habeas Our third recommendation directly addresses the issues not properly raised in state court unless damage to any hope t.hat a prison sentence will corpus proceedings. Certainly, it was not intended issue of finality. It would impose a 3-year statute "cause and prejudice" is shown, and provide a have some rehabilitative eJfect since aclmowledO"e­ to so demean the ability or attention to duty of the of limitations on habeas corpus petitions brought statutory definition for "cause." ment of the crime rund its wrongfulness is view:d state judiciary. While it is true that federal courts by state prisoners. The 3-year period would com­ as the first ~tep toward rehabilitation. But why are, and should be, the final guardians of the mence on the latest of the following dates: the should a crlmmally convicted person concede this Constitution, they are not the only guardians of it. date the state court judgment became final; the Commentary when, by its. postconviction procedures, society date of pronouncement of a federal right which apparently IS not certain of it either ~ As long as ,Ve have made recommendations to change four had not existed at the time of trial and which had Most people agree that the greatest single deterrent col!ateral attacks are pending, the person seeking aspects of the law with respect to the writ of habeas been determined to be retroactive: or the date of to crime is swift and sure punishment for guilty rel.lef may have the reasonable expectation of corpus. The overall purpose of these recommenda­ discovery of new evidence by the petitioner which offenders. Even though the vast majority of crimes beml? freed ?y a court without regard to the question tions is not to diminish the "great writ," but rather lays the factual predicate for assertion of a federal are not followed by arrests and convictions, when of Ius. readmess to be returned to society. In to promote respect for it, by limiting the writ to right. that does occur, public confidence in the criminal such CIrcnmstances, the already hard task of situations where it is truly needed. ,Ve are mindful of the constitutional implications justice system tends to be eroded by a perception rehabilitllItion is made nearly h~possible. that the law allows a virtually endless stream of A partiCUlar problem from the point of view of the contained in our recommendations. The Oonstitution attacks on the conviction, first, by direct appeal and, Excessive opportunity for collateral review also states is the present practice in the federal habeas requires that "the privilege of the writ of habeas second, by easy accessibi'lity of the federal writ of nndermines other sentencing 0"0a1s. For instance corpus procedures of U.S. magistrates and district corpus shall not be suspended, unless when in hrubeas corpus. Not only does this consume.a large it has been noted that "[t]he id:'~ of just condem- ' court judges conducting evidentiary hearings and cases of rebellion or invasion the public safety may amount of prosecutorial and J'udicial resources it nation lies ~t the heart of the criminal law, and we making findings of fact that in effect overrule require it." 1 However, there was no right for state occasionally results in the reversal of a conviction sh~ul.duot b~l~t!y ;,reate processes which implicitly decisions reached by state trial and appellate courts. prisoners to the federal writ of habetls corpus at many years later, long after essential witnesses have belle Its pOSSIbIlIty (Bator, Finality in criminal To remedy this problem, we recommend that the the time that the Constitution was adopted. It was died or disappeared. Retrial under these oircum­ law and federal habeas 001'PUS for state prisoners, Attorney General support or propose legislation that. not until 1867 that Congress created a statuto?'Y stances is extremely difficult at best· in some cases it 76 Harv. L. Rev. 441,452 (1963)). In sum, as Justice would require, where evidentiary hearings are right to the writ for state prisoners. Moreover, as ~s in:possible. As Chief Justice Bur~er pointed out Harlan put it, "[u]o one, not criminal defendants necessary in the judgment of the district court, that Chief Justice Burger, joined by Justices Blackmun mIllS speech to the American Bar Association, there not the judicial system, not society as a whole is ' the district court afford the opportunity to the and Rehnquist, in his concurring opinion in S'wain must be-at some point-finality of jUdgment. appropriate state coui~t to hold the evidentiary v. Pressley, 430 U.S. 372, 385 (1977), stated "I do not believe that the Suspension Clause requires t,

68 Oriminal Procedure Oriminal Prooedure 59 A** .,'

Congress to provide a federal remedy for collateral This statutory definition is particularly important. Chapter 3 review of a conviction entered by a court of compe­ A number of federal courts now are defining "cause" tent jurisdiction." It is partly as a result of this to include ineffective assistance of counsel that falls issue that our recommendation is limited in its short of a Sixth Amendment violation.2 W·e are of application to state prisoners. ·While questions the opinion that this is too broad a definition and undoubtedly remain, and the law in this area is that it should be narrowed along the lines that we Federalism in Criminal unsettled we believe that the need for a statute of , 1 . have suggested. Federal courts would still be able to Justice limitations is so pressing that we should not lesItate reach truly fundamental issues and, at the same time, to make such a recommendation, ever mindful the interests of the state criminal justice systems that the ultimate resolution of the constitutionality would be protected. of a statute of limitations will be left to the courts. Our final recommendation in this area would bar Notes litiO"ation in federal habeas corpus suits of issues 1. Article III, Section 9, Clau.se 2, Constitution of Under our system of government, the states and local notproperly raised in state court unless "cause and the United States. governments have the major responsibility for prejudice" is shown for failing to comply with 2. Tyler' v. Phelps, 622 F.2d172 (5th Cir. 1980) ; Ool­ investigating and prosecuting crimes and for taking those state procedures and would provide a statutory corrective action against those found guilty. In lins v. Auger', 577 F.2d 1107, 1110 n.2 (8th Cir. 1978) definition for "cause." The Supreme Court has Chapter 1, we discussed ways in which the federal ( dictum), C61't. denied, 439 U.S. 1133 (1979); already ruled in Wainwright v. Sykes, 433 U,S. government can participate (lir'eatly in the fight Oooper' v. Fitzha1'1'is, 586 F.2d1325 (9th Cir. 1978) 72 (1977), that issues may not be ruised in h~beas against serious crime by establishing and exercising (en bane), ee1't. denied, 440 U.S. 974 (1979); corpus petitions if they were not properly raIsed jurisdiction over certain crimes of national import. Jiminez v. E'stelle, 557 F.2d 506, 511 (5th Cir. 1977) in state court, unless cause is shown for failure to IVe now turn our attention to ways in which the (dictum). See, however: Oole v. Stevenson, 620 F.2cl raise them and prejudice is proven to have resulted. federal government can participate indir'ectly by 1055 (5th Cir. 1980), cer't. denied, 66 L.Ed. 2d 301 This recommendation would codify that ruling. providing services and assistance to state and local (1980) reaching an opposite conclusion. The Supreme Court did not define "cause" in the governments to enhance their ability to deal with serious crime. Sykes opinion, however. Our recommendation would provide a statutory definition of "cause" or those IV e have looked at technical services the federal circumstances under which a prisoner would be government has traditionally provided to state and excused for fuilure to raise an issue in the state local agencies,such as laboratory analysis and proceedings. They would be that- fingerprint identification, to see if these services • The federal right asserted did not exist at the could be improved. I'Te have looked at interstate time of the trial and that right has been determined services the federal government is in the 'best position to be retroactive in its application; to provide to state and local agencies, such as tracking clown persons who have fled a state to avoid • the state court procedures precluded the peti­ and establishing means by which state tioner from asserting the right sought to be prose~ution and local agencies can learn about a person's past litigated; criminal conduct in another state. We have looked • the prosecutorial authorities or a judicial officer at the possibil1ty of enhancing the skills of state and suppressed evidence from the petitioner or his local criminal justice personnel by permitting them attorney which prevented the chdm from being to take advantage of federal training progra.ms. We raised and disposed of; Or' have also looked at activities that are most useful • material and controlling facts upon whic4 the when undertaken on a national basis, such as the claim is predicated were not known to petitioner or collection of statistics on crime and the criminal his attorney and could not have been ascertained justice process throughout the country, or that are by the exercise of reasona.l;>le diligence. most cost-effective when sponsored by the federal government, such as research and development of innovative approaches to combatting crime more effectively. Finally, we have examined the need fOl; . federal financial assistance to state and local govern- ments to help them undertake such innovative . approaches, to help them deal with unusual situations which are clearly beyond their ability to handle, and to help them build the correctional facilities that are essential to providing credible sanction for serious wrongdoing.

Federoalism in Oriminal JU8tice 61 60 Oriminal Pr'oaedur'e I~ . ~!I . I e::+ P ,

We do not believe that the federal government should direct or subsidize the ongoing operations of state and local criminal j ustioo systems or should Fugitives It would constitute a relatively effective use of scarce supersede those systems with a national police or law enforcement resources to make a substantial court or correctional system. But we do believe that effort to apprehend fugitives, who are individuals Training of state and local personnel by providing useful services, national perspectives, already identified as offenders and charg<·\d with or and financial assistance for specific important pur­ Recommendation 43 convicted of particular crimes. In addition, public confidence in law enforcement is eroded by news poses, the federal government can do much to The Attorney General should seek additional Recommendation 44 improve the coordinated federal-state-Iocal fight reports that a serious crime has been committed by an resources for use in the apprehension of major individual who is supposed to be in jail or prison against serious crime. federal fugitives and state fugitives who are The Attorney General should establish, and where for an earlier offense but who has been abln ttl evade necessary seek additional resources for, specialized believed to have crossed state boundaries and law enforcement authorities. who have committed or are accused of having training programs to allow state and local law committed serious crimes. Therefore, we recommend that the Attorney General enforcement personnel to enhance their ability seek a significantly increased level of funding for to combat serious crime. 1 this important activity. In recommending such Commentary additional resources, we believe that the Attorney Recommendation 45 General should ensure that the fugitive apprehension The Attorney General should seek additional As we indicated in our Phase I Recommendation 1, activities of the Department of Justice are managed there is a need for improved management and resources to allow state and local prosecutors to as effectively as possible. This includes more effective participate in training programs for prosecutors.l coordination in the apprehension of federal fugitives coordination among federal law enforcement and of state fugitives who have crossed state lines in agencies and between federal and state authorities. Recommendation 46 order to avoid prosecution or punishment, and Finally, the Attorney General should direct higher priority should be given to the apprehension that the highest priority be given to the The Attorney General should ensure that the of dangerous fugitives. apprehension of violence-prone fugitives, major soon-to-be established National Corrections Academy will have adequate resources to enable In many instances, state and locaJ authoritiE:'s are drug traffickers, and others who have committed state and local correctional personnel to receive selective about which warrants they refer to the similarly serious offenses. training necessary to accommodate the demands Federal Bureau of Investigation (FBI) to investi­ on their agencies for managing and supervising gate under the Fugitive Felon Act, mindful of the increased populations of serious offenders.1 scarce resources the FBI has to devote to the execu­ tion of such fugitive warrants. With the transfer of several fugitivfJ functionEl from the FBI to the U.S. Commentary Marshals Service in 1979, the FBI underwent a loss of manpower that substantially weakened its ability It is clear that in order to implement an effective to carry out important fugitive functions for which national program to combat serious crime, the it still has responsibility. These functions center various components of the criminal justice system on the apprehension of fugitives wanted for the com­ must have personnel who are highly skilled and mission of a large number of federal crimes and specially trained. Currently, a number of federal fugitives who have felony warrants outstanding from agencies provide training to state and local law state authorities and for whom there is evidence that enforcement and corrections officials and prosecutors. they have crossed state lines to avoid apprehension, However, these efforts have typically been limited prosecution, and punishment where the state in scope and availability. We believe it imperative authority is willing to extradite. to enhance the state and local capability to carry out the serious crime initiatives proposed in this Even if the FBI were to give higher priority to thr. report and therefore recommend expansion of apprehension of such fugitives, as recommended in cooperative training programs. Phase I of this report, the scarcity of available resources combined with the need to carry out. the other important responsibilities assigned to the FBI create a situation where many potentially dangerous fugitives cannot presently be investigated by the FBI.

6~ Fedemli8m in Oriminal Justice '1 I

I' 353-069 0 - 81 - 6 n .- -~ .. -----~-

f Training law enforoement personnel. The federal The second study was made by an interagency task 1 government has the responsibility of accepting a force representing ten executive departments and We believe that giving state and local law The Criminal Division sponsors specialized courses leadership role in this na,tion's efforts to combat independent agencies of the federal government. \ enforcement personnel increased access to these in narcotics conspiracy, organized crime, public serious crime. The first line in this fight against This study identified the kind of facility that was I specialized tra,ining programs is an essential form corruption and fraud, and the exercise of prosecu­ : crime is, of course, state and local enforcement needed, based on training requirements of numerous , of federal support for state and local governments. torial discretion. These courses would prepare state agencies. The law enforcement training programs federal agencies. It analyzed the requirements for I: This recommendation is consistent with our Phase I and local prosecutors to handle complex cases. of the Federal Bureau of Investigation (FBI), criminal investigators and police officers at both the Recommendation 11 and underscores our belief in r: a strong national commitment to assist state and Additional courses being developed by the Depart­ the Drug Enforcement Administration (DEA) , recruit level and the advanced and specialized level. ment of Justice, such as arson-for-profit, tracing the Bureau of Alcohol, Tobacco and Firearms local governments in their efforts to reduce violent A prospectus based on these studies was approved illegal narcotics profits, legal aspects of drug (ATF) , and the U.S. Marshals Service (USMS) ~ crime through effective law enforcement. by Congress in 1969, which authorized the investigations, and street crime patterns, would are important vehicles through which the federal cOllstruction of a consolidated training facility. Ii Tmining p?'oserndo1's. The training of state and local benefit state and local prosecutorI:' as well as federal government can enhance the professional status I Congress expressed its intent that the personnel of prosecutors is extremely important to effective prosecutors in preparing their cases for trial. and capabilities of state and local law enforcement violent crime enforcement. With the termination of all federalla w enforcement agencies would In addition to the training programs sponsored by officers. 1 operations of the Law Enforcement Assistance participate in training at the Center. The FBI was the federal government, there are programs The FBI Academy in Quantico, Virginia, is the excluded because it has the collateral function of ! Administration (LEAA) , training support for state and local prosecutors has been reduced. There is a sponsored by state and local governments as well focal point of all the Bureau's training programs. training state and local officers as well as its own as private institutions such as the Northwestern definite need to support and expand this legal The Bureau offers field training programs agents. In addition, it had a modern training facility University School of Law, the National ColleO"e of training function. throughout the country. and was already providing adequate training for its District Attorneys, and the National Institute for own personnel. During 1980, 996 state and local law enforcement By extending to state and local prosecutors the Trial Advocacy. These programs should be available officers received advanced instruction at the ATF, DEA, and USMS are among the agencies that training programs now offered to Department of to prosecutors who can demonstrate a need for Academy, while approximately 123,000 received conduct training at FLETC. DEA is mandated by .Tustice prosecutors by the Attorney General's financial assistance. Advocacy Institute (AGAI) anel the Criminal some type of training from the FBI in their state Public Law 91-513 to conduct training programs Personnel from different agencies attending the same Division, the federal government would enhance the or local jurisdiction. During fiscal 1981, approxi­ on drug enforcement for state and local personnel. In training program benefit not only from the crime-combatting ability of state and local prose­ mately 109 FBI agent work years of effort will be 1980, DEA trained approximately 8,000 state and program's content but also from the opportunity ClItors in much the Sftme way as the law enforcement engaged in field training activities. The Academy local law enforcement officers and 900 foreign officials. to discuss mutual problems with others in the tra.ining programs offered by the FBI at Quantico, will conduct specialized schools and courses DEA will spend approximately $3 million this fiscal same field who share the same frustrations. lYe Virginia, enhance the crime combatting ability of dealing with a broad range of police-related year to support training activities covering believe that the federal government would enhance state and local police. Such programs would prepare topics, such as terrorism and counter-terrorism, iuYestigatiYe, technical, and managerial topics. the prosecution of violent crime by extending its state and local prosecutors for cross-designation in death investigations, interpersonal violence, and ATF provides significant violent crime assistance training programs at all levels to a significant firearms and related subjects. The cost for food federal courts as the need arises as discussed in our number of state and local prosecutors. to state and local law enforcement officials through Phase I Recommendation 7. This would put federal, ancllodging at the Academy per officer is $70 per training at FLETC and atATF field offices. These day, not including transportation to and from the state, and local prosecutors in a better position to T?'aininq correctional personnel. Serious crises and programs include courses on firearms and arson-for­ Academy. ensure that violent criminal activity can be investi­ challenges currently face corrections, among profit investigation techniques, explosives, and gated and prosecuted in the most efficient way. In them overcrowding, outmoded facilities, insufllcient The Federal Law Enforcement Training Center laboratory skills. Some 2,000 law enforcement addition, such training would provide state and local resources to adequately improve conditions, and (FLETC) in Glynco, Georgia, was established in personnel will have received ATF training by the prosecutors with modr Is for establishing their own high staff attrition. Public funding has historically 1970 to serve as an interagency training facility end of fiscal 1982. training programs in bheir respective jurisdictions. neglected the needs of corrections and relatively for federal police officers and criminal investigators. The USMS has trained approximately 500 state and Finally, through such joint training programs, few administrators have been trained to handle the increased pressures and burdens placed on their l'he concept of consolidating federal law local law enforcement officers in the areas of fugitive federal, state, and local prosecutors could establish ever-expanding correctional systems; nor have many enforcement training was developed as a result apprehension and witness security. It assists other contacts, develop compatible priorities, and improve had the opportunity to li:eep abreast of national of two studies. The first was made in 1967 by the federal agencies, such as the DEA Conspiracy School, cooperation. then Bureau or the Budget. This study showed a in their training pj·ograms. trends and standards promUlgated by the field. The Attorney General's Advocacy Institute strongly Training for line staff, mid-level managers, and need for quality training for federal law By allocating more resources to training efforts at emphasizes courses dealing with trial advocacy in enforcement officers. Generally speaking, this trainers, particularly at the local level, has been FLETC and Quantico, existing specialized courses which prosecutors practice trial exercises such as especially limited. training was not being conducted in many agencies could be expanded to allow the participation of more direct and cross examination, opening statements, because adequate training facilities were not state and local la w enforcement officers. Examples of and closing arguments. In addition, it offers special­ In recent years, the outbreak of s('rious available. The study also revealed that the these existing specialized courses are fugitive ized courseS which concent.rate on special problems of disturbances or riots in several states has highlighted training that was being done varied in content apprehension, explosives and arson-for-profit federal practice and which examine in depth the the need for govel1unent officials to take a closer and length. Furthermore, it was not cost-effective investigative techniques, witness secudty and special areas of law handled by the Depaltment of look at causal factors in prison unrest. ,Yhile due to sporadic scheduling and duplication. relocation, and drug investigative techniques. Justice. State and local prosecutors who participate overcrowding has frequently been cited as a major in these courses would develop better trial skills and factor in many acts of violence, it has now been would be better able to evaluate their cases to recognized that pOOl' training and inadequate determine whether they should be tried in the federal supervision of correctional staff have contributed court, the state court, or both. to the problem.

64 Federalism in Oriminal .Tustice I Fedemlism in 01'iminal J1lstice 65

,~<'''-,~,~~~"=~,<-" \ fJ I

---~---~~----~~~----'------'------~~---~-.. --~--- 1f'JfI* .,

II I' Up "With an estimated 30,000 trainers and managers, Notes Given the emphasis being placed on incarcerating 1 more violent offenders for longer periods of time, mid-level and above, and the increasing demand 1. 'Ye also address training of state amI local per­ the difficulties of operating safe and humane being placed on them, enhancement or NIC's Exchange of criminal history information sonnel in Phase I Recommendation 11. institutions are magnified. Even if prisons and jails crupacity to provide training to this group is were all modern and not overcrowded, they warranted. 2. Projection based on U.S. Department of Justice, nonetheless would be inadequate if not staffed by National Institute of Justice, Am.erican p1'isons The Federal Prison System (FPS) also operates an i competent, lyell-trained personnel. Given the fact and jails, v. III (\Yashington: U.S. Government Recommendation 47 eAi:ensive training program, the tal'get audience j that prisons are presently overcrowded and are Printing Office, 1080). being FPS staff. Beginning in fiscal 1982, at the a. If the eight-state prototype test of the Inter­ expected to remain so for the near future, proper I 3. Testimony of tho Attomey General of the State Federal Law Enforcement 'l'raining Center state Identification Index (III) is successful, trailling of correctional staff is essential for the of Florida indicated a 91-percent tumorer of (FLETC), every new employee will receive 104 l the Attorney General should direct the Federal operation of viable, safe, humane institutions. correctional officers at the majOl' state penitentiary. hours of basic training, most of which focuses on I! Bureau of Investigation to begin immediately In terms of the federal role in training state and areas related to daily prison operation, such as the development of the index and should ensure local corrections personnel, we found several firearms, seH-defense, contraband, and security. that adequate computer support and staff are approaches t.o have promise, based on the experiences After the fi'rst year, all institutional employees available to develop and maintain it for the federal of the two Department of Justice agencies that receive additional training in correctional subjects government, all 50 states, the District of Columbia, currently provide correctional training programs. and individual specialty areas. and appropriate ar.eas of federal jurisdiction outside of the United States. The National Institute of Corrections (NIO) , ·While the FPS training program is geared toward b. If the prototype test demonstrates that such consistent with its legislative mandate, clll'rently the policies and procedures of the federal system. an index is not feasible, the Attol'l1ey General offers basic and advanced management training for some of the basic training, suoh as self-defense or use should direct the FBI to develop alternative state and local correctional administrators, of firearms, is sufficiently generic to be of use to ~ ! , l proposals for the exchange of federal, state, and supervisors, and mid-level managers; conducts ; state and local corrections. In addition, various local criminal history information, which may training for agency trainers; provides j ail and institutions 'Within the FPS offer special programs include a national data base or such records or correctional officer correspondence courses; offers in areas such as disturbance control and interper­ message switching.1 special courses in areas such as labor relations, legal sonal communications, which would be of benefit to issues, and fire safety; and develops a wide range many line staff. In these situations, the FPS training I. Recommendation 48 of staff training materials. materials could be adapted for use by state and local personnel, and FPS 'personnel could be used to train 1I ThQ'.l Attorney General should support or propose NIC's training resources art3 targeted primarily on i; those above the line staff level. The main reasons for state and locai employees. Similarly, much of NIC's l

66 Fedemlism in 01'iminal Justice Fedemlism in 07'iminaZ Justice 67

:r I ,.~,: .. t :"'" Recommendation 50 For a state to participate in the III, it must have a The Attorney General should seek additional central repository of criminal history record ~Ve wish to make clear, however, that we, and many Another area in which we wish to strengthen a Phase resources for the FBI to reduce the backlog of information for offenders throughout the state and, throughout the criminal justice system, believe that I recommendation through the provision of addi­ requests for fingerprint and name checks and for an but the smallest states, a computerized system a national data base of criminal history records (or tional reSOUl'ces is the backlog of requests for to enable it to respond to such requests more to allow quick retrieval of information to respond to its equivalent through message switching capa:bili­ Jingerprint and name checks in the FBI. In Phase I promptly, including those from non-law enforce­ an interstate request. At this time, it is unknown ties) is by far the most efficient, secure, and effective we recommended that "The Attorney General should ment users, and should assign high priority to how many states have fully adequate information method of criminal history record information take an steps necessary to reduce substantially the swift completion of computerizing fingerprint systems for this purpose, nor how many other states exchange. ~Ve did not recommend the establishment delay in processing criminal identification applica.­ 2 files. have systems that need upgrading to take advantage of such a system at this time because the III proto­ tions." ~Ve have been informed that as much progress of the III. The FBI will be surveying the states type test was in the development stage and the III as is possible with existing resources has been made this fall to determine the state-of-the-art in this concept itself has a great deal of promise for meeting in this area but that no additional reduction is regard. Commentary needs in this area. possible within the constraints of existing resources. Criminal history information is vital to optimum The cost of developing information systems and The results of the eight-state III test will indicate However, as we noted hl our Phase I Recommenda­ tion 9, the FBI reports that the average response performance of the criminal justice system. The cent.ral state repositories containing record infor­ , which of the alternatives of Recommendation 47 is police need adequate, accurate information for the ~atlOn on all offenders throughout the state is so i appropriate. At that time, the FBI should revise time for a request is 25 days, although some inde­ prevention and investigation of criminal activity lugh as to preclude III partkipation by many states its long-range plans to reduce the current duplication pendent studies have estimated it to be even longer. and for the apprehension of criminal offenders; that are under budgetary constraints. ~Vhile we are of services between its Identification Division and This is unacceptable; information provided too late prosecutors and the judiciary need such information ge~e~a!ly reluctant to recommend federal support :for I its National Crime Information Center (NCIC) to be of use is no better than information that is not for bringing offenders to justice; courts need actIVItIes that are the province of the states we . which operates the III prototype and has in the past provided at all. Thus, we recommend that additional additional information to determine appropriate believe that because of the high cost and interstate operated the Computerized Criminal History (CCH) resources be made available to the FBI to reduce sentences; and correctional agencies need it to select nature of the III, funding should be made available I system. the backlog and the average response time for finger­ proper correctional programs. to the states to allow them to fully participate in print and name checks. 1-Ve have been advised that I Both organizations collect and disseminate essenti­ the III. Applicable to the assistance should be the one way to reduce the backlog and to shorten re­ ally the same criminal history information to federal, In Phase I of our work, we recommended that the general conditions set forth elsewhere in this report ~ sponse time is swift completion of computerizing state, and local users. A 1979 General Accounting FBI "should establish the Interstate Identification for direct grants to state and local governments: fingerprint fi.les, which we so recommend. Index (III)." We believe that an operational III [I Office report found that 44 percent of the CCH that there should be reasonable match provisions records were duplicated in the IdentiJication Divi­ It has been proposed by some that requiring reim­ would facilitate the interstate exchange of criminal and adherence to reasonable time limits. history information. (For a discussion of III and sion's computerized files (AIDS), and that 16 percent bursement fro111 non-law enforcement users of this other current exchange systems, see Phase I We recognize that state participation in developing 1 of the AIDS records were duplicated in the CCH.3 service would allow the addition of staff and the I Recommendation 4.) and maintaining the III would be necessarily ultimate reductions in backlog and response time that II There are a number of reasons why the duplication \Toluntary and that many states may elect not to we recommend. It has also been argued that addi­ As noted in Phase I Recommendation 4, a III has persisted since the establishment of CCH in 1971. participate, particularly in the early months of its tional stafi' should not be hired until such reimburse­ prototype test began on June 29, 1981, covering These include uncertainty over the future of the CCH operation. However, grants to assist the states in ments are received by the FBI. ~Ve believe, howe"er, requests to the FBI's Computerized Criminal Ii program, necessitating continuation of the Identifica­ developing the necessary state repositories and d that the situation is so critical to the criminal justice History (qCH) system for criminal history record tion Division activities to ensure the availability of information systems should encourage state par­ I: community that additional staff resources should be information the State of Florida, and is being Ii criminal history record information. Additionally, ~or tid.pation. This, coupled with our belief that such made available immec.iately. As reimbursements are expanded to lllclude the other seven states that " a ma.ximum of only 15 states have participated in an ~n.dex is co~ceptually sound and would greatly received prospectively, they can be used to offset the actively participate in CCR. Final assessment of '. COlI at anyone time, n1al{ing the criminalllistory ~acIhtate. the .mterstate exchange of criminal history cost to the government for the additional personnel the test will not be possible until several months activities of the Identification Division necessary for costs. lllformabon If fully implemented, leads us to urge after we conclude our work, but early results appear the remaining states. Finally, the Identification that the FBI be prepared to accommodate nation­ promising. We hope that the test will prove that the wide participation. Division does no~ have computer network capabilities Notes " III is a feasible, practical, effective, and efficient that. would allow fast turnaround on requests for 1. 1-Ve also address the exchange of criminal history method of federal, state, and Jocal exchange of crimi­ ~Vc further recognize that in the past critics have criminal history information, whereas the preexisting inhl'mation in Phase I Recommendation 4. nal history information. In that event, we would questioned whether the federal government has a NCIC lines were used for the CCH system. recommend that the Attorney General direct the FBI legitimate role in the exchange of state and local 2. 1-Ve also address the backlog of Jingerprint and However understandable the past and current to begin iminediate development of the index and criminal history information. ~:ve believe that the name check requests in Phase I Recommendation 9. duplication may be, many critics have charged that seek funding to ensure that adequate computer sup­ federal government, because it has a criminal justice 3. United States General Accounting Office, TIle FBI the FBI has no current pla.ns, or that its existing port and staff are available to develop and support the system apart from the states and beca;'lse of existinO' operates two oO?nputerized oriminal histo'l'1.J infor­ . b plans are out of date, for merging the activities of index for the federal government) all 50 states, the fu1gerprmt records and NCIC telecommunication mation systems (\Vashington: U.S. Government CCH (or the proposed III) with those of the District of Columbia, and appropriate areas of lines resident in the FBI, is inlL unique position to Printing Office, 1979) . IdentiJication Division. ~V e recommend that new federal jurisdiction outside of the United States. assist the states in this vital area of criminal justice plans be developed to take into account the results information exchange. We doubt that such an index of the eight-state III test. We dv Hot feel it appro­ would be developed without :F.ederal stewardship. priate to recommend specific details for such a long­ range plan in view of the ongoing III prototype test, the results of which may influence the direction such a plan should take.

68 Federalism in Oriminal JU8tioe

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-~--.----- .. ----~--- r: ! 1 ! statistics program that we believe is necessary I cost of informv_tion systems is great. By com­ Justice statistics to provide data for informed policy decisions parison, when LEAA was funding such systems and program development at all levels of I1 development, it was spending in the neighborhood Disaster assistance government and for continuous indicators of Ie of $40 million each year, with matching require­ the state of the nation with regard to crime. 1 • ments that are not mandated by Part 0 of the Act, Recommendation 51 Although the Act authorizes $25 million although pro\'ision is made to allow for such Recommendation 52 The Attorney General should ensure that adequate for statistical activities, and the Administration has I: match. resources are available for the collection and requested amounts close to that for the past 2 fiscal I; vVe make this recommendation precisely because The Attorney General should support. or propose analysis of statistics on crime, its victims, its years, Oongress has approved amounts far below I ! • information systems are so costly that they are legislation to aUow direct financial assistance to perpetrators, and all parts of the justice system at what is required to maintain the ongoing statistical I' supplement the resources and efforts of state ·and J; beyond the resources of state and local governments all levels of government and for the dissemination programs, let alone allow the development of in this time of budgetary constraints. We believe local governments that have demonstrated that of these statist.ics to policymakers in the Depart­ statistics in the areas we noted above as deficient. In it appropriate for the federal go\'errunent to they are suffering a criminal justice disaster or ment of Justice; other agencies of federal, state, fiscal 1981 Congress initially held the statistical fund such systems not only for this reason but also emergency of such unusual nature and proportion and local goyernment; the Oongress; and the program to $7.5 million, increased this to $12.3 because they produce the statistics that can be that their own resources fall short of addressing general public. million through supplemental action:, and appears aggregated to provide the national data we believe the need, and he should request adequate funds to likely to hold the 1982 appropriation to $15 million. are necessary. The informa.tion needs of all levels support such assistance. In this regard, we urge the Attorney General to give of government would be supported by making Commentary serious consideration to enhancing the budget the production of a small core of standardized in­ Commentary In making this recommendation, we join wit.h every requests for statistics in the future and to oppose formation for national purposes a condition of major crime commission since ·Wickersham in 1931 1 strongly any attempts on the part of Oongress to the award, ,vhile allowing the recinients to tailor Some criminal justice disasters and emergencies, in drawing attention to the need for objective, make cuts in the appropriation similar to those that the remainder of the information system to man-made and natural, are of such magnitude and reliable, a.nd accurate statistics on crime, its victims, have occurred in the past 2 years. their own particular requirements. severity that they overwhelm available state and its perpetrators, and the activities of the criminal local resources. Examples of such situations are the On a related issue we note that one provision of Notes justice system itselI. ,Ve were more fortunate Pa.rt 0 of the JSIA has never been funded, and child murders in Atlanta, Georgia, and Oakland than our predecessors in that a larger body of that is in the area of financiq,l assistance to state and 1. Officially known as the U.S. National Oommission Oounty, Michigan; political conventions that strain adequate statistics was available to inform and guide local governments for the development of on Law Obsen'ance and Enforcement. local law enforcement security and crowd control us in our deliberations than heretofore was the case. criminal justice information systems. The Act 2. For example, prisoner statistics were first gath­ resources; and natural disasters such as floods, ,Ve did find, however, many areas where reliable authorizes the Bureau of Justice Statistics to- ered in the decennial census of 1850 and justice earthquakes, and volcanic erupt-ions that create information was simply not available indicating expenditure data in Hl02; the Uniform Orime potential for or result in looting andla,vlessness ... support the development of information and that increased attention must be devoted to the Reports were begun in 1931. while disabling state and local criminal justice statistical systems at Federal, State, and local development of methodologies to collect such data, operations. levels to improve the efforts of these levels of 3. The NationaJ Oriminal Justice Information and particularly in the a.reas of the judiciary (including government to measure and understand the levels Statistics Service of the Law Enforcement. Assist­ EmerO'enc'T or disaster sihlll.tions which exceed the the courts, prosecution, and public defense), juvenile b .) of crime (including crimes against the elderly, ance Administration. crime and juvenile career criminals, drug use and ability of states and localities to combat crime suc­ white-collar crime, and public corruption), its effect on crime, persons on probation, and more cessfully can also develop as a result of such influ­ juvenile delinquency, and the operation of the ences as the establishment. of certain federal policies detailed information about the federal justice criminal justice system and related aspects of system. or merely the geographic proximity of a jurisdiction the civil justice system. to the source of a serious crime problem. These data gaps exist, in part, due to the recentness The legislative history surrounding passage of the During our meetings in Miami, we learned of the of the federal govelnment's involvement in the Act made it clear that grants for such purposes many pressures created for that city and the entire collection of justice statistics. ·While some current were to be made by the Law Enforcement Assistance state of Flor'ida by federal immigration policies statistical programs have their roots in efforts cl!i,ting Administration (LEAA), not the Bureau of which enabled tens of thousands of Cuban ·and back decades,2 it was only 12 years ago that the Justice Statistics. With the demise of IJEAA,!lInd Haitian citizens to enter the United States in a federal government first attempted to establish, on a consistent with our recommendation that funds short period of time during 1980. Testimony pre­ limited basis, a single office for justice statistics should he provided for programs of proven effective­ sented to us indicated that federal policy failed to within the Department of Justice 8 and only 2 years ness, we believe that aclditional resources should ago that statutory authorization for a Bureau of distinguish between criminal aliens and those who ·b3 made available to BJS to fund the design and Justice Statistics (BJS) ,vas enacted in Part C of 1egitimately sought political asylum in the United development of state and local statistical infor­ the Justice System Improvement Act (JSIA). That St-ates. Significantly, violent crime in met.ropolitan mation systems. This will require a legislative Act, through very specific language, mandates Miami rose 18.5 percent in 1980, rapes increased 36 . a.menclment to increase. the authorized level of the development of the comprehensive justice percent, and murders rose 89 percent. Ouban entrants funrli.ng because the currently authorized $25 from Mariel comprise 13 percent of the Dade Oounty million is absorbed for statistical activities and the jail population; the majority of these individuals have been charged with serious felonies.

'10 Federalism in Oriminal Justice Federalism in. 01>1,minal J1lstice '11 ------"" ------r

We also heard that, due to Florida's location and With the demise of LEAA, the federal government geography, the state has become a nexus for inter­ no longer has available to it a source of funding that I programs that could be replicated at reasonable national drug trade operations. Florida officials can be used to assist state and local governments Federal funding for the xoesearch cost across the country. Further research can linked sharp statewide increases in homicide rates in meeting criminal justice emergencies such as demonstration, evaluation, and ' result in blind alleys; not all resea;ch should be along with those of rape, robbery, aggravated those mentioned above. ,Ve believe that, when implementation of innovative programs expected to result invariably in new and innovative assault, and burglary to heavy drug trafficking conditions warrant, the federal government must It pr?grams of demonstrated success. It is precisely activity. Governor Graham explained that due to provide such assistance to state and local law I tIns aspect of the research and development process " ... a I,OOO-mile peaceful coastline and extensive enforcement to ensure that criminal justice services I that makes it too costly to be undertaken to any I areas of isolated interior, Florida has gained the are maintained and law and order are preserved. Recommendation 53 great extent by single states or local jurisdictions. 1 To this end, we recommend that the Attorney I reputation as a Mecca for drug traffickers." ,Ve are in unanimous agreement that the federal General seek legislation that would specifically The Attorney General should ensure that: ! government has a unique responsibility to conduct The federal government is not specifically author­ authorize the Department of Justice to provide· a. Adequate resources are available for the research , I, resea~'ch on criminal justice issues, to develop ized to assist state and local governments such assistance and that adequate funds be made development, demonstration, and independent creatIve programs based on research findings, to experiencing such emergencies. During the available for such purposes. evaluation of methods to prevent and reduce past 12 years, the Law Enforcement Assistance serious crime; for disseminating these findings to test and evaluate these programs rigorously, and Administration (LEAA) and its sister agencies have Circumstances in emergencies differ in degree federal, state, and local justice arencies; and for to demonstrate them in several jurisdictions with provided a wide variety of emergency or disaster and kind. It is not our intention to engage the implementing these programs of proven effective­ varying characteristics to be sure that the programs assistance-such as technical assistance, discretionary federal government in providing assistance to ness at the state and local level. ,~ould be successful if implemented in other jurisdic­ every city that is experiencing a high crime ratp, I tions. At present, research directly applicable to grant awards, or the reprogramming of previously I h. Grant awards for implementing such demon­ awarded state funds-to state and local governments continuing difficult problems, or losses from a I the problems of state and local criminal justice strated programs require a reasonable match of through general statutory authorization. Assistance hurricane or tornado. ,Ve do feel, however, that systems is performed by the N 2~tional Institute of crisis situations can develop that are so extreme I state or local funds and be limited to a reasonable Justice (NIJ) , the National Institute of Corrections was provided in response to specific, identified time period. and unique in nature that they threaten a breakdown ·1 (NIC) , and the National Institute of Juvenile needs in emergency situations "here the provision I' of assistance could meet the requirements of the of local criminal justice facilities and resources Justice and Delinquency Preventjon (NIJJDP). LEAA statute. and are beyond the local ability to respond NI.J and NIC do not have the funds needed to Commentary adequately. support the substantial testing, demonstration and Major LEAA emergency or disaster assistance was One major mandate in Phase IT of our work was independent evaluation that we believe are nece;sary. provided to Miami, Detroit, Kansas City, and We recommend that assistance be provided to help I to recommend to the Attorney General changes in The Attorney General should ensure that adequate New York to plan for and support security activities communities deal with serious criminal justice funding levels t.hrough which the federal funds are available for these agencies to bring at major national political conventions. Other problems that surface in the aftermath of such ! government could assist in the coordinated federal, research ideas to the stage at which they become assistance was provided to help law enforcement crises as prison riots, severe natural disasters, ! state, and local fight against violent crime. This demonstrated, independently evaluated proO'rams agencies contend with the aftermath of natural and unique crime problems (like the child murders I I inevitably raised the question of how the federal that can be implemented in state and local '" disasters such as the Mount Saint Helens volcano in Atlanta), to prepare for potential crises such \ ' government can contribute most constructively jurisdictions. . eruption; the New York blackout; floods in Colorado as those that can occur at national political r ! to helping state and local governments improve the and Idaho; and Hurricanes Agnes and Frederick. conventions or other anticipated emergencies, and I. Most of us also believe that federal funds should LEAA assistance also was delivered follow·ing to assist those states and localities which, as a operation of their criminal justice agencies. In this be made available to state and local governments to regard, we have considered both tlle federal prison riots in Florida, New Mexico, and Illinois. consequence of geography or federal policy, carry implement those programs that have been demon­ !: government's role as developer of innovative wavs In addition, LEAA funds along with the funds the burden of a national problem that is beyond I! strated and proven to be effective throuO'h riO'orous ! to combat criminal justice problems and its role as . d '" b from the Office of Juvenile Justice and Delinquency their ability to combat alone. It is in these kinds i! m ependent evaluation. These funds should be provider of the resources necessary to undertake Prevention were sent to Atlanta to help automate of situations that ·federal aid may be needed and is, awarded for the purpose of enabling a jurisdiction !: such new approaches. criminal investigative infurmation as well as to we believe, justifiable. There are a number of ways t? establish demonstrated programs but should con­ develop and implement juvenile programs aimed in which this form of assistance can be delivered. \' Many programs that have made a constructive tmue to support the program implementation at helping Atlanta youths deal with the trauma ,Ve do not presume the role of determining the contribution to state and local criminal justice process for only a reasonably limited period of created by child murders in the city. best method to follow but leave this decision to activities had their roots in basic research conducted time. Before any grants of this kind are made, we the Attorney General and his staff. or sponsored by the federal government. The suggest that the receiving jurisdiction demonstrate Career Criminal Program and the Prosecutors its commitment to continuing the program after Note Management Information System (PROMIS) are the federal funding period has ended. The juris­ 1. Testimony presented to the Task Force by but two examples of these. The research that diction also should provide a reasonable amount Governor Bob Graham of Florida, July 22, 1981. spawned these programs is essentially beyond the of funds to match those granted by the federal resources of state and local government. Even if ·government. a locality could find such resources, it is inequitable for one city or state to spend the seed money to develop, test, and evaluate new and innovative

7~ Federalism in Oriminal J'U8tice Federalism in 01'i7ninal Justice 73 -~--- A'4 .,. -----

fI In making this "ecommendation, we do not wish to 'l'hird, we believe that programs of "proven effec­ Those who SUppOlt financial assistance for imple­ tie the hands of the Attorney General by prescribing tiveness" must be determined by careful independent mentation belieye it is a necessary and appropriate a specific means or method for proyiding funds. Assisting state and local corrections evaluation. ",Ye heard much anecdot.al edclence on federal role. Some view assistance in this area to be However, as noted elsewhere in this report, we do what programs have been effective. ",Ye have heard equal to or more important than federal funding I not beIieye the public is well sen'ed by haying a LEAA grant recipients tell us how much more in other human services areas which continues separate bureaucracy to service and artificially effective their organizations have become because of­ Recommendation 54 today. Others believe that American citizens who separate juvenile crime funding from all other see billions of dollars sent to fighting enemies in these programs, but they frequently presented no ~Ii funding. The Attol'!ley General should seek legislation other lands ha ve eyery right to see substantial federal empirical evidence to support these claims. How the calling for $2 billion oyer -! years to be made sums used for fighting crime-an internal enemy. effectiveness of specific innovative programs is ! aYailable to the states for construction of correc­ Still others believe that prior federal programs had determined is the critical element in determining tional facilities. Criteria for a state's obtaining developed many successful projects that could be whether implementation funding should be made federal assistance under this program include used to reduce crime at the local level and were available. If there is no independent, credible way (1) demonstration of need for the construction; concerned that without federal assistance many to enluate successful programs then there is no way (2) contrlbution of 25 percent of the oyerall cost of these innovative efforts would not be imple­ to ensure that the taxpayers' funds are well spent. of the construction: and (3) assurance of the mented and would be lost. Any funding program that ignores this element aYailability of operational funds upon completion Those who oppose direct funding for the imple­ should be rejected. of construction. Funds should be allocated by a mentation of effective programs questioned whether ",Yhat m~ do suggest here, however, is that there a.re formula which measures a state~s need for prison the federal government should pay for programs some programs that LEAA supported and deyelQped construction relath'e to all states.l when state legislatures could appropriate such which have had a direct effect on se,rious crime. sums if they gave the effort a high priority; they ",Vhere these programs haye been identified by Recommendation 55 also feared that the recommendation could lead independent e\'alnation, they should be institr.ted in Within 6 months. the Xational Institute of to the creation of another LEAA. those jurisdictions where the need is greatest and Corrections (SIC). which would administer the federal funds should be made available to l'stablish It was in response to these concerns that we chose program described in Recommendation 54, would to build into our financial assistance recommenda­ them. 'Vc also belic\'(\ that where fut1ll'e research and cleyelop models for maximum, medium, and tion clear requirements on the kind of commit- development actiyities create programs responding minimum security facilities of 750 and 500 (or ment states and localities must make to receive to serious erime. federal implementation funds fewer) beds, from which states would choose the federal dollars and on the purposes for which these should 00 available. It is for purposes of imple­ appropriate model (s) for construction. In mentation alone that we make this recommendation funds can be used. addition~ oyer the 4-year period, NIC would for direct financial assistance. ",Ve are strongly complete studies pertaining to the possible estab­ First, we belieye that states and localities should opposed to using federa.l funds to maintain state lishment of regional prisons, the feasibility of be drawn into partnership with the federal gov­ and local law enforcement operations. ",Ve have no priYate sector im'oh-ement in prison management, ernment to support these selected programs and desire to see federal funds used for ordinary and the funding needs of local jails. The Attorney initiatives. We have attempted to ensure that this operating expenses such as manpower and equipment. General shouldreYiew NIC's findings and other commitment will be made by proposing that a These functions fall strictly within the domain of releyant information to determine the need for reasonable match of state or local funds be re­ state and local governments and should be financially additional funding upon completion of the 4-year quired. We also recommend limiting the assisted by the national goyernment only in those assistance program.l federal funding peri.od to a reasonable amount of kinds of situations which ,,'e discuss elsewhere in this time. ",Ve do not want to see developed a heavy report. These jurisdictions know best ,,,here needs Recommendation 56 reliance on the national government for financial exist and should shoulder operational burdens support-a reliance which some members felt was themselves. ",Ve are convinced, however, that limited The Attol'lley General should snpport or propose created 'by programs like LEAA. Fina.lly, we federal support should 00 delivered for imple­ legislation to' amend the Federa.l Property and believe financial assistance should be given to mentation of innoyative programs that have been I Administrative Services Act of 1D-!D to (1) permit those jurisdictions that can demonstrate that they tested and proven effective by the X ational Institute the conveyance or lease at no cost of a ppropria te will make every effort to assume financial respon­ of Justice or other groups. surplus federal property to state and local gO\'Cl'n­ sibility for the federally supported program when I ments for correctional pnrposes and (2) ensnre the funding period has expired. 'Vith limited ,funding, directed toward supporting snch cOllYeyances or leases be gh'en priorit.y o\,er only those programs of demonstrated value, we requests for the same property for other purposes. l Second, we have serious reservations about any believe the federal government can work with states attempt to re-create an LEAA program. That and localities in an appropriate forl11 to reduce and I program was heavily laden with bureaucratic rules, preyent serious crime in an effective and efficient ,~ regulat.ions, and organizations. It was too expensive, v, manner. !I it was too difl1cult to control, and it scattered funds thinly over a wide variety of initiatives. ~ i{ , J.'f·i 1! Fedemlism, in Oriminal J~lstice 75 74- Federalism in Oriminal Justioe , ~ ... _~ .. ,I I ..-,' I', Ii! d

7 I .... ------~--~ --- -

It therefore becomes particularly important to Another outcome of resource li:mitations is that the Recommendation 57 a substantial number of defendants who should ensure that any decision to build be one that federal government cannot effectively meet the be incarcemted might receive probation inste!td The Attorney General should support or propose carefully considers the makeup of the inmate construction needs of both states and local govern­ simply because the judges are aware that there population and the security requirements of the ments. There are simply not enough dollars to go legislation to amend the Vocational Educlttion Act is currently no space available for them in prison. Itnd other a pplicltble statutes to facilitate state and correctional system. It has heen suggested by around. Consequently, we have determined that Such action may then have the unintended national corrections leaders, for I3xample, that available monies should be given to the states, as we local correctionltl agencies' ability to gain access consequence of endangering the community. to existing funds for the establishment of voca­ perhaps only 15 to 20 percent of inmates in state perceive them to exhibit the greatest need. In Clearly, judges must feel free to use incarceration prisons require costly, maximum security addition, with the creation of new state facHities, tioilltl and educational programs within correc­ as a sentencing option; it therefore becomes tional institutions. institutions, though 70 percent of the facilities some of the overcrowding at the local level will be imperative to better understand the range of issues fall into the high security category. A rational alleviated. ,Vo do believe, however, that the needs or related to overcrowding and carefully assess cla~sification system to decide what type of local correctional agencies should continue to be proposed means of coping with this problem. Commentary confinement is necessary for a given prisoner is of examined so that the appropriate public officials can In our Phase I Recommendation 3, we critical importance in freeing up maximum security continue to make the most appropriate use of The problem of available space in state prisons to acknowledged the current overpopulation problem space and containing costs. resources in this area. keep dangerous criminals off the street is one of the in corrections, and now must consider the extent 6 most impol'tant violent crime issues in the nation. Di1'eot jedentl a88i8tanoe /0'1' p'l'i80n oonst'l'llotion. In consideration of the policy decisions describ~d to which the federal government can provide Almost aU stlttes are in a crisis situation. As has been Given the fact that 43 percent of prisoners are being .above, and in order to be responsive to the immediate assistance in alleviating crowding. The overriding continuously documented in public testimony and housed in facilitil's built before 1925, 70 percent of needs of correctional agencies, it is important that concern remains the safety of the community, reports, many states are experiencing Itlarming rates prison cells fall short of federal standards for square any federal sU'pport program be carried out in a which is secured by ensuring that those offenders. of violent crime. The higher crime rate has produced footage, and over one-half of the state correctional manner that is both equitable and expeditious. Thus, i.e., serious, violent offenders, who need to be It higher prosecution and conviction mte, which, systems have one or more institutions declared to be we believe it would not be desirable to require states incapacitated are incarcerated. combined with the public's demand (frequently via unconstitutional by federal courts, we are of the to develop long-range comprehensive plans which statute) for harsher, longer sentences for the perpe­ More than two-thirds of the states have propose(l opinion that. assistance leading to the replacement or are updated annually or establish a cumbersome trators of these crimes, has resnl ted in correctional to build or have under construction at least one renovation of outmoded or substandard correctional review process requiring a separate administration systems facing unprecedented increases in popula­ major correctional facility. Some states have facilities is essential. In fact, the Criminal Justice within the Department of Justice. Such requirements tions, which they n,re not prepared to accommodate. found the process so costly that they cannot Committee of the National Governors' Association might significantly hamper states and local juris­ One state correctional administrator recently complete t.heir efforts or have vacant facilities has called federal assistance for capital construction dictions in their efforts to improve correctional (!ommented that based on that state's current incar­ because they cannot afford staffing and operation the number-one criminal justice priority. We agree. programs and practices, alleviate stress on their cemtion rate, one 400-bed prison per month could be Between July 1979 and July 1980, 23 new Clearly, a federal role in this area is necessary; corrections systems, or comply with judicial decrees. and, in light of the enormity of such an undertaking, filled. The crisis for many metropolitan jails is of institutions were opened by state correctional Federal requirements should not. operate so that they we have given special consideration to a number of similar proportion, with one sheriff testifying before systems, at a cost of over $100 million. Fifty have the unintended effect of keeping jurisdictions issues. his state lep:islatnre that he has 300 inmates sleeping million additional dollars were spent on additions from responding to their own needs; and federal on the floor of the county jail. to existing buildings. These expenditures resulted The provision of assistance in building or renovating dollars need not be so great that jurisdictions merely 4 Bet.ween 1978 and 1981, the number of state in 7,100 new bedspaces. correctional facilities need not necessarily mean that apply without considering the extent of their actual prisoners increased from 268,189 to 329,122, The cost of building a maximum security facility the total capacity or institutions be increased; but problem. Thus, the application process should not according to the Bureau of Justice Statistics. Thus, is over $70,000 per bed in many jurisdictions as rather that there be the most appropriate use of be so complicated that states arc reluctant to take state systems have over the past few years had diverse as California, Minnesota, or Rhode Island. available space. Even if more violent or serious ad,'antage of the assistance, but neither shoulrl there to accommodate an increase of 60,000 beds. With Alaska reported a staggering $130,000 :for the offenders are confined, the number of high security be no strings attached, thereby condoning possible 39 states involved in ]jtigation or under court average cost of prison construction per cell. bedspaces need not necessarily rise, as offenders in inadequately designed facilities both in terms of order relating to conditions of confinement in state Medium security institutional costs are considerably need of a less secure environment could be moved inmate and staff needs and the needs of the commu­ prisons, jails were forced to take 6,000 state lower, high l'stimates being around $50,000 per bed, from maximum to medium security facilities. "With nity. Thererore, for purposes OT demonstrating this prisoners in 1980 as a means of easing overcrowding.2 with several states estimating a range below resource limitations at all levels of government, any balance and a commitment to accepted standards of However, they too are crowded and face lawsuits $30,000. Minimum security housing may be even federal grant program should be confined to those correctional planning and practice, we recommend similar to those filed by inmates in state less. New jail construction similarly is costing criminal justice areas exhibiting greatest need. If the federal contribution to the proposed construction institutions. In response to this crisis, by July $50,000 per cell in metropolitan areas. Expenditures this means construction and renovation of detention effort be limited to 75 percent of that effort. In 1980, state correctional agencies had begun new for yearly operating costs are generally cited as and corrections facilities, the focus should be on those addition, we bl'lie,'e that the federal support. construction of more than 60 institutions or hl'ing between $10.000 and $20,000 per cell.a for the most serious offenders, in maximum security program should be limited in time and level of additions at a projected cost in excess of $700 Precise estimates are not really feasible without facilities, which are typically the oldest and most in eXJ?enditure; there is no need to create a long-tenn million.s addressing the particular facility's locale and need of replacement or repair. However, in order federal operation with states receiving grants for a purpose. "Whatever the figures, it is clear that the not to penalize states which have already appropri­ number of years. ,Ve deem 8.n initial4-year authori­ The problem of overcrowding goes beyond ated funds for maximum security space but do not zation and appropriation to be sufficient. Given corrections. It leads to a circUlhvention of the financial burden on the states and. counties to have sufficient less restrictive space for nonserious differing needs and costs in the various states, we overall public and criminal justice system's intent renovate or construct correctional institutions is I offenders, federal dollars could be used for these believe that the immediate objectives of the con­ to deal with the violent offender in a manner extraordinary. building/renovation efforts as well, though priority struction program can be met with a $2 billion consistent with the gravity of the offense. Thu,s, would be given t.o the needs related to serious appropriation. I offenders.

76 Federalism in Oriminal Justioe I· I Federalism in Oriminal Jmtioe 77 ~I •.. ••.. _ __ . -- ---. _- -. c-.,·-·--•. )" 7C"~_"1:L;:;·~·:;'";-" .,,- -;.-- -- -::------;:k,- .~'. ~ ~ ,~~,,~.- --~- -~ ------

[I Monies for construction should be allocated on a to capacity and beyond. However, it cannot formula basis relating to t-he general population, be predicted with certainty at this time what the Despite these potential problems, we believe that T' ocational education and training. In addition to the concept is deserving of further examination. violent offender popUlation, and corrections expentli­ future overflow needs are of a sufficient number of considering overcrowding vis-a--ds the inmates' ~ Thus as with the regional prison concept, while we tllres of the state, -with demonstrated need being a states to mo,'e ah('ad with a ]'('gional building i physical environment, we recognize, as the Chief are n~t making a formal recommendation pertaining prerequisite for funding. Included in the total progl'Hm. Thus, while we do not 110W recolllmend Justice has suggested, that 'lith the emphasis on to the private sector's operating secure penal appropriation would be ac1ministrnti\'e costs and a building fedel'Hl r('gional institutions for state incarcerating more violent offenders, perhaps for facilities, we do endorse continued research in this modest technical assistancl' effort. The National nnd locnl prison('rs, ,,'() belie,'e it would nonetheless I longer periods of time, there is a responsibility to area. Institute of Corrections (.NTC) would also de\'elop be useful to further examine t.he issue, such provide practical experiences for inmates that will models for correctional facilities from which states (',xnmination to include an assessment of states' Use of surplus federal propel'ty. In addition to result in their being productive both while inear­ would select the one (s) best suited to their respecti\'e needs and interests, a study of the legal implications direct financial assistance, there exists another cerated and upon leadng the institution and return­ needs. for goyernmcnts at all leyels, and an in-depth significant opportunity for federal involvement in ing to society. ,Yhile a large expansion of ,'ocational and educational training for inmates could prove ,Yith the adoption of any federal effort to provide evaluation of potential illlpl<>mentation and long­ easing state and local correctional facility over­ quite expensiYe, it is possible, through legislative massive infusion of dollars) with as few strings term operational problems. crowding. Section 203k (1) of the Federal Property amendment, to make available substantial resources attached as possible, we belie\'e it would be useful and Administrative Services Act of 1949, as Another proposal that we considered was the for this purpose. Seventy programs haye been identi­ and in the best interest of federal and state go\'ern­ amended, provides for conveyances of property involvement of the private sector in the management fied within the Department of Edu...cation (If: ha"ing ments to offer a technical assistance program along and buildings by the General Services Administra­ of prisons. Private contractors have been heavily funds which could be used by correctional agencies. with money for actual construction and related tion (GSA) to states and local jurisdictions at up involved in cor-rections over the past decade in These programs (mostly coming liBder legislation on acti\'ities. Thus, technical assistance. on the request to a 100-percent discount or with no monetary areas such as provision of dil'ect program and health vocational education, adult 2dncation, and education of correctional agencies, would be a ,'ailable throllgh consideration where such properties are to be used services, development of prison industry and for handicapped persons) offer grant monies to Local NIC in the areas of inmate classification, planiling community work projects, and the operation of as educational or medical facilities, public parks, for development and operation of new institutions, historical monuments, wildlife refuges, 01' public Education Agencies (LEAs) through the State community-based programs such as halfway houses, Education Agencies (SEAs). Some correctional architectural design considerations. and operation pre-release centers, and drug treatment facilities. airports. The criteria for determining whether a agencies have been able to obtain Fome of these funds, and staffing costs. However, the private sector has not been inyolved proposed utilization qualifies, for example as an educational facility, are established by the Depart­ where states have agreed to dnsslfy them as educa­ Another suggestion we considered for federal assist­ in the management of medium ot' maximum security tional agencies. However, the various pieces of penal institutions. ment of Education; and, in this regard, a model ance was that funds be appropriated for the detention facility has been able to qualify where legislation are vague as to the means by whieh cor­ Federal Prison System (FPS) to construct anel A variety of concerns hayc been raised flS to the educational rehabilitation was deemed the pre­ rectional institutions can access monies, and programs operate regional (multipurpose or specialized) cor­ feasibility of such an endeavor. Some of the questions dominant purpose of the institution. therefore tend to be uncoordinated and fragmented. rectional centers, with serdces available to state and include- local inmates, the costs of such services being borne We recommend an amendment to the Act, The Department of Educaticm and the Department • ,Vhether the responsibility, and concomitant permitting a similar arrangement to enable the of Justice have been working on strategies to assist by the respecti\'e state; and local authorities. Con­ liabilities, for providing a seClll'e and safe enyiron­ cei\'ably at some future time, a facility could be Administrator of GSA to make property available corrections in obtaining monies for educational and ment for violent offenders can be properly delegated vocational programs. lYe believe these effort::: should transferred to one 01' more states 01' localities at no to the states at no cost for correctional purposes, from the public to the prh'ate sector. cost if certain requirements were met. Historically, with criteria for transfer being developed by the be enhanced and that the appropriate statutes be the Bureau of Prisons (BOP) has made space • How the cUl'rying out of statutory and judicial Department of Justice, consistent with the intent amended to f:pnci.fically designate correctional agen­ available to states for specia 1 offenders ,,,ho could intentions can be assured. expressed in Phase I Recommendation 3 that surplus cies as qualifying recipients of funds for cdncating not be accommodated by state systems (e.g., 350 • 'Whether it would be cost-effective to have to property used for correctional purposes provide inmates. Some guidelines might b~ inc1Uiled ('alling, inmates from N"ew :Mexico ,,'ere transferred to develop a new, highly trained caclre of individuals safe humane environments for those living and as an example, for states to require certifieation of feeleral institutions following the riots in 1980) . who understand management in a prison setting. working in those facilities. cQrrectional education staff, thus encouraging a higher level of available training. Under a regional concept, a facility could be built • How public employee unions and employment In addition to amending the Act to permit these to house violent, severely mentally ill 01' retarded, generally would be affected. no-cost conveyances, due to the immediacy of the or otherwise difficult. serious offenders. The location need for adequate bedspace for corrections, we In addition to these and other concerns, the ex­ of such an institutio~ would depend on the le,'el of believe that Congress should give requests for such perience of using the private s('ctor in running interest and need expressed b~' states in \'arious use of surplus property priority over other requests community-based programs lea yes some cost regions of the country. for the same property. Also, in recognition of the questions unanswered, at least in terms of potential fact that some jurisdictions would prefer to lease, One problem in developing l'ef!ional prisons, cost-benefit r'elative to secure residential facilities. rather than have permanent ownership of new howeYer, im'olycs housing of hllnates in distant It is not clear that the conventional wisdom is correct locations on a more or less permanent basis, thereby property, provisions should be made in the Act to that prh'ate sector management of correctional permit such conveyance arrangements. l'estricting yisitntion by family 01' friends. A facilities would be less expensive than public sector reluted concel'll is that of limiting access to counsel management; we belieye this requires further study. due to the institution being placed in another state. It is clear that the numbers of violent offenders being incarcerated is increasing and that state and local correctional institutions are filled

78 Federalism in Oriminal J~lsUce

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._ ..~ .. ~ .." _.. ---.--~. ---"".~-.-.-~-,-~-~ .. - . r \ Notes Chapter 4 1. We also address the easing of overcrowding in state and local correctional facilities in Phase I i Recommendation 3. 2. U.S. Department of Justice, Bureau of Justice Statistics, Pri8oner8 in 1980 (Washington: Government Printing Office, 1981). Juvenile Crime 3. Hicks, The correction8 yearbook (New York: Criminal Justice Institute, Inc., 1981). 4. Ibid. 5. Ibid.; National Institute of Corrections National Information Survey, March 1981; and Institute for Economic and Policy Studies (Alexandria, Va., In 1979, juveniles (up to 18 years of age) accounted 1981). for about 20 percent of all violent crime arrests, 6. The term "construction" includes the preparation 44 percent of all serious property crime arrests, and of drawings and specifications for correctional 39 percent of overall serious crime arrests. Youthful facilities; erecting, building, acquiring, altering, offenders (juveniles and those age 18-20) accounted remodeling, improving, or extending such facilities; for 38 percent of all \"iolent crime arrests, 62 percent and the inspection and supervision of the con­ of all serious property arrests, and 57 percent of struction of such facilities. all serious crime arrests.1 Only 3 to 15 percent of all delinquent acts result in a police contact.2 In followup research to It study of 10,000 males born in Phila­ delphia in 19·15, a representath'e sample of the group admitted having committed from 8 to 11 serious crimes for each time they were arrested.s Nationwide surveys of self-reported delinquency show that males age 12 to 18 commit each year: 3.3 million aggravated assaults; 15 million individual participations in gang fights; 4.4 million strikings of teachers; 2.5 million grand thefts; and 6.1 million breakings and enterings.4 Juveniles and youthful offenders not only account for the commission of disproportionate amounts of violeI:t and other serious crime, they also are disproportionately the victims of such crime, usually at the hands of other juveniles. Much of these higher victimization rates, however, are accounted for by assaults-not the type of stranger-to-stranger fi violent street crime 5 that most concerns the rI' American public. [ The risk of violence to teenage youngsters is greater I in school than elsewhere. Approximately 68 i percent of the robberies and 50 percent of the assaults on youtl~ age 12-15 oceUl' at school. 1 An estimated 282,000 students ure attacked at school in a typical I-month period; ail estimated 5,200 teachers are physically attacked at school I each month.6

80 Federiilism in Oriminal Justice Juvenile Orime 81

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Notes In this regard, we urge the Attorney General to 1. U.S. Department of Justice, Federal Bureau of Juvenile fingerprints encourage states to take appropriate steps to make Investigation, Orime in the United States 1979 these criminal histories available. Federal, jurisdiction over juveniles (Washington: U.S. Government Printing Office, 1980) . A related matter involves the policy of the Federal 2. Joseph G. 1Veiss and John Sederstrom, The Recommendation 58 Bureau of Investigation (FBI) not to accept finger­ prevention of serious delinquenoy: What to OJo.@ prints of juyeniles-a policy that poses an obstacle Recommendation 59 The Attorney General should direct, and if (Seattle: U ni versity of Washington, 1981), draft to effective apprehension and prosecution of many The Attorney General should support or propose necessary seek additional resources for, the report, p. 37. of these individuals. While enlarging the FBI legislation to amend Section 5032 of the Juvenile Federal Bureau of Investigation to accept finger­ data base may require additional staff or dollar 3. Marvin E.1Volfgang, "From boy to man-from Justice and Delinquency Prevention Act to give print and criminal history information of juve­ resources, the cost savings to the criminal justice delinquency to crime," in The seriou8 juvenile original jurisdiction to the federal government niles convicted of serious crimes in state courts system by having access to criminal history i~for­ offende1': Prooeedings of a national symposium over a juvenile who commits a federal offense.1 and should support or propose legislation to mation of juvenile offenders convicted of serIOUS (1Vashington: U.S. Government Printing Office, amend Section 5038 of the Juvenile Justice and offenses could be enormous. Thus, where state 1978), p.171. Delinquency Prevention Act to provide for statute or policy does not preclude sending such Commentary 4. Weiss, p. 39. fingerprinting and photographing of all juveniles information to the FBI, \ye belieye the FBI should 5. U.S. Department of Justice, Bureau of Justice convicted of serious crimes in federal courts. accept it. Further, Section 5038 the . Currentlv Section 5032 of the Juvenile Justice and o~ Juvenil~ J' 'd Statistics, 01iminal viotimization in the United Justice Delinquency and PreventIOn Act prolublts Delinquency Prevention Act, as amended, prOVI es States, 1978 (Washington: U.S. Government fingerprints or photographs of jmeniles (not that if a juvenile commits a crime against the laws Printing Office, 1980). Commentary prosecuted as adults) alleged.to have viola~ed federal of the United States: he is surrendered to state authorities for prosecution unless the state does not 6. National Institute of Education, Violent soh'Jols­ Current statutory restrictions in the procedures law without the consent of a Judge. 1Ve beheve have, or refuses, jurisdiction or it does not have safe sohools: The safe sohoolstudy report to the pertaining to adult court use of juvenile records may thi; section should be amended to permit finger­ appropriate programs for'the youth. If the ~uve~le Oong1'ess (1Vashington: U.S. Department of Edu­ unnecessarily limit the ability of the court to prints and photographs where there is a conviction is not surrendered, he may be proceeded agamst m cation, 1978), vol. I, pp. 2-3. provide appropriate sentences or set bail for juve­ for a serious crime. U.S. District Court according to special provisions niles tried as adults or for adults with juvenile Note for handling juvenile cases, unless he chooses to be criminal histories. Thus, an adult offender having 1. The availability of more extensive criminal prosecuted as an adult; or, the alleged offen~e was an extensive juvenile felony record, b11t no prior history information would facilitate the federal committed after his sixteenth birthday and IS a adult record, may be sentenced as a first offender investigation and prosecution of youth gangs, felony punishable by a maximum of a~ lea~t 10 years, as a result of legislative mandates or policy expung­ an issue examined later in this chapter. life imprisonment, or death, and the dIstrlCt court ing or sealing the past record. V\Thile this issue after a transfer hearing finds criminal prosecution is not, per se, a federal issue, the federal system to be in the interests c ~ justice. 'Ve believe the federal may be affected where juvenile records of government should have the opportunit~ to p~ose­ individuals being prosecuted on federal cute those individuals, be they adults or Juvemles, criInes cannot be obtained.1 who violate federal law, and we recommend that the J u veni Ie Justice and Delinquency Prevention Act be amended to provide for such original jurisdiction over juveniles who commit federal offenses. We make this recommendation primarily to allow [1 full implementation of Recommendation 60, which I: calls for the use of federal investigative and prosecutorial resources to combat youth gangs.

Note 1. 1Ve also addressed juvenile crime in Phase I Recommendations 8 and 12.

813 Juvenile Orime Juvenile Orime 83

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violent crime and drug-related offenses is enormous, \ J Youth gangs the similarity between gangs and organized crime at these statutory goals. While such activities do is undeniable, and much gang activity can and Feder'al juvenile justice program not directly impact on violent crime, they do free up should itself be characterized as organized \J the resources of the criminal and jm'enile justice crime. In recognition of these facts, we urge the systems to deal with violent and other serioua Recommendation 60 Attorney General to take those steps necessary to \ offenders in a cost-effective manner and prodde ensure that federal law enforcement and prose­ Recommendation 61 a significant but unmeasurable preventive aspuct The Attorney General, where appropriate, should cutorial agencies will be able to effectively investigate to the extent that they keep juveniles out of the expand the use of federal investigative and Funding of juvenile justice programs should be and prosecute serious organized youth gang system and away from delinquelH~Y 01' crIminal prosecutorial resources now directed against done according to the criteria set forth in Recom­ activities. contacts and activity. The de institutionalization goal traditional organized crime activities to the serious mendation 53; such programs should be considered has largely been met (about 80 percent). 2 criminal activities of youthful street gangs Notes for funds along with all ouher programs within now operating in metropolitan areas of the the administrative framework for general The Office directly and indirectly placed 28 percent 1. We also address juvenile crime in Phase I Rec­ country.l funding.1 of the $400 million in grants which it funded over ommendations 8 and 12. the past 4 years into programs focusing on violent 2. Walter B. Miller, Orime by youth gangs and and other serious crimes. Since fiscal 1977, approxi­ Commentary groups in the United States, draft report submitted Commentary mately $10.3 million, or about 40 percent of the to the Office of Juvenile Justice and Delinquency '1'11e most prevalent context of serious and violent total research budget, has been allocated to seriona Prevention, 1981, chap. 4, p. 30ff. It is clear from all of the data that the level of violent juvenile criminality is what has been described crime committed by juveniles is a national problem. juvenile crime. Through national data colleetion and as "law-violating groups." It is estimated these Additionally, based on our own observations and analysis activities, the National Institute of Juve­ disruptive youth groups involve perhaps up to 20 the testimony of juvenile justice experts around the nile Justice and Delinquency Prevention (NIJJDP) percent of eligible boys in cities of over 10,000 country, we believe the federal government can play has developed estimates of the extent of juvenile population and that about 71 percent of all serious an important and cost-beneficial role as a program violence ,in the United States. Studies of delinquent crimes by youths are the product of law-violating catalyst to state and local jurisdictions in their career patterns have increased the knowledge of the groups. In addition to loosely-formed law-violating attempts to alleviate this problem. characteristics of serious juvenile offendel'O and groups, there are about 2,200 gangs with 96,000 factors associated with involvement in serious In the current federal effort to combat juvenile members located in approximately 300 U.S. cities crime. National assessments of youth gangs and crime, tlhe major impetus has COlfie from th~ Office of and towns. Killings playa major role in the criminal of school crime have developed information on Juvenile Justice and Delinquency PreventIOn activities of gangs. In 60 of these cities alone, ~erious crime in particular contexts to guide pro­ (OJJDP). That Office's enabling legislation, the approximately 3,400 gang-related homicides were grnm development efforts. Other research has Juvenile Justice and Delinquency Prevention Act, recorded during the period 1967-1980.2 looked at nationwide data on juvenile court han­ has 3 more years of authorization. The program was cUing of juveniles and strategies for l'ehabilitating In public testimony given by a former youth gang placed in the Department of Justice in 1974 because serious juvenile offenders more effectively and member and others, we frequently heard gang of the Congressional determination that the Act's efficiently. s activities described in terms of an organized crime goals could best be achieved by working through the effort. Many youth gangs operate across state lines to criminal and juvenile justice systems rather than The findings of these studies have been used in the facilitate, for example, the interstate transportation outside the system as had been the case through development of special emphasis programs aimed at of narcotics or weapons for use by gang members. 7 years of HEW funding in the social services reducing serious juvenile crime. For the period Often youth gangs are modeled after traditional framework. fiscal 1978-1981, approximately $39 million (about organized crime operations and as a result become 34 percent) of the total "Special Emphasis" pro­ The primary focus of the Office of Juvenile Justice involved in the full range of illegal activities gram funds were allocated to the serious crime area.4 and Delinquency Prevention had been on removal associated with them. Law enforcement officials, of status offenders and nonoffenders from secure Under the formula grant program, the states have however, have typically dealt with gangs in terms detention and correctional facilities, separation used approx,imately $72.6 million of their funds for associated with "juvenile delinquency." Thus, the serious juvenile crime initiatives for fiscal 1978-1981. federal law enforcement apparatus has tended to of adult offenders and juveniles in secure institutions, These efforts include a complete range of police, view gangs as state and local problems. We can no and, as of the 1980 Amendments to the Act, the removal of juveniles from adult jails and lockups. court, prosecution, and corrections progrnms aimed longer afford to do this, as it has become increasingly 5 clear that the level of gang activities involving Most of OJJDP's resources and those provided to at the serious offender. the states under the program have been directed . ,!

84 Jwvenile Orime Jwvenile Orime &5 f

7 I A'lF ., .

In terms of the federal role in combatting serious juve

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state and local courts, some violent crime, particularly assaults on federal officials, robbery • To be notified of any proposed discretionary • To be represented by an attorney, not necessarily Federal standards for the fair treatment of federally insured financial institutions, and disposition, and the terms thereof, including any of victims of serious crime at public expense, in certain types of cases (rape, etc.) violent crime associated with organized crime, plea and sentence bargain al'l:angement involving where the reputation 01' right of the complaining is prosecuted in federal courts. No U.S. Attorney's the accused perpetrator of the crime and any agree­ victim/witness is at stake. Offi~e'has set up a victim/witness assistance ment by a prosecutor to accede to an insanity defense. • To be Illade whole through restitution and/or unit.2 This may be due in part t.o the fact • After conviction, to be notified of any release of ci\'ilreco\'ery wherever possible. Recommendation 62 that the U.S. Attorney's Offices prosecute relatively the defendant if such defendant was incarcerated, The Attorney General should establish an~ few cases involving violent crime and civilian • To ha\'e perpetrators prevented from being including a temporary pass, furlough, work or other enriched, either directly or indirectly, by their promulgate within the Departm~nt of J ustIc~, or victims. On the other hand, it may well be release; discharge, or an escape. crimes 01' at a victim's expense. support the enactment of legislatIon to establIsh, that at least the larger offices or those t.hat prosecut~ Federal Standards for the Fair Treatment of cases involving offenses that occur on federal • To be notified of any change in a defendant's Two additional proposed features are, first, that status wlmi such defendant has been committed to Victims of Serious Crime.1 reservations do have a need for such a unit. victims and witnesses should expect that they will Accordingly, we recommend that the Attorney the custody of the Department of Mental Hygiene be treated with dignity and compassion and, second, General provide for the funding of victim/witness 'as a result of being found not guilty by reason of that they should expect that a translator will be insanity or being found unable to stand trial due to Commentary assistance units in those offices that have a need r provided where necessary and practical. for such a unit. mental infirmity. A change in status would include Our society is based on the rule of law rather than I the transfer to any less secure facility, a temporary Notes individual anarchy and personal yengeance. Mem­ A federal standard for the fair t.reatment of victims pass, furlough, vacation, work or other release, I 1. ,Ve a Iso address victims of crime in Phase I bers of society have given up the right to p:rso~lally of violent crime would serye as a model toward discharge, 01' an escape. Other interested parties, such enforce the law and to collect their own retl'lbutIon which all prosecutors' offices throughout the as the court and the District Attorney, should also Recommendation 13. in favor of our federal, state, and local governments country could strive. be notified. 2. The U.S. Attorney's Office for the District of performinO' those roles. As a result, government Columbia has recently set up a victim/witness unit It should be noted that a federal standard would I It To be informed of financial and social service owes a du~r to protect law-abiding members of not, in and of itself, afford victims any subsbtntive assistance available to crime victims. This includes but it is based in the District of Columbia Superior Court, which handles local, not federal, prosecutions. society. rights that, if violated, would give them a cball~se receiving i'nforma.tion"Qn'how to apply for such Moreover, experience has shown that vict.ims ~nd of action. It was out of concern that the pu IC or assistance and servic~s. witnesses are much more apt to report crImes III courts might construe the adoption of a "Victim's • To be provided with, appropriate employer the first place and, secondly, to cooperate w~th Bill of Rights" as the creation of a new .cause of and creditor intercession services to ensure that the authorities once a case is brought to theIr action that ,,'e declined to accept that labellll out employers of victims will cooperate with the criminal attention, if they perceive that the g~vernme~t recommendation. However, we do support the justice process in Ol'der to minimize an empleyee's cares about them and will do everythlllg feasIble to O'eneral concept that is embodied in recent proposals loss of pay and other benefits resulting from court protect their rights. If victi.m~ and. wi~nesses for better treatment for victims. One such prop?t:ml appearances. cooperate fully with the ~rImlll~l J~stIce syste~, is now pending enactment in New Y?rk. Tha~ bIll" • To be provided with adequate witness compensa­ it will be much easier to brlllg to JustIce and pumsh with slight modifications, is set forth below III tion and to be informed ohuch compensation and those responsible for breaking the law. Our society order to illustrate this issue. ,Ve wish to point out, the procedure to be followed to obtain such witness will thus become much safer. however, that by including it for illustrative. . purposes, we do not necessarily suggest that tIllS hst fees. The importance of victims to the criminal justice is a definitive set of standards. The actual federal (1 To be provided with, whenever possible, a secure system has been recognize~ at the highest .levels. standards that would be established would be up waiting area, during court proceedings, that ensures While a candidate for PresIdent of the Umted States, to the Attorney General. Under the New York that the victim/witness will not be in contact with Ronald ReaO'an created an Advisory Task Force on proposal, citizens would have the followlllg defendants and families and friends of defendants. Victim's Ri~hts. After taking office, President expectations: Reagan proclaimed the week of April 19 through 25, • To receiye ad~quate protection from any threats • To be protected from criminal violence and of harm arising out of coopei'ation ivith law enforce­ 1981, "Victim's Rights vVeek." cnme. ment and proseclltion efforts. This right includes There have been a number of offices in this country, • To be kept informed by law enforcement receiving information as to the level of protection such as D. Lowen Jensen's former office in agencies of the progress of their investigation. available. ' Alameda County, California, and Michael McCann:s • Once a suspect is apprehended, to be kept • To have any stolen or other personal property office in Milwaukee, 'Wisconsin, that have made .. informed by the District Attorney as to the progress held by law enforcement authorities for evidentiary tremendous progress in recoghizing and attenCllllg of the case includinO' any final disposition, when or other purposes returned as expeditiously as to the problem of victims and witnesses. However, the victim so requests. This expectation also includes possible (photographs should be taken whenever the overall response to those problems has been notification that the defendant has been released possible) . inconsistent and in some cases practically non- ' existent. While most violent crime is prosecuted in from custody.

, 88 Victims of Grime I," I Victims of Orime 89 "

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After his release, he brutally beat and murdered It is clear that allowing this type of suit against Third-party accountability two women and kidnapped, raped, murdered, and governmental agencies would require additional mutilated a third woman, whose survivors brought manpower and financial resources. In addition, Victim compensation suit under the Federal Tort Claims Act against arguments have been made that such judicial the Federal Bureau of Prisons and the U.S. Board scrutiny would be a burden on governmental activity Recommendation 63 of Parole. This suit was dismissed by the trial and would inhibit the exercise of governmental Recommendation 64 The Attorney General should study the principle court, but the dismissal was reversed by the Fifth decisionmaking, although it should be noted that that would allow for suits against appropriate Circuit Court of Appeals. There is presently a Ii the proposal involves governmental, not individual, The Attorney General should order that a motion for rehearing en banc pending. j federal governmental agencies for gross negligence liability and is limited to gross negligence involving relatively inexpensive study be conducted of the obviously dangerous persons who later commit acts in volved in allowing early release or failure to The public expects vigorous governmental efforts various crime victim compensation programs of criminal violence. Nonetheless, fears have been 1 supervise obviously dangerous persons or to protect it against such occurrences as took place and their results. expressed that allowance of this type of suit would for failure to warn expected victims of such in the Payton case. A growing body of authority op;n the door to broader, more inclusive litigation dangerous persons.1 recognizes the duty to properly supervise parolees and governmental liability. However, as we have and patients who are dangerous, to advise Commentary pointed out, liability could be narrowly drawn. appropriate officials of their release, and to In ,an effort to compensate victims of crime, 34 Commentary warn potential victims. Such accountability would Because the need for compensating victims of crime states have enacted crime victim compensation laws. In the past, there have been a number of occasions act as an incentive for professional and efficient under the type of circumstances outlined in the The subject of victim compensation is 11ft extremely where extremely dangerous criminals have been administration and would tend to act as a deterrent Payton case is so great and because we think that complicated one, involving a myriad of issues rang­ precipitously released into society by prison officials, to grossly negligent actions that result in the , the existence of governmental liability for acts of ing from funding and financial considerations to parole boards, and mental institutions. Once at large release of obviously dangerous persons into Our gross negligence would have a beneficial effect on eHgibility requirements. The programs in the in society, they have brutalized and even murdered society. As the scope of government grows, the 1 the performance of governmental duties, we states are quite different, and each has its own / persons. Since these victims and their survivors have potential for harm due to its negligence increases. recommend that the Attorney General study the advantages and disadvantages. A federal crime had no real recourse to redress the wrongs visited 'When injury results from the grossly negligent , Ii, principle of establishing governmental liability for victims compensation bill has been introduced in upon them, they have, with some justification, felt actions of government under the circumstances .. acts of gross negligence that result in injury under the last eight sessions of Congress, where it has that their government had failed in its obligation herein described, there is a need to compensate conditions such as we have described in this section. failed to achieve passage. to protect them. In an effort to find some redress, the victims. Since there is no real method in II It seems apparent that the state of the art in the survivors of one such victim brought a suit existence now, it should be created. Note crime compensation has not advanced to the point against the Federal Bureau of Prisons and the U.S. Ii 1. IV' e also address victims of crime in Phase I IVe are of the opinion that any cause of action in Ii where it could be said that a model program could Board of Parole under the Federal Tort Claims Act. Recommendation 13. this area should be a limited one. One definite Ii be recommended that would quiet the extensive The facts of this case, Payton v. United State8, 636 advantage of having legislation is the ability t{) controversy that surrounds this issue. It would F. 2d 132 (5th Oir.1981), are briefly set out below Ii set out the parameters of the cause of action and appear that a thorough study is necessary that is in an effort to elucidate the issue of third.party thus restrict it to the relatively rare situations to accountability. outside the scope of this Task Force. Accordingly, which it should apply. There is a careful balancing Ii .." we recommend that the Attorney General direct A member of the U.S. Air Force, Thomas that must be performed: first, to allow for I,i t! that a relatively inexpensive study of the various 'Whisenhant, was sentenced in 1966 to 20 years in governmental responsibility in those situations d programs and their results be conducted. federal prison on a charge of assault with intent that call for it and, second, not to foster a public ~ to murder a female member of the Air Force, perception that the government is responsible I',I Note II in money damages for every dereliction, however I' whom he severely and brutally beat almost to r! 1. IV' e also address victims of crime in Phase I minor, that its employees commit. A carefully death. 'While in prison he manifested his continued tJ Recommendation 13. homicidal tendencies by threatening the life of a . crafted legislative proposal which sets out these female penitentiary employee. He was repeatedly parameters would accomplish this end. ~ diagnosed in prison as a paranoid, schizophrenic ~ psychotic who had tendencies toward brutal Ii assaultive behavior. One psychiatrist concluded Ii that he was in dire need of long-term psychiatric II treatment. Nonetheless, his sentence was inex­ 11 plicably reduced to 10 years and he was released. Ii This release, according to the testimony of a d psychiatrist, was a grievous error bordering on Ii gross negligence. /) II I

90 Victims of Orime Victims of Orime 91 !f , ."" ......

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June 2-3, 1981-Los Angeles, California Appendix June 18, l'B81-Detroit, Michigan Edmund G. Brown, .Tr., Governor, State of California Mark H. Moore, Professor of Oriminal Justice, Policy and Management, Kennedy School of Tom Bradley, Mayor, Oity of Los Angeles Government, Harvard University Witnesses before the Attorney General's Task Force Evelle J. Younger, Attorney-at-Law, Los Angeles, Oolin Loftin, Assistwnt Professor of Sociology, on Violent Crime Oalifornia University of Michigan George Deukmejian, Attorney General, State of William L. Cahalan, Prosecuting Attorney, Wayne California Oounty, Michigan Malcolm Richard Wilkey, Judge, U.S. Oourt of Albert J. Reiss, Jr., 1Villiam Graham Summer Appeals for the District of Oolumbia Oircuit Professor of Sociology and Lecturer in Law, Yale Kamisar, Henry K. Ransom Professor of La,,', Yale University University of Michigan Law School Oole.man A. Young, Mayor, Oity of Detroit April 16-17, 1981-Washington, D.C. May 20-21, 1981-Atlanta, Georgia Harry A. Searl', Task Force Staff Pete Dunn, Member, Arizonl1 House of Richard J. Gross, President, National Association Lee Brown, Oommissioner of Public Safety, Atlanta, I Representatives William H. 1Vebster, Director, Federal Bureau of Georgia of Crime Victims Oompenswtion Board Investigation i J olm K. Van de Kamp, District Attorney, Los Oatherine G. Lynch, Director, Dade Oounty Oharles F. Rinkevich, Director, Atlanta Federal Angeles County (Florida) Advocates for Victims David Nurco, Doctor of Medicine, University of Task Force Maryland School of Medicine I. Daryl F. Gates, Ohief, Los Angeles Police Aaron Lowery, Director of Public Safety and Abraham S. Goldstein, Sterling Professor of Law, Department .T ustice, New Detroit, Inc. Peter B. Bensinger, Administrator, Drug Yale Law School II Enforcement Administration 11 Dor..ald Iil. Santarelli, Attorney-at-Law, Professor Harold Norris, New Detroit, Inc. Daniel N. Robinson, Professor of Psychology, Washington, D.C. Norman A. Carlson, Director, Federal Bureau of Georgetown University Prisons July 21-22, 1981-Key Biscayne, Florida David Robinson, .Tr., Professor of Law, George June 17, 1981-Chicago, Illinois Kenneth I. Harms, Ohief of Police, Oity of Miami John J. Twomey, Deputy Director, U.S. Marshals Washington University Tyrone O. Fahnel', Attol'l1ey General, Stwte of Bobby L. Jones, Director, Metro-Dade Police Service Illinois R. Kenneth Mundy, Attorney-at-Law, 1Yashington, Department, Dade Oountry, Florida G. R. Dickerson, Director, Bureau of Alcohol, D.O. Tobacco and Firearms Sylvia Bacon, Ohairperson-Elect, American Bar Amos E. Reed, Secretary, Department of Oorrec­ Rufus L. Edmisten, Attorney General, State of I Association Section of Oriminal Justice, and Judge, tions, State of 1Vashington William T. Archey, Acting Oommissioner, U.S. X orth Carolina Superior Oourt of the District of Oolumbia Oustoms Service 1V. Olement Stone, Ohairman and Founder, Com­ 1\1. James Lorenz, U.S. Attorney, Southern District Laurie Robinson, Director, American Bar As­ D. Lowell Jensen, Assistant Attorney General, bined Insurance Oompany of America, Ohicago, of Oalifornia I; sociation Section of Oriminal Justice Hlinois Oriminal Division Edwin L. Miller, Jr., District Attorney, San Diego George O. Stimeling, Superintendem.t of Schools, Bob Graham, Governor, State of Florida Yfilliam P. Tyson, Acting Director, Executive Office County Bloomington, Illinois for U.S. Attorneys Jim Smith, Attorney General, State of Florida Lee M. Thomas, Director, Division of Public Safety ~1iarvin E. Wolfgang, Professor of Sociology and Allen F. Breed, Director, National Institute of Programs, Office of the Governor, State of South Law, University of Pennsylvania Jon A. Sale, Attorney -at-Law, Miami, Florida Corrections Carolina Former Youth Gang Member David H. Bludwol'th, State Attorney, 15th Judieinl Robert F. Diegelman, Acting Director, Office of Oircuit, 1~Test Palm Beach, Florida Richard M. Daley, States Attorney, Cook Oounty, Justice Assistance, Research and Statistics 1 I Illinois George Sunderland, Director, Oriminal Justice J Services, National Retired Teachers Association! Phillip "rayne Hummer, Presidem.t, Chicago Crime American Association of Retired Persons Commission I James 1V. York, Commissioner, Florida Department Patrick F. Healy, Executive Director, Chicago of La',,, Enforcement Orime Commission John R. Manson, Oommissioner, Department of r William S. White, Justice, Illinois Court of Appeals OorrectioD;, State of Connecticut Richard J. Brzeczek, Superintendent, Chicago Gerald Lewis, ComptroHer, State of Florida Police Department Howard M. Rasmussen, Executive Director, Citizens' Orime Commission of Greater l\fiami, Inc. ~ l! II Appendiw 92 ;;:.,' .... ." .... ~ Appendiw 93 " j , 1

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P I .I August 4-5, 1981-New York, New York Edward I. Koch, Mayor, City of New York I . Robert J. McGuire, Commissioner, New York Police j Deparbment Robert G. M. Keating, Criminal Justice Coordinator, U.S. Department of Justice Official Business f Postage and Fees Paid City of New York I Penalty for Private Use, $300 ,u.s. Department of Justice Jus 431 Mario Merola, District Attorney, Bronx County, Attorney General's Tasle Force on Violent Orime New York FIRST CLASS u.s. MAIL Henry S. Dogin,Attorney-at-Law, New Yo'.'k, New I ® York Ernest van den Haag, Author and Professor of Law, Washington, D.O. 20580 New York Law School Thomas A. Reppetto, President, Citizens' Crime Commission of New York City James P. Damos, First Vice President, International Association of Chiefs of Police Norman Darwick, Executive Director, International Association of Chiefs of Police

U.S. GDVERNMEI,T PRINTING OFFICE 1981 0 - 353-069 94 Appendiw I~ , I .~ ""~~-'--<'"'-~. i Jr i - , I I "

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