Policy Luncheon, May 22, 1990

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Title (Dublin Core): Policy Luncheon, May 22, 1990
Date (Dublin Core): 1990-05-22
Date Created (Dublin Core): 1990-05-22
Congress (Dublin Core): 101st (1989-1991)
Policy Area (Curation): Congress
Creator (Dublin Core): Dole, Robert J., 1923-2021; Armstrong, William L. (William Lester), 1937-2016
Record Type (Dublin Core): reports
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Language (Dublin Core): eng
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Physical Location (Dublin Core): Collection 007, Box 398, Folder 32
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Archival Collection (Dublin Core): Robert J. Dole Republican Leadership Collection, 1985-1996
Full Text (Extract Text): AGENDA
POLICY LUNCH
TUESDAY, MAY 22, 1990

1. SCHEDULE -- THIS WEEK
o Crime Bill: Need to review status of negotiations with Mitchell/Biden.
o Budget Negotiations: Meetings Tuesday and Thursday focus on establishing baseline. (Issues: RTC, Social Security, etc.).
o Supplemental Appropriations Conference Report (likely on Wednesday or Thursday).

handwritten on page: H. Dewn - calls to Reagan; illegible name(s)

LEGISLATIVE NOTICE
Editor, Judy Myers

Notice #77
May 21, 1990

U.S. SENATE REPUBLICAN POLICY COMMITTEE
William L. Armstrong, Chairman

OMNIBUS CRIME BILLS
S. 1970 by Senator Biden (Calendar no. 422)
S. 1971 by Senator Thurmond (Calendar no. 423)
S. 1760 by Senator Thurmond (Calendar no. 478)
S. 1760 incorporates the recommendations of the Special Committee on Habeas Corpus Review of Capital Sentence chaired by former Supreme Court Justice, Lewis F. Powell

Note, see also S. 1225 (the President's bill), and S. 1972 (Senator Biden's 2d bill).

S. 1970 and S. 1971 were introduced November 21, 1989 and placed directly on the Calendar on November 22, 1989; there are no committee reports. However, major parts of the bills have been considered by the Judiciary Committee or the Senate. S. 1225 is the President's criminal justice reform proposal; it was introduced on June 22, 1989 and referred to the Committee on the Judiciary where it is pending. S. 1972 was introduced by Senator Biden on November 21, 1989, and referred to the Judiciary Committee where it is pending.

A section-by-section analysis of S. 1970 can be found at 135 Cong. Rec. S 16734 (daily ed. Nov. 21, 1989). A brief summary of S. 1971 can be found at 135 Cong. Rec. S 16761 (daily ed. Nov. 21, 1989). Section-by-section analyses of S. 1225 and S. 1972 can be found at 135 Cong. Rec. S 7268 (daily ed. June 22, 1989) and 135 Cong. Rec. S 16754 (daily ed. Nov. 21, 1989), respectively.

See the following page for a table of contents for this legislative notice.

TABLE OF CONTENTS
CONTENTS....................................PAGE NUMBER
Quick Index.................................3
Capital Punishment..........................4
"Racial Justice Act"................7
Habeas Corpus...............................10
Exclusionary Rule...........................16
Firearms....................................21
Money Laundering............................24
Department of Justice Reorganization........24
Drug Testing Before Release.................25
Public Corruption...........................25
Undercover Operations.......................25
Possible Amendments.........................26

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QUICK INDEX
Issue
S. 1970 (Biden)
S. 1971 (Thurmond)
S. 1225 (President)
Capital Punishment
Title I, same as S. 32 as reported, i.e. with "Racial Justice Act," etc.
Title I, same as S. 32 as introduced
Title II,
Habeas Corpus
Title II, same as Biden's S. 1757 (response to "Powell Committee's" report)
Title II, same as Thurmond's S. 88 (this language passed Senate in 98[th] Cong.)
Title VI (similar to language of 98[th] Cong.)
Exclusionary Rule
Title III (codifies rule of U.S. v. Leon - applies only to searches conducted with a warrant)
Title III (extends good faith exception to searches conducted with or without a warrant)
Title V (similar to language that passed Senate in 98[th] Cong. & House in 99[th])
Firearms
Title IV, same as S. 747, as reported; see also, Title XI of S. 1972
Title IV, increased and mandatory penalties for firearms offenses
Titles I & III (some parts of Title I passed Senate in the 100[th] Cong.)
Money Laundering
Title V (Senate agreed to much of this title in October, 1989 (S. 1711))
No provision
No provision
DoJ Re-Organization
Title VI, creates an Organized Crime and Dangerous Drugs Division in DoJ
No provision
No provision (strongly opposed by Bush Administration)
Drug Testing Before Release
No provision
Title V
Title IV
Public Corruption
No provision, but see Title VI of S. 1972
Title VI (Senate agreed to in October, 1989 (S. 1711))
No provision
Undercover Operations
No provision
Title VII
No provision

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CAPITAL PUNISHMENT
Constitutional Capsule
"The Eighth Amendment clearly and expressly forbids the infliction of cruel and unusual punishments (a prohibition that since 1947 has applied to the states as well as to the national government), and opponents of Capital Punishment have long argued that to execute a convicted criminal, whatever his crime, is such a punishment. It was obviously not so regarded by the persons who wrote and ratified the Bill of Rights. They acknowledged the legitimacy of the death penalty when, in the Fifth Amendment, they provided that no person "shall be held to answer for a capital ... crime, unless on a presentment or indictment of a Grand Jury," and when in the same amendment they provided that no one shall, for the same offense, "be twice put in jeopardy of life or limb," and when they forbade not the taking of life as such but the taking of life "without due process of law" (a formulation repeated in the Fourteenth Amendment). The question of the original understanding of "cruel and unusual" is put beyond any doubt by the fact that the same First Congress that proposed the Eighth Amendment also provided for the death penalty in the first Crimes Act. In 1958, however, the Supreme Court, in the course of holding deprivation of Citizenship to be a cruel and unusual punishment, accepted the argument that the meaning of cruel and unusual is relative to time and place; the Eighth Amendment, the Court said in Trop v. Dulles (1958), "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Implicit in this statement is the opinion that society, as it matures, becomes gentler, and as it becomes gentler, it is more disposed to regard the death penalty as cruel and unusual. According to one member of the five-man majority in the 1972 cases, that point had been reached: "capital punishment, " wrote Thurgood Marshall, "is morally unacceptable to the people of the United States at this time in their history."

"This assessment of the public's opinion could not reasonably provide the basis of the Court's judgment in these cases; contrary to Marshall, the polls showed a majority in favor of the death penalty and, more to the point, there were at that time some 600 persons on death row, which is to say, some 600 persons on whom the American people, acting through their federal and state courts, had imposed death sentences. Marshall's assessment was also belied by the reaction to the Court's decision: Congress and thirty-five states promptly enacted new death penalty statutes, and it is fair to assume that they did so with the consent of their respective popular majorities. . . . " Walter Berns, "Capital Punishment Cases of 1972," in L. Levy, K. Karst, D. Mahoney (eds.) Encyclopedia of the American Constitution 206-07 (1986).

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Background
The great majority of Americans support capital punishment. Recent polls have shown support above 80 percent -- higher than at any time during the 50 years that the question has been tracked. Critics of capital punishment believe such support reveals a sort of primitive American blood lust, but there is another explanation -- justice:

"The purpose of the criminal law is not merely to control behavior -- a tyrant can do that -- but also to promote respect for that which should be respected, especially the lives, the moral integrity, and even the property of others. . . . If human life is to be held in awe, the law forbidding the taking of it must be held in awe; and the only way it can be made to be awful or awe inspiring is to entitle it to inflict the penalty of death." W. Berns, For Capital Punishment: Crime and the Morality of the Death Penalty -- (1979).

In 1972, the Supreme Court struck down every death penalty statute in the nation, holding that the penalty was being imposed in an arbitrary and capricious manner in violation of the 8th Amendment.1 Furman v. Georgia,

1 Several times before Furman the Supreme Court had validated the constitutionality of capital punishment: "Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment." Wilkerson v. Utah, 99 U.S. 130, 134-35 (1879) (unanimous Court). "[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." In re Kemmler, 136 U.S. 436, 447 (1890) (unanimous Court). See also, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947): "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely."

In 1958, Chief Justice Warren wrote, "At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purpose of punishment -- and they are forceful -- the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty ... " Trop v. Dulles, 356 U.S. 86, 99 (1958) (opinion of Warren, C.J., and Black, Douglas, and Whittaker, JJ. ). One year before Furman, Justice Black wrote, "The Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the

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408 U.S. 238 (1972). At that time, about a dozen Federal crimes were punishable by death, e.g., espionage, treason, first degree murder, felony-murder, rape, and certain kidnappings.2

The States responded with new procedures that have since been held constitutional, e.g., Gregg v. Georgia, 428 U.S. 153 (1976). The new procedures establish a bifurcated, i.e. two-part, proceeding in which guilt or innocence is determined in the first part and the sentence is decided in a second proceeding. About 40 States now have constitutional capital punishment statutes. However, with the exception of murders committed during aircraft hijackings, murders by drug "king pins," and murders of police officers Congress has not re-established constitutionally acceptable procedures. Federal judges and juries do not have the option of sentencing a murderer to death, no matter how vile the crime, no matter how numerous the murders.

In the 98th Congress, the Republican-controlled Senate passed a capital punishment bill (S. 1765, accompanied by S. Rpt. 98-251) but the House refused to act. In the Senate, the bill was supported by 80 percent of the Republicans and 49 percent of the Democrats.

S. 32 As Introduced And As Reported (Title I of S. 1970 (Biden)) (Title I of S. 1971 (Thurmond))
In Title I of S. 1970, Senator Biden urges the Senate to accept S. 32 as reported. (It was reported by the Committee without recommendation. ) In Title I of S. 1971, Senator Thurmond urges the Senate to take S. 32 as introduced. This section reviews the provisions of the bill as introduced

Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power .... " McGautha v. California, 402 U.S. 183, 226 (1971) (Black, J., concurring).

2 The Federal Government's capital punishment statutes had been passed by enormous margins in Congress, some examples of which are given in Justice Blackmun's dissent in Furman. Justice Blackmun concluded his summary of Congressional action by writing: "It is impossible for me to believe that the many lawyer-members of the House and Senate -- including, I might add, outstanding leaders and prominent candidates for higher office -- were callously unaware and insensitive of constitutional overtones in legislation of this type. The answer, of course, is that in 1961, in 1965, and in 1970 these elected representative of the people -- far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man's dignity, than are we who sit cloistered on this Court -- took it as settled that the death penalty then, as it always had been, was not in itself unconstitutional. Some of those Members of Congress, I suspect, will be surprised at this Court's giant stride today." 408 U.S. at 413 (Blackmun, J., dissenting).

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and as reported, with the exception of section 7, the "Racial Justice Act of 1989," which is reviewed in the next part of this memorandum.

S. 32 attempts to attach the bifurcated trial/penalty phase (that the Supreme Court now requires) to those Federal crimes for which the death penalty is already a statutorily available punishment. (That is, the statutes now say that death is a possible punishment but because the Federal procedures have not been modified to conform to the constitutional requirement of a bifurcated process the punishment of death cannot be imposed. ) Current death penalty statutes apply to a fairly wide variety of crimes if a death results and to a few (treason, espionage) whether or not there is a death. S. 32 also would expand the death penalty to about one-half dozen new offenses where death results. To this point, Senators Biden and Thurmond take the same approach.

However, the Committee modified the rules for the penalty phase of the process. Senator Biden's S. 1970 incorporates those modifications: For example, S. 1970, unlike S. 1971, adds seven additional mitigating factors for the jury to consider; requires that any finding with respect to an aggravating factor be made unanimously; requires that the jury be instructed that it "is never required to impose a death sentence;" requires that the jury be instructed not to consider race, color, religious beliefs, national origin, or sex of the defendant or of any victim and requires each member of the jury to sign a certificate avowing that such factors played no role in his or her deliberations; requires that "a sentence of death shall not be carried out upon a person who is mentally retarded;" and requires that "no person may be sentenced to death who was less than 18 years of age at the time of the offense."

"Racial Justice Act"
(Section 107 of S. 1970 (Biden))

Section 107 of S. 1970 (and section 7 of S. 32) is titled the "Racial Justice Act of 1989." It is an effort to exercise Congress's power under section 5 of the Fourteenth Amendment to enforce the equal protection of the laws, and it would apply to both State and Federal proceedings. Section 107 begins with a list of findings, including that "the death penalty is being administered in a pattern that evidences a significant risk that the race of the defendant, or the race of the victim against whom the crime was committed, influences the likelihood that the defendant will be sentenced to death."

The "Racial Justice Act" declares that no one at the State or Federal level may be executed (or have the sentence of death imposed) if either the sentence or the execution of the sentence furthers a racially discriminatory sentencing pattern. A racially discriminatory pattern may be established by any form of admissible evidence, including the kinds of statistics that are used in Title VII cases. Proof of discriminatory intent need not be shown.

A prima facie showing of a racially discriminatory pattern may be made out (1) by showing that death sentences are being imposed upon persons of

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one race with a frequency that is disproportionate to their representation among persons arrested for, charged with, or convicted of death-eligible crimes; or (2) by making a similar showing with respect to the race of victims. The prima facie case may be rebutted by clear and convincing evidence that shows that the racial pattern is explained by nonracial factors.

Opposition to "Racial Justice Act"
The five Republican members of the Committee who voted against the "Racial Justice Act" called it the "Racial Quota Amendment" and said:

"Under [the "Racial Justice Act"], the availability of the death penalty in a given case would squarely and conclusively depend on the race of the perpetrator or the race of the victim. For example, if the statisticians decided that too many killers of white victims were being sentenced to death in a given jurisdiction, the Kennedy amendment would prohibit the death sentence in cases where the victim was white but not if the victim was black. Consequently, a convicted murderer could conclusively avoid the death penalty by invoking the race of his victim. The cruel irony of such results for the innocent victims of brutal murders is difficult to exaggerate.

"Conversely, if the statisticians decided that a disproportionate number of white perpetrators were receiving the death sentence -- which could well be argued in light of the [Bureau of Justice Statistics] statistics cited above -- the ["Racial Justice Act"] would prohibit the death sentence in cases where the murderer was white; but it would allow the death sentence if the murderer was black. In short, race and statistics would become the controlling factor in the availability of the death sentence." Additional Views of Senators Thurmond, Hatch, Simpson, and Humphrey, S. Rpt. 101-170 [to accompany S. 32], 101st Cong., 1st Sess. 24 (1989).

The Department of Justice said:
"Finally, the proposed Act's provision for an effectively irrebuttable presumption of "discrimination" based on a failure to achieve pre-set numerical proportions could serve for the first time to introduce racial considerations into the capital process on a systematic basis. Given the evidence that white defendants are more frequently sentenced to death, it would arguably be necessary to charge and sentence more black defendants to death, or to consciously reduce the number of white defendants for whom a death penalty is sought, in order to achieve the racial proportions deemed proper by the "Racial Justice Act" provisions. Thus, real and deliberate racial discrimination would be required to avoid adverse findings under the bogus concept of "discrimination" manufactured by the proposed Act. In practical terms, compliance with the Act's standards would effectively require a death-by-the-numbers system of quota justice that introduces race into capital sentencing in a constitutionally impermissible manner.

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"Under current law, the Supreme Court's constitutional decisions already bar all actual racial discrimination in criminal justice decisions, and ensure that convictions and sentences will not stand if discrimination has occurred at any stage of the process. Under proposed federal death penalty legislation, such as Title II of President Bush's proposed Comprehensive Violent Crime Control Act (S. 1225), the jury's deliberations in deciding on the death penalty would be focused on non-invidious aggravating and mitigating factors, and each juror would be required to certify that race was not considered. These measures provide effective protection against racial discrimination without quota justice or the imposition of unjustified standards that cannot realistically be met." Letter to Hon. Strom Thurmond from Hon. Dick Thornburgh, Mar. 15, 1990, p. 4 (footnotes omitted).

Background of the "Racial Justice Act"
On April 22, 1987, the Supreme Court held that Georgia's capital punishment statute was not being administered unconstitutionally even though a statistical study (the Baldus study) purported to show a disparity in the imposition of the death penalty based on the victim's (and, to a lesser extent, the defendant's) race. McCleskey v. Kemp, 481 U.S. 279 (1987). The Court split 5-to-4.

The Court rejected the equal protection challenge because the defendant was unable to show purposeful discrimination. The Baldus study was "clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose" and there was no evidence that the Georgia legislature had enacted (or maintained) the statute for racially discriminatory purposes. 107 S. Ct. 1769-70.

For Eighth Amendment purposes, McCleskey argued that his sentence was disproportionate (and therefore unconstitutional) to the sentences in other murder cases. The Georgia Supreme Court cited 13 other cases that demonstrated the error of that claim, but the U.S. Supreme Court pointed out that, absent a showing that the State's system was arbitrary and capricious, McCleskey "cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." Id. at 1774 (emphasis by the Court). Within the constitutional and statutory framework, juries are supposed to exercise discretion. Considerations of aggravating and mitigating factors presuppose discretion. The Court held that McCleskey's sentence was "not disproportionate within any recognized meaning under the Eighth Amendment." Id. at 1775.

Writing for the Court, Justice Powell said:
"Individual jurors bring to their deliberations 'qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. The capital sentencing decision requires the individual jurors to focus their collective judgment on

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the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that 'buil[d] discretion, equity, and flexibility into a legal system.'

"McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. . . . " Id. at 1776-77 (citations omitted).

Justice Powell also pointed out that McCleskey's argument would undermine the principles that underlie the entire criminal justice system. The Eighth Amendment applies not just to capital punishment but to all penalties. Thus McCleskey's argument would soon be extended to other types of punishments, and studies would appear correlating the ethnicity or gender of defendants with their sentences. And why limit the approach to defendants and victims? What about the race or sex of the defense attorney or the judge and jurors? See id. at 1779-81.

"McCleskey's arguments," said Justice Powell, "are best presented to the legislative bodies. It is not the responsibility -- or indeed even the right -- of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are 'constituted to respond to the will and consequently the moral values of the people. '" Id. at 1781 (citation omitted).

HABEAS CORPUS
Constitutional Capsule
"Habeas corpus is the most celebrated of Anglo-American judicial procedures. It has been called the 'Great Writ of Liberty' and hailed as a crucial bulwark of a free society."

"Habeas corpus is accorded a special place in the Constitution. Article I, sec. 9, of the basic document, included even before the Bill of Rights was appended, contains the following provision: 'The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. '"

"Brown v. Allen [344 U.S. 443 (1953)] represented a major extension of the functions of habeas corpus. Its holding, allowing federal reconsideration of issues previously considered fully by state courts, also effectively

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opened wide the range of constitutional contentions that could serve as sufficient grounds for seeking federal habeas corpus. From that point forward, it was clear that at the very least any constitutional claim that could be said to raise any significant issue of trial fairness would be open to consideration. That expansion of the scope of habeas corpus serves important ends, but it has significant costs.

"One of these costs is the adverse reaction of many state judges. The result of Brown v. Allen is that federal courts on habeas corpus may reexamine a state prisoner's constitutional challenges to his conviction after a state court has considered and rejected those same challenges. Because the prisoner must exhaust his state remedies before federal habeas corpus, normally the federal constitutional claims have been pressed not only at the state trial but throughout the state court system, including the state supreme court. The upshot of the new role of federal habeas corpus, then, is that a single federal district judge routinely may review the determination of the highest court of a state and, if he disagrees with it, overturn the conviction that the collegial, multimember court had upheld."

"At least as important as the resentment of state judges is the concern that the wide availability of federal habeas corpus may dilute the deterrent effect of the criminal law. Part of this concern grows out of the belief that deterrence is enhanced by certainty of punishment and that the expansion of federal habeas corpus increases the possibility that a conviction may be overturned. Certainly, the availability of federal habeas corpus, after the full range of state court remedies, does mean that the finality of a conviction is greatly delayed, even when the conviction is ultimately upheld. Moreover, the knowledge that the ultimate decision can always be greatly delayed itself diminished any general sense in the community that punishment may be swift or certain."

". . . Despite strenuous objections to the jurisdiction, Congress has not significantly restricted the scope of federal habeas corpus for state prisoners. Moreover, it does not derogate from the importance of this use of habeas corpus to point out that at base the availability of the Great Writ to challenge executive or military actions or other imprisonments without semblance of judicial process is far more vital to the maintenance of liberty. Even the most ardent advocates of collateral attack on judicial convictions are not likely to disagree." Paul J. Mishkin, "Habeas Corpus" in Encyclopedia of the American Constitution 879, 882, 884-85, 886.

Background
A State prisoner who has been duly convicted and whose direct appeals have been denied is able to begin a whole new set of appeals through the Federal courts by means of habeas corpus procedures. What's so bad about that? Experts point to these problems:

There is no finality to the criminal justice system.

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Dangerous criminals may go free after years (or even decades), thereby making retrial nearly impossible.

Prisoners do not reconcile themselves to their convictions -- they never "make peace" with society. They are less likely to repent of the past and prepare for an honest future.

Public confidence wanes in a system that refuses to conclude its criminal processes. Consequently, the idea of law and justice suffers serious damage.

Relationships between State and Federal courts deteriorate as Federal judges "second guess" their fellows at the State level.

Victims and their families are unable to put their lives back together as the litigation drags on.

The courts become clogged with mostly frivolous petitions.

Former Chief Justice Warren Burger has described the process in these terms:
"I have seen cases -- and this occurs in many courts today -- where 3, 4, or 5 trials are accorded to the accused with an appeal following each trial and reversal of the conviction on purely procedural grounds. . . . In some of these multiple trial and appeal cases the accused continued his warfare with society for 8, 9, 10 years and more. In one case more than 60 jurors and alternates were involved in 5 trials, a dozen trial judges heard an array of motions and presided over three trials; more than 30 different lawyers participated . . . and . . . more than 50 appellate judges reviewed the case on appeals. . . . The tragic aspect was the waste and futility since every lawyer, every judge and every juror was fully convinced of the defendant's guilt from beginning to the end."

Most habeas corpus petitions are totally lacking in merit. Prisoners are often said to use them as a form of occupational therapy. Thousands and thousands of habeas petitions clog the federal district court dockets every year. Forty percent of these petitions are filed more than 5 years after the person was convicted, and nearly one-third are filed more than a decade after conviction. Some petitioners are still filing after more than 50 years.

The Republican-controlled Senate of the 98th Congress passed a habeas corpus reform bill (S. 1763, accompanied by S. Rpt. 98-226) that would have set a time limit on habeas petitions and accorded deference to determinations by State courts that are "full and fair." The Senate vote was 67-9. (91 percent of Republicans and 83 percent of Democrats supported the bill.) The bill died in the House of Representatives.

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(Title II of S. 1970 (Biden))
Title II of S. 1970 contains the provisions of S. 1757, a bill introduced by Senator Biden and modeled on the recommendations of the Special Committee on Habeas Corpus Review of Capital Sentences chaired by former Supreme Court Justice, Lewis F. Powell. There are important differences between S. 1757 and the Committee's recommendations (which are contained in S. 1760), however. See, 135 Cong. Rec. S 13472-475 (daily ed. Oct. 16, 1989).
Title II of S. 1970 applies only to prisoners in State custody who are subject to a capital sentence and only if the State has a mechanism for "appointment, compensation, and payment of reasonable fees and litigations expenses of competent counsel" after the highest State court (and the Supreme Court of the United States, if applicable) have on direct appeal upheld a sentence of death. The appointed counsel shall not have represented the prisoner at trial or on direct appeal "unless the prisoner and counsel expressly request continued representation."

After a sentence of death is upheld on direct appeal, any order setting an execution date shall be stayed if the prisoner applies for a stay. The prisoner has one year to file in Federal district court for habeas corpus relief. The stay of execution expires if the prisoner does not act in a timely fashion as required by the new rules, if the prisoner is denied habeas corpus relief, or if the prisoner waives his rights under the new rules. The stay may not thereafter be reissued unless the renewed claim is based upon illegal government activity, a new Federal right recognized by the Supreme Court that is retroactively applicable, new facts that could not have been discovered earlier through reasonable diligence, new facts that undermine the determination of guilt, or unless a stay is "necessary to prevent a miscarriage of justice."

When reviewing a petition for habeas corpus a Federal district court may refuse to consider a claim if the prisoner failed to raise the claim in State court in a timely fashion but the claim shall be considered if such failure was due to ignorance or neglect of the prisoner or counsel. The court must consider the claim if failure to do so would result in a miscarriage of justice.

"The requirement of a certificate of probably cause in order to appeal from the district court to the court of appeals does not apply to habeas corpus cases subject to this chapter except when a second or successive petition is filed."

In a Dear Colleague letter, Senators Thurmond and other Republicans urged Senators to oppose Senator Biden's proposal on habeas corpus. Among other things that letter said:

"S. 1970 will increase, not decrease, the number of habeas corpus cases -- the overwhelming majority of them "stale, frivolous, and repetitious" -- in federal court.

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"S. 1970 will overturn leading Supreme Court precedent.
"S. 1970 does not establish a definite time limitation on filing habeas petitions.
"S. 1970 enacts a confusing and revolutionary theory of retroactivity, allowing only convicted criminals, and never the government, to benefit from changes in the law.
"S. 1970 provides counsel, at taxpayer expense, for the first time ever to plaintiffs in civil cases -- who have no constitutional right to counsel. Moreover, the typical habeas petitioner on death row has already had his death sentences reviewed and affirmed by at least three and as many as nine different courts, including the Supreme Court.
"S. 1970 writes into law very specific and unrealistically limited experience requirements for appointed counsel.
"S. 1970 expands the right of appeal from adverse rulings on habeas petitions."

The Department of Justice also opposes Senator Biden's habeas proposal:
"In brief, Title II of S. 1970 would not only eviscerate the main features of the Powell Committee proposal, but would also systematically overturn the Supreme Court's current decisions that limit unjustified delay and safeguard the finality of criminal judgments.

". . . The central recommendation of the Powell Committee -- appropriate limits on second and successive federal habeas petitions 13/ -- would be abrogated in favor of a rule that would permit a broad range of claims to be raised in repetitive habeas filings, despite the absence of any justification for failing to raise the same claims in earlier proceedings. Even claims that cast no doubt on the defendant's factual guilt could be raised at the eleventh hour under an undefined "miscarriage of justice" standard.

"Title II of S. 1970 would undermine the integrity of capital convictions and sentences in another way by overturning the existing rules, established by the Supreme Court in Teaque v. Lane, 109 S. Ct. 1060 (1989), and Penry v. Lynaugh, 109 S. Ct. 2934 (1989), that provide reasonable limits on the retroactive application of subsequent changes in the law to attack judgments that were imposed in conformity with existing legal standards. This would resurrect the chronic problems of unpredictability and lack of reasonable finality of judgments that preceded Teaque.

"Overall, Title II of S. 1970 would upset the carefully balanced set of procedures devised by the Powell Committee, and would so skew the applicable procedures in favor of permitting the belated and

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repetitive presentation of claims that no state would choose to operate under its one-sided provisions. As Justice Powell suggested in his testimony on Senator Biden's proposal before the Senate Judiciary Committee on November 8, 1989, enactment of the proposal would mean that 'an important opportunity to provide needed safeguards for inmates, and to bring sanity to our system of capital review, will have been lost.'" Letter to Hon. Strom Thurmond from Hon. Dick Thornburgh, Mar. 15, 1990, pp. 6-8 (footnotes omitted).

In remarks to the American Law Institute on May 15, the Chief Justice of the United States said he opposed Senator Biden's approach to habeas corpus reform. "Rehnquist Urges Curb on Appeals in Death Penalty," N.Y. Times, May 16, 1990, pp. A1, A18.

(Title II of S. 1971 (Thurmond))
Title II of S. 1971 is identical to Senator Thurmond's S. 88. The following summary of S. 88 is taken from 135 Cong. Rec. S 411 (daily ed. Jan. 25, 1989):

"First, the proposed amendments would preclude granting relief with respect to matters that have been fully and fairly adjudicated in State proceedings. . . . Second, the proposed amendments would generally bar the consideration of claims that have not been properly raised in State proceedings, provided the State has afforded the petitioner an opportunity, consistent with the requirements of Federal law, to raise his claims in the State proceedings. Third, the proposed amendments would establish a 1-year limitation period for the filing of habeas corpus petitions by State's prisoners, which would generally run from the time the prisoner exhausts his State remedies. . . . Fourth, the proposed legislation would clearly state that a Federal habeas court can deny a petition on the merits without requiring prior exhaustion of State remedies. This would avoid the waste of judicial resources that result when a person presenting a frivolous petition is sent back to the State system to exhaust State remedies. Fifth, the proposed amendments would vest in the judges of the courts of appeals exclusive authority to issue certificates of probable cause for appeal in habeas corpus proceedings. This would entrust the decision concerning the propriety of an appeal to the judges who are in the best position to determine if there is a realistic likelihood for reversal. . . . Finally, the proposed amendments would make similar changes in the law governing applications for collateral relief by Federal prisoners pursuant to 28 U.S.C. 2255 in the areas of appeal, procedural default, and time limitation."

In remarks to the American Law Institute on May 15, the Chief Justice of the United States also said he opposed Senator Thurmond's approach to habeas corpus reform. "Rehnquist Urges Curb on Appeals in Death Penalty," N.Y. Times, May 16, 1990, pp. A1, A18.

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(Title VI of S. 1225 (President))
With the exception of the final paragraph of Title VI of S. 1225 (relating to the appointment of counsel), the provisions of S. 1225 and S. 1971 appear to be identical.

EXCLUSIONARY RULE
Constitutional Capsule
"When the police obtain evidence by violating the Bill of Rights, the victim of their misconduct may lack any effective legal remedy. Yet some enforcement mechanism is necessary if several important constitutional guarantees are to be reality and not merely expressions of hope. The Supreme Court responded to this concern by developing a series of rules that have come to be know in the aggregate as the exclusionary rule. In typical application, the rule is that evidence obtained in violation of a person's constitutional rights cannot be used against that person in his or her trial for a criminal offense. The rule is most frequently applied to exclude evidence produced by searches or seizures made in violation of the Fourth Amendment. . . .

"The controversy [about the exclusionary rule] did not become intense until the era of the Warren Court. But as far back as Weeks v. United States [232 U.S. 383] (1914) the Supreme Court had unanimously held that evidence seized in violation of the fourth Amendment was inadmissible in a federal criminal prosecution. However, even after the Court had held in Wolf v. Colorado [338 U.S. 25] (1949) that the Fourth Amendment's guarantee against unreasonable searches and seizures was applicable to the states, the court had continued until 1961 to resist the argument that the exclusionary rule should also be extended to state prosecutions. In that year, in Mapp v. Ohio [367 U.S. 643], the Warren Court held that the Fourteenth Amendment did, indeed, impose on the states the exclusionary ruled derived from the Fourth Amendment. . . . Since the 'Fruit of the Poisonous Tree' Doctrine requires the exclusion not only of evidence immediately obtained by these various forms of constitutional violation but also of other evidence derived from the initial violations, the exclusionary rule in its modern form results in the suppression of many items of evidence of unquestioned reliability and the acquittal of many persons who are guilty.

"The primary purpose of the exclusionary rule, as the Supreme Court said in Elkins v. United States (1960), 'is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it.'" Leonard W. Levy, "Exclusionary Rule" in Encyclopedia of the American Constitution 662-63.

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Background
The 4th Amendment protects Americans against "unreasonable searches and seizures." But defining an "unreasonable" search or seizure and deciding what to do one once it has been found has itself become an unreasonable legal process of labyrinthine twists and turns. As noted above, the Supreme Court has decided to enforce the 4th Amendment by use of the exclusionary rule. The rule provides that any evidence discovered as a result of improper police action cannot be introduced at trial. What follows is an amazing, but unfortunately true, story of the way the exclusionary rule worked just a few years ago:

When the battered and burned body of Sandra Boulware was discovered in a vacant lot in Boston, police began the search for her killer and their inquiries led to Osborne Sheppard. Because it was Sunday and the local court was closed, police could not find the correct form to apply for a warrant to search Sheppard's residence. They used instead an application for a search for controlled substances. The police officer who applied for the warrant and the judge who signed the warrant crossed out words and inserted words in an effort to perfect the form, however the reference to "controlled substances" was not deleted. The police searched Sheppard's residence and found evidence that showed that he was the killer, but that search, even though it was authorized by a warrant signed by a judge, was thrown out of court because the wrong form was used! Fortunately, this unreasonable result was reversed by the Supreme Court when it carved out a long-overdue exception to the exclusionary rule and applied it in this case, Massachusetts v. Sheppard, 468 U.S. 981 (1984).

The exception was created by the Court in United States v. Leon, 468 U.S. 897 (1984), which was decided the same day as Sheppard. The Leon exception permits the introduction of evidence seized in good faith reliance on a warrant that subsequently proves defective. Leon helps (and S. 1970 seeks to codify it), but there is still the problem of good faith searches made without warrants, for example where a police officer detains a suspect and pat-searches him or stops a car and looks into it (and S. 1971 seeks to provide a statutory exception for warrantless searches made in good faith).

The cost of the exclusionary rule is a matter of dispute. Friends of the rule conclude that "[t]he rule does not in fact significantly impede the police. . . . " Levy, op. cit. at 664. Opponents see things in a different light: A decade ago, an estimated 45,000 to 55,000 felony and serious misdemeanor cases were dropped because of problems created by the exclusionary rule. Drug cases are particularly hard hit by the rule. In one study, about 30 percent of all felony drug arrests were rejected by

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prosecutors because of search and seizure problems. S. Rpt. 98-350 at 14. And the rule does not lack opponents : 3

"The harshest criticism of the rule is that it is ineffective. It is the sole means of enforcing the essential guarantees of freedom from unreasonable arrests and searches and seizures by law enforcement officers, and it is a failure in that vital task.

"The use of the exclusionary rule imposes excessive costs on the criminal justice system. It provides no recompense for the innocent and it frees the guilty. It creates the occasion and incentive for large-scale lying by law enforcement officers. It diverts the focus on the criminal prosecution from the guilt or innocent of the defendant to a trial of the police. Only a system with limitless patience with irrationality could tolerate the fact that where there has been one wrong, the defendant's, he will be punished, but where there have been two wrongs, the defendant's and the officer's, both will go free. This would not be an excessive cost for an effective remedy against police misconduct, but it is a prohibitive price to pay for an illusory one." D. Oaks, "Studying the Exclusionary Rule," 37 U. Chicago L. Rev. 1361, --- (1970), cited in Levy, op. cit. at 665.

The question is not whether 4th Amendment rights ought to be enforced; the question is whether setting criminals free is the best method of enforcing them. In what is certain to become a classic criticism of the exclusionary rule, Judge Malcolm Richard Wilkey wrote:
"[T]he penalty [of the exclusionary rule] is administered with a sense of proportionality reminiscent of those medieval penal systems that prescribed capital punishment for everything from pickpocketing on up. The rule falls mercilessly on evidence deemed to have been seized unconstitutionally, without regard for the gravity of the police misconduct or the seriousness of the crime of which the defendant has been charged. Even if the policeman's actions were only marginally in violation of the Constitution despite his good faith while the criminal is guilty of rape and murder, still the evidence stays out. Such a disproportion would be regarded as barbaric if used to deter crime; ironically, employed to deter the police many apparently consider it "progressive." "Enforcing the Fourth Amendment by Alternatives to the Exclusionary Rule," quoted in S. Rpt. 98-350, 98th Cong., 2d Sess. 16

Footnotes:
3 Benjamin Cardozo, then sitting on the New York Court of Appeals, penned perhaps the most pithy (and quoted) explanation of the rule: "The criminal is to go free because the constable has blundered." People v. DeFore, 150 N.E. 585, 587 (1916). The Court replied to Cardozo in Mapp v. Ohio: "In some cases [the criminal will go free]. But . . . 'there is another consideration -- the imperative of judicial integrity.' The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. . . . " 367 U.S. at 659 (citations & footnote omitted).

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(1984) (emphasis added).

"The most shocking thing about the position of exclusionary rule proponents is the blithe assumption that a rule of evidence which excludes the most valid, unquestioned, convincing evidence against the accused, and frequently results in setting him free in spite of his obvious guilt, is somehow a normal method of administering justice. Proponents of the rule never face up to the issue that, if there is a choice of remedies to enforce the Fourth Amendment (and there is), the burden of justifying this extraordinary exclusion of evidence and costly result of setting the guilty free is on the proponents of such an evidentiary rule." Id. at 13-14 n. 64.

In James Q. Wilson's book, Crime & Public Policy, Steven R. Schlesinger, former Director of the Bureau of Justice Statistics and a leading scholar on the exclusionary rule, gives 11 reasons why the exclusionary rule cannot be justified:

1. A substantial number of otherwise convictable persons escape prosecution or conviction because of the operation of the rule.
2. The rule often impedes the truth-finding function of our courts by excluding the most credible evidence -- fingerprints, guns, narcotics, or dead bodies.
3. The exclusionary rule benefits only the guilty; it offers nothing -- no help, remedy, or protection, and no compensation -- to the innocent. A fundamental purpose of criminal law is to help the innocent.
4. The rule undermines public respect for the legal and judicial system. One complaint about the legal system is that too many truly guilty suspects are released on technicalities. In fact, this complaint most often refers to the operation of the exclusionary rule.
5. Both the suppression hearings and the appellate litigation made necessary by the rule are a significant drain on the limited resources of the courts. According to a GAO study, exclusion was the most important single issue arising most frequently in federal criminals trials.
6. The rule deprives the innocent of adequate due process. The exclusionary rule literally buys what little Fourth Amendment protections it affords at the cost of fewer and less adequate trials for criminal defendants.
7. The rule encourages judges to condone dubious or illegal searches and seizures in order to admit evidence they are loath to exclude.
8. The rule does not distinguish between more and less serious crimes; the same rule releases both the pickpocket and the murderer.

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9. The rule makes no distinction between willful, flagrant violations by an officer and "good faith" errors committed in difficult circumstances. [This problem has been solved in part by United States v. Leon, supra.]
10. Internal disciplinary efforts by law enforcement authorities are sabotaged by the rule. Law enforcement agencies will be discouraged from meting out internal discipline if their findings are used to suppress evidence at trial.
11. The rule intensifies plea bargaining because prosecutors who fear suppression of important evidence are more willing to negotiate over the seriousness of the charge or penalty.
In the 98th Congress, the Senate passed the Exclusionary Rule Limitation Act (S. 1764, accompanied by S. Rpt. 98-350) by a vote of 63-to-24. (88 percent of Republicans and 54 percent of Democrats supported the bill.) The bill would have allowed admission of evidence if it was obtained in a search and seizure "undertaken in a reasonable, good faith belief that it was in conformity with the fourth amendment to the Constitution. . . . " That bill died in the House Judiciary Committee, as so many criminal reforms do. Two years later, however, on September 11, 1986, the House Judiciary Committee was surmounted when Congressman Dan Lungren brought his "good faith exceptions" amendment directly to the House floor where it was adopted by a vote of 259-to-153. The amendment was dropped from the final version of the bill, however, because of a threatened filibuster in the Senate.

(Title III of S. 1970 (Biden))
Title III of S. 1970 provides that evidence that is obtained "as a result of a search or seizure [that was] carried out in reasonable reliance on a warrant issued by a detached and neutral magistrate [but which was] ultimately found to be invalid" shall not be excluded from a court proceeding on the ground that the search or seizure violated the Fourth Amendment. Note that the Biden proposal is limited to searches and seizures conducted under authority of a warrant -- albeit a warrant that ultimately proves invalid. The general rule does not apply if the magistrate (1) was materially misled by false information, (2) did not conduct a neutral and detached review, (3) could not have reasonably believed that probable cause existed, or (4) issued a warrant so facially deficient that the executing officers could not reasonably presume its validity.

Title III is said to codify the decision of the U.S. Supreme Court in United States v. Leon, 468 U.S. 897 (1984). Title III is identical to a provision that passed the Senate in 1988.

The Department of Justice opposes the Biden proposal:
"The limited proposal in Title III of S. 1970 for warrant cases

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would be pointless and counterproductive, even if it were an accurate codification of the Leon rule. Leon is already the law, and the Supreme Court should be left free to consider broader applications of Leon's objective reasonableness ("good faith") standard unhampered by legislation that attempts to freeze the status quo.

"[T]he purported "codification" of Leon in Title III is substantially narrower than the actual Leon "good faith" exception, and is subject to various interpretive problems and serious deficiencies in drafting. It would be unacceptable, even if there were some legitimate purpose to be served by codifying Leon at this point." Letter to Hon. Strom Thurmond from Hon. Dick Thornburgh, Mar. 15, 1990, pp. 8, 10 (footnote omitted).

(Title III of S. 1971 (Thurmond))
The Thurmond bill provides that evidence that is obtained "as a result of a search or seizure [that was] undertaken in an objectively reasonable belief that it was in conformity with the fourth amendment" shall not be excluded from a court proceeding on the ground that the search or seizure violated the Fourth Amendment, and a showing that the evidence was obtained pursuant to a warrant constitutes prima facie evidence of such objectively reasonable belief unless the warrant was obtained through intentional and material misrepresentation. Note that the Thurmond proposal applies to searches and seizures conducted with or without a warrant -- although a warrant raises a presumption in favor of the officer's actions. Additionally, S. 1971 provides that no evidence that is otherwise admissible shall be excluded from Federal court on the ground that the evidence was obtained in violation of a statute, rule of procedure, or regulation unless a statute or rule of procedure specifically provides that such evidence shall be excluded.

(Title V of S. 1225 (President))
Title V of S. 1225 is substantially identical to Title III of S. 1971.

FIREARMS
Constitutional Capsule
"However controversial the meaning of the Second Amendment is today, it was clear enough to the generation of 1789. The amendment assured to the people 'their private arms, ' said an article which received James Madison's approval and was the only analysis available to Congress when it voted. Subsequent contemporaneous analysis is epitomized by the first American commentary on the writings of William Blackstone. Where Blackstone described arms for personal defense as among the 'absolute rights of individuals' at Common Law, his eighteenth-century American editor commented

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that this right had been constitutionalized by the Second Amendment. Early constitutional commentators, including Joseph Story, William Rawle, and Thomas M. Cooley, described the amendment in terms of a republican philosophical tradition stemming from Aristotle's observation that basic to tyrants is a 'mistrust of the people; hence they deprive them of arms. ' Political theorists from Cicero to John Locke and Jean-Jacques Rousseau also held arms possession to be symbolic of personal freedom and vital to the virtuous, self-reliant citizenry (defending itself from encroachment by out-laws, tyrants, and foreign invaders alike) that they deemed indispensable to popular government."

"Interpreting the Second Amendment as a guarantee of an individual right does not foreclose all gun controls. The ownership of firearms by minors, felons, and the mentally impaired -- and the carrying of them outside the home by anyone-may be limited or banned. Moreover, the government may limit the types of arms that may be kept; there is no right, for example, to own artillery or automatic weapons, or the weapons of the footpad and gangster, such as sawed-off shotguns and blackjacks. Gun controls in the form of registration and licensing requirements are also permissible so long as the ordinary citizen's right to possess arms for home protection is respected." Don B. Kates, Jr., "Second Amendment" in Encyclopedia of the American Constitution 1639, 1640.

(Title IV of S. 1970 (Biden))
Title IV of S. 1970 contains (with only minor, technical changes) the provisions of S. 747 (the Anti-Drug Assault Weapons Limitation Act) as reported by the Committee on the Judiciary (S. Rpt. 101-160). S. 747 was reported on July 20, 1989 by a vote of 7 (all Democrats) to 6 (one Democrat and five Republicans).

Under the proposal, a private individual may not transfer, import, transport, ship, or receive fourteen named "assault weapons" (falling within nine categories) for a period of three years. "These nine types of listed firearms are those most traced by the [Bureau of Alcohol, Tobacco and Firearms], are identified by law enforcement representatives as being the firearms commonly encountered in drug raids, and are firearms with a limited, or non-existent, sporting purpose." S.Rpt. 101-160 at 9. The President already has banned the importing of certain semiautomatic weapons. The Secretary of the Treasury may recommend to Congress that other firearms be added to the prohibited list; the Secretary may not add to the list unilaterally. Any person carrying or using an "assault weapon" during a crime of violence or drug trafficking crime shall be sentenced to an additional 10 years of imprisonment. Persons now owning "assault weapons" must fill out certain forms and transfers must be documented. (The Minority Report calls these requirements "subtle registration.") Knowing failure to properly register an "assault weapon" can disqualify a person from lawfully possessing or transporting or receiving any firearm or ammunition. The Department of Justice is to conduct a study of the effect of the "assault weapons" limitation on violent crime and drug related crime.

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The proposal establishes a mandatory minimum penalty of two years imprisonment for theft of a firearm and establishes a new offense for smuggling firearms with the intent to engage in drug trafficking or violent crime. A person under Federal supervised release (where the court has
required that the person not possess any firearm) shall have his release revoked for possessing a firearm.

Senators Thurmond, Hatch, Simpson, Grassley, and Humphrey filed Minority Views. Excerpts follow:
"Over the last several years we have witnessed a steady attack on the second amendment rights of law abiding Americans. For the most part, these attacks, often in the name of reducing crime, have focused on the availability of and access to handguns. In the 101st Congress, those opposed to the right to bear arms have shifted gears. With the introduction of S. 747 and similar legislative proposals, Congress finds itself confronted with an attack on the right to possess semiautomatic long arms. For dramatic effect, the semiautomatic firearms under attack are being referred to as 'assault weapons.' Regardless of terminology, S. 747, which will not have any real impact in reducing the number of violent crimes, represents another attempt to infringe on the constitutional right to keep and bear arms, and we therefore oppose the bill.

"While we agree that this bill, if enacted into law, would reduce the number of these firearms available to law-abiding citizens, we do not believe that it will restrict access to them by drug traffickers and violent criminals. . . . It . . . seems highly likely that a drug trafficker who is able to smuggle large amounts of illegal drugs into the country will have little difficulty in obtaining these weapons by illegal means. . . . "

(Title IV of S. 1971 (Thurmond))
Senator Thurmond's bill contains some of the same provisions that are found in the Biden bill, e.g., enhanced and mandatory penalties for use of a semiautomatic firearm during commission of a crime, prohibition of firearms smuggling with respect to violent crime or drug-related crime, and mandatory revocation of supervised release for carrying a firearm. Title IV of S. 1971 also contains a number of technical and clarifying amendments. Perhaps the most significant new proposals are those that (in section 406) would make juveniles who commit serious drug offenses subject to minimum and mandatory penalties as career criminals (if they have three previous convictions) and that (in section 408) provides for pretrial detention for persons who are charged with certain firearms or explosive offenses.

(Titles I and III of S. 1225 (President))
Title I of S. 1225 is identical to Title IV of the Thurmond bill.

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Title III of S. 1225 "is designed to place severe restrictions on certain ammunition clips and other ammunition feeding devices frequently used with "assault weapons" to enable them to fire a large number of rounds without reloading." 135 Cong. Rec. S 7274 (daily ed. June 22, 1989).

MONEY LAUNDERING (Title V of S. 1970 (Biden))
About one-half of Title V of S. 1970 was passed by the Senate last fall as part of S. 1711 (primarily in Title XII). By and large, Title V contains technical and conforming amendments to various money laundering statutes. Additionally, section 501 requires the Secretary of the Treasury to report to Congress on the use of reports that the law requires for certain financial transactions, and section 502 creates a taskforce to study methods of printing serial numbers on U.S. currency that can be read by electronic scanning. The Department of the Treasury opposes some of the provisions because they will impose an unnecessary administrative burden.

DEPARTMENT OF JUSTICE REORGANIZATION (Title VI of S. 1970 (Biden))
Senator Biden explained this title as follows: "Title VI creates within the Department of Justice a new Organized Crime and Dangerous Drugs Division. The purpose of the reorganization . . . is to centralize and expand the federal law enforcement effort against high level drug traffickers, to combine the anti-drug law enforcement effort with the effort against traditional organized crime, to raise the level of attention given to civil enforcement and asset forfeiture, and to increase the Justice Department's ability to handle matters like international drug trafficking that involve relations with foreign governments and crimes that cross national boundaries." 135 Cong. Rec. S 16735 (daily ed. Nov. 21, 1989).

The Department of Justice is strongly opposed to the reorganization proposal, as is

"The Director of the Office National Drug Control Policy, who was commissioned by Congress to study such a reorganization, [and] has recommended against it. He noted that the creation of such a Division would require an inefficient and counterproductive duplication of administrative efforts. Specifically, Director Bennett concluded:

"'A new Division would add yet another element of bureaucracy to the drug enforcement effort within the Justice Department. That, in our view, would be a significant drawback. Four of the principal organization components of the Department that are directly involved in, or supportive of drug-related prosecution efforts, are in the Criminal Division. That Division is where those components are best placed to support the U.S. Attorneys and

24

the other demands from within the Department. The establishment of a new division is not necessary and would not, by itself, enhance the civil and criminal law enforcement effort.'" Letter to Hon. Strom Thurmond from Hon. Dick Thornburgh, Mar. 15, 1990, p. 12.

DRUG TESTING BEFORE RELEASE
(Title V of S. 1971 (Thurmond))
(Title IV of S. 1225 (President))
S. 1971 requires the Administrative Office of the U.S. Courts to establish "as soon as is practicable" a program for drug testing of criminal defendants on post-conviction release and further requires the chief probation officer "in each district where it is feasible to do so" to arrange for the drug testing of defendants on post-conviction release after being convicted of a felony or certain firearms offenses, drug offenses, or crimes of violence. Further, as a condition of probation for any of the offenses listed above, a defendant must refrain from any unlawful use of a controlled substance and must submit to periodic drug testing. Similar requirements are set out for any supervised release or parole.

Title IV of S. 1225 appears to be identical to Senator Thurmond's bill.

PUBLIC CORRUPTION (Title VI of S. 1971 (Thurmond))
The provisions of Title VI, the "Anti-Corruption Act of 1989," passed the Senate in 1988 and again in 1989 (Title IV of S. 1711 which the Senate passed on October 5, 1989). The first part of the Act restores the power of Federal prosecutors to bring criminal charges against persons who corrupt State or local officials or the election process. This part is a response to McNally v. United States, 483 U.S. 350 (1988), which limited the use of mail and wire fraud statutes. The second part of the Anti-Corruption Act makes it a Federal offense for any person to corrupt a law enforcement officer in connection with drug activity.

UNDERCOVER OPERATIONS
(Title VII of S. 1971 (Thurmond))
For any offense where the prosecution must establish as an element of a crime that (1) property was embezzled, stolen, altered, etc. and (2) the defendant knew the property was embezzled, stolen, altered, etc., Title VII of S. 1971 would allow such element to be established by proof that the defendant believed the property to be embezzled, stolen, altered, etc. "after or as a result of" a representation by a Federal law enforcement officer or another person acting at the direction of or with the approval of

25

such officer. In short, if a Federal undercover operative represents to a person that certain property is stolen (and the person believes the operative) then a judge or jury may rely on that representation to establish that the property was stolen and the person knew it. This provision is intended to facilitate the use of "sting" operations against persons who buy or sell stolen or counterfeit property. The provision responds to a few recent court cases in which theft charges were dismissed because the property that the defendants were trafficking in was not actually purloined (although they thought it was) but was lawfully held property being used in a "sting" operation.

POSSIBLE AMENDMENTS
Senator Specter has introduced five printed amendments to S. 1970 or S. 1972: Amendment no. 1249 (Feb. 7) establishes a penalty with a minimum of one year in prison and a maximum of five years in prison and a $10,000 fine for lying or deceiving Congress or one of its committees . The penalty can be avoided if the violator provides the truth within five days. Amendment no. 1316 (Mar. 7) allows access to certain grand jury proceedings by Congress or its representatives when the proceedings contain something "directly related to congressional oversight of Federal law." Amendment no. 1374 (Mar. 26) attempts to strengthen the Federal Government's ability to enforce criminals laws particularly in drug-related crimes by authorizing the appointment of additional Federal magistrates. Amendment no. 1622 (May 15) deals with habeas corpus procedures in capital cases. Amendment no. 1663 (May 18), which was not available at press time, is reported to be a habeas amendment, as well.

Senators Inouye and McCain (separately) have expressed an intent to restrict the application of capital punishment laws on Indian reservations. (Generally, the consent of the tribe would be necessary before the laws would be in effect on reservation lands.)

Senator Gramm (and others) introduced S. 2245, the National Drug and Crime Emergency Act, on March 7, 1990. The terms of S. 2245 may provide a number of amendments to S. 1970 or S. 1972.

Staff contact, Lincoln Oliphant, x4-2946

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LEGISLATIVE NOTICE
Editor, Judy Myers

May, 21 1990
Notice #77 (Update)

U.S. SENATE REPUBLICAN POLICY COMMITTEE
William L. Armstrong, Chairman

Update ... Update ... Update ... Update ... Update ... Update ... Update ... Update ... Update

ADMINISTRATION POSITION
If S. 1970 were presented to the President without addressing satisfactorily the Administration's concerns, the President's senior advisers would recommend that the bill be vetoed.

S. 1970 would undermine effective use of the death penalty, vitiate the habeas corpus reform proposals advanced by the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases of the Judicial Conference (the Powell Committee), narrow an important existing exception to the exclusionary rule, and disrupt and damage the Justice Department's drug enforcement efforts. The Administration urges, instead, that Congress pass the President's violent crime control legislation incorporated in S. 1225 and S. 1971.

The Administration's principal objections to S. 1970 are addressed below.

-- Death Penalty. Title I would establish, in effect, an irrebuttable presumption of "discrimination" based on a failure to achieve specific numerical proportions in the imposition of the death penalty. The likely result would be the invalidation of every death sentence now in effect and preclusion of all future use of capital punishment at both the State and Federal levels. Title I also raises profound constitutional concerns because it would promote the consideration of race in capital cases on a systematic basis.
-- Habeas Corpus. Title II, relating to death penalty litigation, proposes procedures which would systematically overturn Supreme Court decisions that safeguard the finality of criminal judgments. It also would eviscerate the central recommendation of the Powell Committee -- appropriate limits on second and successive habeas corpus petitions in capital cases. The bill would broadly permit a capital defendant to raise claims in Federal habeas corpus proceedings that were not raised before the State courts. It would also permit a capital defendant to delay a full year before applying for Federal habeas corpus. Furthermore, S. 1970 does not contain the President's proposals addressing the abuse of habeas corpus in non-capital cases. Thus, convicts could continue to attack their convictions and sentences for years or even decades after the conclusion of normal State proceedings.
-- Exclusionary Rule. Title III fails to extend the "good faith" exception to the exclusionary rule to cases involving warrantless searches and seizures. Indeed, it takes a step backward by narrowing

2

the existing "good faith" exception for searches under warrants, and presents serious interpretive problems as well. A fully general reasonableness ("good faith") exception, applicable to both warrant and non-warrant cases, was passed by the Senate in the 98th Congress. Comparable proposals are now included in the President's violent crime control bill and S. 1971.
-- Assault Weapons. Title IV provides a more burdensome, yet significantly less effective, firearms enforcement scheme than that proposed by the President. It involves only limitations on nine specified types of "assault weapons" and does not attempt to control the firepower of other similar firearms. It would also provide less certainty of punishment for the illegal use of weapons by violent felons and drug traffickers than would S. 1225.
-- Justice Department Reorganization. Title VI would establish an "Organized Crime and Dangerous Drug Division" in the Justice Department. Such a reorganization would disrupt the Department's operations and impair its ability to combat effectively violent crime and drug trafficking. New and duplicative bureaucracies are not the solution to drug crimes.

SEN. JOHN WARNER HOSTS
VIRGINIA WOMAN '90s
June 11, 1990 . Hyatt Richmond . Richmond, Virginia

SEN. JOHN WARNER HOSTS
VIRGINIA WOMAN '90s

Dear Friend,
Due to the overwhelming success of the first annual VIRGINIA WOMAN '90s conference held last year, I am pleased to present the second annual VIRGINIA WOMAN '90s on June 11, 1990, at the Hyatt House in Richmond.

Our ever-changing society has provided an atmosphere for unlimited opportunity for many women. In some instances, however, women have found themselves blocked by almost insurmountable obstacles.

VIRGINIA WOMAN '90s will provide an atmosphere where women can assist one another in welcoming these opportunities, defining their goals and overcoming the individual obstacles that may stand in the way of attaining those goals. Your attendance and your active participation are the keys to a successful conference. Whatever your goals may be today or tomorrow, this conference is to help make them possible.

I am pleased to announce that this year's keynote speaker is Mrs. Marge Schott. Marge is the CEO and Owner of the Cincinnati Reds baseball team. She is a shining example of a woman who has become a success in the non-traditional roles assumed by women today.

The workshop leaders will share their insights, provoke thought, offer guidance, answer questions and stimulate conversation. Our program will feature national speakers as well as prominent, local women, but no participant will be more important than you.

Please take a moment to look over the brochure and plan to join me and many others on June 11. I am looking forward to an exciting conference and hope to see you there.

Sincerely,
(signature)
John Warner

P.8. All indications are we will have a sell-out, so mail your registration early!

Images of Sen. John Warner and Mrs. Marge Schott on right side of page

PREPARED, PUBLISHED & MAILED AT TAXPAYER EXPENSE

SEN. JOHN WARNER HOSTS
VIRGINIA WOMAN'90s

WORKSHOP TOPICS
· The Art of Negotiating
· Assertiveness Skills
· Give Yourself Credit - Laws of Financial Management
· Home Based Business
. How to Speak 80 Others Will Listen
· Juggling Career, Family and Self
· Positively, Positive Days
· Teaching Children Self-Esteem
· Time Management
· What You Don't Know Can Hurt You - Know Your Legal Rights
· When Others Care for Your Children
· Who Gets Ahead and Why

June 11, 1990
CONFERENCE OUTLINE
8:00 a.m...................................................Registration
8:30 a.m...................................................Welcome and Opening Remarks Senator John Warner
9:15 a.m...................................................Workshop Session I
10:15 a.m.................................................Workshop Session II
11:15 a.m.................................................Workshop Session III
12:15 p.m................................................Luncheon
1:00 p.m..................................................Keynote Address Marge Schott, Conference Wrap-Up Senator John Warner
2:00 p.m..................................................Workshop Session IV Networking Time

REGISTRATION FORM
SEN. JOHN WARNER HOSTS
VIRGINIA WOMAN `90S

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Enclosed is a check or money order for (blank) registration(s). (Please include names, addresses, and phone numbers of other attendees).

Registration is $25.00 per person. Cost includes lunch and conference materials. Registration is on a first-come, first-served basis. Five days cancellation notice required for refund.

Please make check payable to Virginia Woman `90s. Mail check or money order and registration form to:
Virginia Woman `90s
918 16[th] Street, NW
Mezzanine Suite
Washington, DC 20006

Presented by A Woman's Education and Leadership Forum

SPONSORS:
CSX Corporation
IBM Corporation
Textron

FRIENDS:
Circuit City Stores, Inc.
Douglas Fleet
Ethyl Corporation
Solite Corporation
Ukrop's Super Markets, Inc.
Xerox Corporation

SCHEDULE FOR THE WEEK OF MAY 21, 1990

TODAY, TUESDAY, MAY 22
THE SENATE WILL RECONVENE AT 2:15 P.M. AND RESUME CONSIDERATION OF THE CRIME BILL. VOTES CAN BE EXPECTED TO OCCUR DURING TODAY'S SESSION OF THE SENATE. HOWEVER, A LATE SESSION IS NOT ANTICIPATED.

WEDNESDAY, MAY 23
RESUME CONSIDERATION OF THE CRIME BILL. VOTES CAN BE EXPECTED TO OCCUR DURING WEDNESDAY'S SESSION OF THE SENATE. THE MAJORITY LEADER HAS ANNOUNCED HIS DESIRE TO TRY TO COMPLETE ACTION ON THE CRIME BILL THIS WEEK, IF AT ALL POSSIBLE. THEREFORE, A LATE SESSION COULD OCCUR, IN ORDER TO MAKE PROGRESS ON THE CRIME BILL.

THURSDAY, MAY 24
RESUME CONSIDERATION OF THE CRIME BILL. VOTES WILL OCCUR. ALSO, IT IS ANTICIPATED THAT THE SENATE WILL CONSIDER THE CONFERENCE REPORT TO ACCOMPANY THE SUPPLEMENTAL APPROPRIATIONS FOR PANAMA, ONCE RECEIVED FROM THE HOUSE. THEREFORE, A LATE SESSION IS ANTICIPATED IN ORDER TO COMPLETE ACTION ON THE AID TO PANAMA PACKAGE, AND THE CRIME BILL.

FRIDAY, MAY 25
THE MEMORIAL DAY RECESS IS SCHEDULED TO BEGIN ON FRIDAY OF THIS WEEK. HOWEVER, THE MAJORITY LEADER HAS INDICATED THAT IF THE SENATE IS CLOSE TO DISPOSING OF THE CRIME BILL, IT MAY BE NECESSARY FOR THE SENATE TO BE IN ON FRIDAY. IF THE RECESS IS ALTERED IN ANY WAY, YOU WILL BE SO NOTIFIED BY WAY OF THE HOTLINE SYSTEM.

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NOTE:
THE NATIONAL GEOGRAPHIC PICTURE OF THE 101ST CONGRESS WILL BE TAKEN ON TUESDAY, JUNE 12, 1990, AT 2:15 P.M. ALL SENATORS ARE ASKED TO BE IN THEIR SEATS ON THE FLOOR, SO THAT THE PICTURE CAN BE TAKEN ON TIME.

Entire page handwritten:
I asked the folks from the Fraternal Order of Police from the Kansas City and Wichita Chapters
whether they supported the De Concini proposal.

Both Chapters voted against.

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