This has been a frenetically paced six months for NACDL's legislative program. So many members and staff have tried to stem the Republican tidal wave of reactionary, oppressive and ill-advised legislation. Unfortunately, it often seems as if there is no end in sight.

One bright spot for NACDL in the legislative arena is the addition of Ms. Leslie Hagin as our legislative director. Leslie has already proven herself to be knowledgeable on legislative issues, a tireless worker, a motivator, and someone who not only talks about getting something done, but also does it!

NACDL's Fourth Annual Legislative Fly-In

Under Leslie's capable stewardship, we have formulated some great plans for the Fly-In, including some impressive speakers and award honorees. It is time to make plans to attend, particularly as to the appointments with members of Congress, to be scheduled by NACDL's State Legislative Coordinators.

The Fly-In will be held June 14-15, at the Hyatt Regency on Capitol Hill. Wednesday, June 14, we will conduct a full day of issues briefing on all important issues, including both those which are the subject of pending legislation, and the topics on our affirmative "wish list," which have had to take somewhat of a back seat so far this year due to the Republican congressional agenda.

The Congressional Reception will be held 5:30 to 7:30 on Wednesday evening on Capitol Hill. At the reception, NACDL will present the Lifetime Achievement Award to Ramsey Clark, and the Champion of Justice Award to Congressman John Conyers, Jr. (D.-MI). Representative Pat Schroeder (D.-CO) will be one of our speakers.

On Thursday morning, June 15, the day will begin at 8:30 with an address by Ramsey Clark. We will then proceed with our congressional appointments from 9:00 to 3:30, followed by a debriefing session at the Hyatt from 3:30 to 5:00.

We are hoping for a record turnout this year. We need it. Because of the pending and proposed Draconian legislation, and its would-be devastating effect on constitutional rights, we must make ourselves heard as never before. We hope that as NACDL members and supporters, you will both join us in Washington, and encourage others in your home communities to attend. A synopsis of the nature and status of the proposed and pending legislation follows.

Proposed and Pending Legislation

The Republican crime bill, called the "Taking Back Our Streets Act" (T.B.O.S.A.), which was part of the Republican promised "Contract with America," overwhelmingly passed the House of Representatives, with the exception of the repeal of the Assault Weapons [*57] Ban and the federalization of state street crime involving guns (through the creation of new mandatory minimum sentences), which House Speaker Newt Gingrich (R.-GA) managed to separate from the remainder of the crime bill for later consideration.

Consideration of the repeal of the Assault Weapons Ban and the new mandatory minimum sentences were to occur in May. However, it is possible that it will be deferred further given the Senate's current consideration of its proposed crime legislation (including anti-terrorist measures) and the Oklahoma City bombing. The Court's Lopez decision also complicates the gun plans.

In summary, the T.B.O.S.A. provisions that passed the House were those curtailing the exclusionary rule to allow the admission of evidence seized in warrantless searches if the officer acted in "good faith;" imposing severe restrictions on habeas corpus petitions; eliminating all drug prevention funding and the establishment of drug courts included in last year's crime bill (Violent Crime Control and Law Enforcement Act of 1994); mandating restitution for direct and indirect victims of crime, regardless of the offender's ability to pay; restricting prisoner lawsuits; and authorizing $ 10 billion dollars for building more prisons to house violent offenders, while disallowing funds to build alternative correctional facilities.

Senators Dole (R.-KS) and Hatch (R.-UT) have introduced their version of T.B.O.S.A. in the Senate (S. 3). Senators Spector and Hatch have also offered S. 623, specifically addressing habeas corpus "reform." According to NACDL Legislative Committee Co-Chair Elisabeth Semel, its provisions are substantially similar to H.R. 729 and S. 3, creating strict time limits for filing and deciding federal habeas petitions and greatly decreasing the likelihood of evidentiary hearings in district court. Unlike S. 3, the Spector-Hatch "compromise" would not eliminate 21 U.S.C. § 848(q) funding for federal habeas.

Among the low points of S. 3 are: the abolishment of the Fourth Amendment Exclusionary Rule and the creation in its stead of a tort claim with a cap of $ 30,000 in almost all cases; the almost complete evisceration of habeas relief; an increase in mandatory minimum offenses; the complete exemption of federal prosecutors from ethical rules other than those adopted by the Attorney General, and allowance of contact by federal prosecutors and agents with opposing parties known to be represented by counsel; the creation of a new obstruction of justice offense for attorneys; the shifting of the burden of proof in cases involving an alleged involuntary or coerced confession, from the prosecution to the defendant; further restrictions on the application of the mandatory minimum safety valve; and the mandatory treatment of juveniles 13 and over charged with violent crimes as adults (with no opt-out provisions for Native Americans on reservations).

Status of Legislation

As stated, all of the TBOSA provisions except for the new mandatory minimum gun offenses passed the House easily. Hearings have been conducted on some of the Senate proposals.

On March 7, the Senate Judiciary Committee held a hearing on Confessions and the Fourth Amendment Exclusionary Rule (Section 507 of S. 3). NACDL, through a joint drafting effort by President Gerry Goldstein, Leslie Hagin, Paul Levine, Paul Petterson, Elisabeth Semel, Jeralyn Merritt and John Flannery, submitted written testimony in opposition to the proposals (and its House counterpart, H.R. 666).

On March 28, the Senate Judiciary Committee held a hearing on proposed habeas bills (S. 3 and S. 623, H.R. 729). Again, NACDL prepared and provided written testimony in opposition to the legislation.

On April 6, the House Judiciary Committee held its first "general" hearing on terrorism and the first proposed anti-terrorism bill (H.R. 896). NACDL, through President Gerry Goldstein, submitted a lengthy written statement for the record and asked to testify at future House and Senate Judiciary Committee hearings on the Senate version of the proposed legislation. The proposals are the Clinton administration's Omnibus Counterterrorism Act of 1995 (H.R. 896, S. 390); Title VI of S. 3; and Senator Dole's S. 735 (which contains the Republicans' "habeas reform" package.) By the time you read this, House Judiciary Committee Chair, Hyde (R-IL) and Rep. McCollum (R-FL) will have introduced their own international and domestic terrorism bill, essentially akin to the administration's international and domestic proposals.

NACDL has suggested in its written statement that a more appropriate name for the anti-terrorism proposals would be the McCarthyism, Korematsu and Star Chamber Renewal Act. All of these proposals contain massive assaults on the Bill of Rights, and would inflict more damage on constitutionally protected liberties than any other legislation in recent memory.

While NACDL was not provided an opportunity to speak at the April 27 and early May hearings on terrorism before the Senate and House Judiciary Committees, President Goldstein did submit another detailed written statement in opposition for the record.

Hearings have not been scheduled on Sections 501 and 502 of S. 3, providing for the exemption of federal prosecutors from state and local ethical rules, and making it a criminal offense (obstruction of justice) for a lawyer to "knowingly" make a "false" statement of law or fact in a pleading. NACDL has submitted written opposition to these provisions, and is requesting a hearing and permission to provide testimony regarding them.

On May 11, the House Appropriations Committee held a hearing on funding for indigent defense services. Paul Petterson and Leslie Hagin were successful in obtaining an invitation for NACDL to testify. Indigent Defense Committee Co-Chair Rick Kammen testified, and a written statement was submitted. Word is that Judiciary Committee Chair Orrin Hatch is drafting a new primary Senate Crime bill; NACDL pressure needs to be applied there through Counsel Mike O'Neil at Fax # (202) 224-9102.

It is likely the House and Senate versions of the crime bills will go to conference around the time of the Fly-In. However, the Oklahoma bombing and President Clinton's desire to push through his anti-terrorist legislation, may delay this timetable. Finally, the House Crime Subcommittee chaired by Rep. McCollum, and the Senate Judiciary Committee chaired by Sen. Hatch will hold hearings on such abusive police cases as Waco and Ruby Ridge starting in June, in the House.

Other Legislative News

Crack Cocaine Penalty Study: On April 10, 1995, the United States Sentencing Commission voted to request permission from Congress to equalize the penalties in the Sentencing Guidelines. It also voted to recommend that Congress equalize its mandatory sentencing statutes on cocaine. The retroactivity issue was not resolved. If Congress does nothing, the revisions to the Sentencing Guidelines will become effective November 1. [Editor's Note: In Grid & Bear It in the April issue, there is a misstatement in the box labeled "Late-Breaking News." The second sentence should say, "Both would now be subject to the current penalties for powder cocaine."] It should be noted that Attorney General Janet Reno has already opposed the reductions, and the administration has introduced a bill requesting that Congress reject the independent commission's recommendations. Reps. Charles Rangel (D.-N.Y.) and Mel Watt (D.-N.C.) are valiantly pushing bills to effectuate the recommendations of the Commission.

NACDL's Affirmative Legislative Agenda: We have been continuing to push for increased CJA funding; IRS Section 8300 and forfeiture reform; creation of a federal statutory retention privilege; restitution relief for victims of forfeiture abuse and wrongful convictions; and repeal of mandatory minimum sentences.

Also, other organizations and individuals have approached us with their legislative proposals, such as those calling for early release of the elderly and terminally ill from prison (P.O.P.S.) and the creation of a project in Canada along the lines of Freeing the Innocent Imprisoned.

Copyright (c) 1995 National Association of Criminal Defense Lawyers, Inc. The Champion, June, 1995, 19 Champion 56.

National Association of Criminal Defense Lawyers (NACDL)
http://www.nacdl.org
(202) 872-8600 / FAX(202) 872-8690 / assist@nacdl.com

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