[Congressional Record Volume 140, Number 118 (Friday, August 19, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                  LET'S NEGOTIATE A BETTER CRIME BILL

                                 ______


                           HON. NEWT GINGRICH

                               of georgia

                    in the house of representatives

                       Thursday, August 18, 1994

  Mr. GINGRICH. Mr. Speaker, in light of our current effort to pass a 
crime bill, I would like to bring two items to the attention of my 
colleagues: First, an editorial from the Marietta Daily Journal, and, 
second, a letter from the National Association of Assistant U.S. 
Attorneys. The later goes right to the heart of the problems with the 
crime bill conference report in its current form. The former is 
relevant to our current debate as well as the upcoming debate on health 
care.

            [From the Marietta Daily Journal, Aug. 16, 1994]

                          Crime Bill a Warning

       The blocking of a bad crime bill by the House of 
     Representatives on Thursday was a clarifying event. Its most 
     important effect by far is to slow down the Democratic 
     leadership's rush to health reform.
       If the majority party could not corral the votes to enact a 
     $33 billion something-for-everyone crime grab bag at a time 
     when crime is on the voters' minds, it has no chance of 
     passing Majority Leader Richard Gephardt's latest version of 
     Clintoncare. That is good news for the country. An ill-
     conceived, compulsory, government-heavy, comprehensive 
     overhaul would make our health system worse.
       The crime bill--which fell 8 votes short and was opposed by 
     58 Democrats and 187 Republicans--was a perfect example of 
     undisciplined legislation, driven by polls and posturing and 
     riddled with pork.
       ``It's hard to argue it's a strong crime bill when it cuts 
     the FBI budget and the Drug Enforcement Agency budget,'' said 
     Minority Whip Newt Gingrich, R-east Cobb, who led the fight 
     against the bill.
       Still, the crime bill's effects on the budget and on 
     average people would have been minute by comparison with 
     those of a permanent universal entitlement to health 
     insurance. The legislators should take the crime bill's fate 
     as a warning on health reform: Don't do it at all if you're 
     not going to do it right.
       Specifically, avoid last-minute legislating, Republicans 
     got the final 972-page crime bill less than 24 hours before 
     the key vote. The health debate is only now shaping up. An 
     interesting bipartisan bill was introduced into the House 
     only Thursday, and the Congressional Budget Office still 
     hasn't produced its analysis even of Rep. Gephardt's plan. 
     The push to vote on health this month is unrealistic.
       Finally, legislate with good government and sound budgeting 
     in mind. On this score, the crime bill was flawed at its 
     core. Crime is a local issue, and national politicians' 
     desire to ride it does not make it Washington's business. 
     This bill mainly ignored the legitimate federal role in 
     fighting crime--the FBI, the Drug Enforcement Agency, and so 
     on--while promising to pay for local cops and neighborhood 
     amenities and state prisons with money the federal government 
     doesn't have.
       As Rep. Gingrich put it: ``The average American doesn't 
     want to see cuts in the FBI and DEA and $9 billion worth of 
     social-work spending, including money for `midnight 
     basketball leagues' and two social workers' for each new 
     police officer. That's not an anti-crime bill they wrote. 
     This so-called crime bill is weak on crime and strong on 
     social work.''
       Democrats and Republicans can work together to pass 
     essential legislation: They did it on the North American Free 
     Trade Agreement nine months ago. But even--or especially--on 
     important issues like crime and health, gridlock is 
     preferable to irresponsible action.
                                  ____

                                           National Association of


                                     Assistant U.S. Attorneys,

                                  Alexandria, VA, August 17, 1994.
     Hon. Orrin Hatch,
     U.S. Senate, Washington, DC.
       Dear Senator Hatch: The National Association of Assistant 
     United States Attorneys has as its members front-line 
     litigators. Our members represent the United States in all 
     civil and criminal matters. We are our nation's lawyers. Most 
     of our members are prosecutors who work very closely with 
     federal and local law enforcement agents.
       In 1987, Congress the Federal Sentencing Guidelines, which, 
     in part, had stiff but appropriate sentencing provisions, 
     incorporating mandatory minimum sentences for certain drug 
     traffickers. Those mandatory minimums have given our 
     prosecutors the ability to get drug dealers to cooperate by 
     forcing them to work with us in giving up their source(s) of 
     supply or face years of incarceration. When their cooperation 
     is deemed to be ``substantial'' by a committee of Assistant 
     United States Attorneys (or, in some cases, the United States 
     Attorney), their sentences may be reduced by a federal Judge. 
     In fiscal 1993, almost one-fifth of convicted defendants 
     benefited by having their sentences reduced because they 
     cooperated with law enforcement authorities. The results of 
     that cooperation led to the arrest and conviction of numerous 
     drug suppliers and their sources.
       The present Crime Bill contains a provision which not only 
     severely negate the benefits of ``mandatory minimums'' for a 
     certain class of offenders, but also would permit the filing 
     of 10,000 to 20,000 frivolous law suits which would cause 
     prosecutors to spend their time in needless litigation 
     instead of investigating and prosecuting criminals. The 
     present provision would dilute prosecutors' ability to 
     determine if a drug dealer has ``substantially'' cooperated. 
     In effect, our leverage to get to the suppliers would be 
     eliminated for certain types of drug traffickers. We cannot 
     stand idly by and allow this very effective tool to be taken 
     from us and the citizens we are sworn to protect.
       The bill's present language is intended to address low 
     level drug traffickers who are so minimally involved that 
     they cannot have their sentences reduced because they truly 
     cannot provide information or cooperation which would be 
     deemed to be ``substantial''. In some instances under 
     mandatory minimums (and the Department of Justice's 
     requirement that prosecutors had to charge the most serious 
     provable crime), some injustices occurred. We believe that 
     should be corrected. However, Attorney General Reno fixed 
     this problem some time ago by no longer requiring Assistant 
     United States Attorneys to charge the most serious readily 
     provable offense if that would result in a miscarriage of 
     justice. In addition, our Association proposed minor 
     revisions to the present bill which would codify the intent 
     to appropriately treat first time low level drug traffickers. 
     We are not opposed to these goals and objectives. We are, 
     however, very much opposed to the way the present bill 
     achieves them.
       We believe that prosecutors are in the best position to 
     determine if an individual has cooperated substantially or 
     truly has nothing to offer and therefore meets the other 
     criteria to receive a reduced sentence in accordance with 
     this bill's present language. We have proposed, therefore, 
     that in order to qualify for ``safety valve'' relief, the 
     current language be amended as follows:
       (f)(5) is hereby amended by striking the current language 
     and inserting:
       (f)(5) the government certifies that the defendant has 
     timely and truthfully provided to the government all 
     information and evidence the defendant has concerning the 
     offense or offenses that were part of the same course of 
     conduct or of a common scheme or plan.
       We urge the Committee to make the change we have proposed.
           Sincerely,
                                         Lawrence J. Leiser, AUSA,
                                                President, NAAUSA.
                                  ____


     National Association of Assistant U.S. Attorneys Policy Brief


                           mandatory minimums

       The National Association of Assistant United States 
     Attorneys represents frontline federal prosecutors, including 
     criminal narcotics prosecutors and designated Organized Crime 
     Drug Enforcement Task Force prosecutors, charged with 
     enforcing the federal narcotics laws. We are encouraged that 
     ``The Mandatory Minimum Sentencing Reform Act of 1994'', H.R. 
     3979, as amended, and adopted by the Committee on the 
     Judiciary's Crime Subcommittee, recognizes the importance of 
     limiting relief from provisions of existing mandatory minimum 
     sentences to those defendants who have made every effort to 
     provide assistance to the government.
       The proposed amendment to Section 3553 of Title 18, United 
     States Code, to create a relief mechanism from application of 
     mandatory minimum sentences in certain cases, includes the 
     criteria as set forth in paragraph (5) that the defendant has 
     provided to the government all information the defendant has 
     concerning the offense or other criminal conduct related to 
     the offense.
       While we are encouraged by the obvious recognition that any 
     relaxation from mandatory minimum application should be 
     limited to those who provide information to the government, 
     we suggest that the existing language is problematic in its 
     application. The first difficulty arises as to who is in a 
     position to determine whether a defendant has provided the 
     government all information. Only the government is able to 
     make that determination, by comparing the information 
     provided with other evidence of the case. The current 
     language would conceivably allow the defendant to self-
     servingly state ``that's all I know,'' without the government 
     being in a position to test that assertion by debriefings, 
     polygraph results, etc. In order to assist in this process, 
     the defendant should be required to provide any evidence he 
     can, in addition to information.
       Similarly, we are concerned that this relief mechanism not 
     be available to a defendant who has provided information 
     which is not truthful, or to a defendant who in providing 
     certain truthful information, nevertheless, also lies about 
     other aspects or details so as to mislead investigators or 
     obstruct the investigation.
       It also should be required that the information be timely. 
     Under the current language, a defendant who goes to trial and 
     is convicted, would presumably be able to stand up at 
     sentencing, tell the government what it has already proved, 
     and avoid the mandatory minimums under this escape provision.
       Accordingly, we seek amended language which would require 
     that the defendant must provide timely information, truthful 
     information, other evidence, and that the determination as to 
     whether a defendant has provided all this be by certification 
     by the government. Otherwise the sentencing court will be 
     inundated by litigation calling upon it to make 
     determinations it is not equipped to make.
       This is the natural complement to the existing 
     ``Substantial Assistance'' reduction mechanism currently 
     embodied under Section 3553(e) of Title 18 United States 
     Code. This provision has been responsibly applied by federal 
     prosecutors throughout the country.
       It reflects the recognition that the government is in the 
     best position to make such a determination, and provides the 
     incentive to the low-level defendant to work with the 
     government in working up the ladder to identify and target 
     higher-up drug traffickers. The current amendment properly 
     recognizes that there are simply those who are not able to 
     provide ``substantial assistance'' but who nevertheless have 
     done everything they can to assist.
       Simply put, society has a right to ask that a defendant 
     provide all that he knows. If what he knows constitutes 
     ``substantial assistance'' he will have already earned 
     relief. (18 U.S.C. 3553(e)) If it does not, and he meets the 
     other requirements of the currently proposed legislation, 
     then justice dictates that he receive a lesser sentence.
       The amended language which we have suggested (attached) 
     will assure that defendants continue to have an incentive to 
     cooperate with the United States by providing all truthful 
     information in a timely manner, while allowing those who, 
     through no fault of their own, are simply not in a position 
     to provide ``substantial assistance,'' an opportunity to 
     receive a sentence below current mandatory minimums.
       (f)(5) is hereby amended by striking--
       ``(5) no later than the time of the sentencing hearing, the 
     defendant has provided to the Government all information the 
     defendant has concerning the offense or offenses that were 
     part of the same course of conduct or of a common scheme or 
     plan. The fact that the defendant has no relevant or useful 
     other information to provide shall no preclude or require a 
     determination by the court that the defendant has complied 
     with this requirement.''
       And inserting--
       ``(5) the government certifies that the defendant has 
     timely and truthfully provided to the government all 
     information, and evidence the defendant has concerning the 
     offense or offenses that were part of the same course of 
     conduct or of a common scheme or plan.''

                          ____________________