[Congressional Record Volume 142, Number 51 (Friday, April 19, 1996)]
[Senate]
[Pages S3705-S3706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       TOUGH RHETORIC ABOUT CRIME

  Mr. THOMPSON. Mr. President, we are listening to a lot of rhetoric 
about crime and being tough on crime. But no matter how many cops we 
put on the street, no matter how many laws we pass, unless we have 
strong law enforcement efforts at the very top of the Justice 
Department and the very top of the executive branch of this Government, 
we are going to be letting out the back door whatever we are putting in 
our prison system in the front door.
  In fact, the policies of an administration are much more important 
than any other component of our law enforcement system. An 
administration's decisions as to who to prosecute, how effectively to 
prosecute, what cases to appeal, and what positions to take, affect 
thousands and thousands of cases. They affect not only the specific 
cases that are brought but maybe even can determine what cases are 
brought in the future.
  In other words, an administration needs to be strong in its law 
enforcement position. It needs to advocate the legitimate interests of 
the Federal Government, when Federal criminal statutes are involved. 
The President has engaged in strong law enforcement rhetoric. The 
President states that he is for the death penalty. But it is my 
unfortunate duty to report that the rhetoric does not match the action.
  I am specifically referring to the actions of the Solicitor General. 
The Solicitor General in this country is the Government's lawyer. The 
Solicitor General advocates the Government's position before the 
Supreme Court of the United States. The Solicitor General is appointed 
by the President of the United States and confirmed by the U.S. Senate. 
Time after time, the position taken by the Solicitor General has been 
inconsistent with the rhetoric coming out of the White House.
  The Solicitor General, in case after case, has refused to appeal 
cases in which lower courts have overruled the Government, have 
overturned the defendant's convictions or have made it practically 
impossible that the defendant be prosecuted. Instead of appealing that 
case, even when in some decisions there are strong dissents saying, 
``No, no, no, the Government is right here and the defendant is 
wrong,'' in case after case, the Solicitor General has taken the 
position of the defendant, essentially, and not appealed that case to 
at least give a higher court an opportunity to hold for the Government.
  When the Solicitor General makes a decision whether to appeal an 
adverse ruling, he is not in the position of a judge making an 
objective determination. The Solicitor General is supposed to be an 
advocate for us, an advocate for the people trying to enforce the law 
in this country. If there is a legitimate position to take in an 
important case--and these dissents, if nothing else, would indicate 
there would be in those cases--the Solicitor General is supposed to 
take that position and give the courts an opportunity to hold with the 
Government and against the defendant in those cases.
  We will have more to say about that later on next week with regard to 
some specific cases. But there is one particular point that is very 
relevant. It has to do with the recent bombing case that we all know 
about. It has to do with the so-called Cheely decision. There, a panel 
of the court, not even the full court, ruled that death penalties 
provided in two Federal statutes, essentially statutes prohibiting 
sending bombs through the mails, were unconstitutional. That is the 
ninth circuit decision; by a lower court. It was a panel of the full 
court that made that decision. The Solicitor General chose not to 
appeal to let the full court of the ninth circuit even have an 
opportunity to overrule the panel.
  So, as far as it stands out there, the death penalties contained in 
the mail bomb statutes are unconstitutional as far as that circuit is 
concerned. Obviously, that has some great relevance to what we are 
seeing now. We are all pleased that a suspect has been taken into 
custody with regard to the Unabomber case. Whether or not this man is 
charged with any of the three killings, or the terrorizing of many 
other people through a series of mail bombs, a jury hearing the 
Unabomber case should have the option of imposing the death penalty. 
But I fear that if he is charged in the Unabomber killings, the Justice 
Department may well have made it so that it is impossible for the jury 
or the court out there to impose the death penalty.
  The problem is that the most recent Unabomber killing occurred in 
California. California is in the ninth circuit. The ninth circuit 
decided the case I referred to a minute ago in 1994, called Cheely 
versus United States. Cheely had been convicted of murder. He and his 
coconspirators arranged for a mail bomb to be sent to the post office 
box of a key witness against them in a trial. The witness' father was 
killed when he opened the packaged bomb.
  Obviously, the facts are similar to the Unabomber case. Cheely was 
charged with interstate transport of an explosive that resulted in 
death and for death resulting from mailing nonmailable items. The Bush 
administration, which was in office at the time, asked for the death 
penalty. The ninth circuit panel ruled, however, that the death penalty 
statutes for mail bombings were unconstitutional.
  The ninth circuit held that the class of persons eligible for the 
death penalty under these statutes was unconstitutionally broad. Now 
mind you, a Carter-appointed judge on that same panel dissented from 
that decision.
  Given that President Clinton publicly supports the death penalty, it 
would seem reasonable to expect that the Justice Department would 
automatically have sought to appeal that sort of decision which struck 
down a Federal statute allowing the death penalty, with a strong 
dissent included. But the Solicitor General did not file a petition for 
rehearing by the full court.
  In an extraordinary move, however, the full ninth circuit ordered the 
parties to address whether an en banc hearing should be granted. 
Surprisingly, the Justice Department argued that the ninth circuit 
should not grant review in this case.
  Mr. President, the Justice Department wound up arguing against 
itself. Not so surprisingly, the ninth circuit then failed to grant 
rehearing. The Clinton Justice Department did not file an appeal with 
the Supreme Court.
  The Judiciary Committee held an oversight hearing this past November. 
At that hearing, I asked Solicitor General Days why he did not file a 
rehearing petition in Cheely and in another case in another circuit. He 
indicated that although there was an argument to be raised on the other 
side, he did not think that the cases raised large enough concerns to 
justify asking for a rehearing. Of course, the constitutionality of 
many death sentences obtained on the basis of pre-1976 Federal statutes 
was at issue. He also indicated that he had discussed the case with 
Attorney General Reno.
  The effects of this are obvious, because if this man is charged under 
the Federal mail bomb statutes for the Unabomber killing in California, 
he cannot be given the death penalty. Had the Sacramento Federal 
building, and not the Oklahoma City Federal building, been bombed, the 
death penalty might not be available to be sought against Timothy 
McVeigh in Federal court.
  According to the Saturday Washington Post, Justice Department 
officials say they are ``pondering whether to bring charges against 
Koczynski,'' in the Unabomber case, ``initially in Sacramento, the site 
of the last bombing in April 1995, or in New Jersey,'' where a 1994 
killing occurred. I have a good idea why they are pondering. Any other 
time, the prosecutor might bring charges where the most recent case 
occurred, and where the evidence is fresher. And, in fact, the 
Unabomber sent more bombs to California than anywhere else.
  But the case maybe cannot be brought there if the administration 
desires to seek the death penalty. I do not know if the New Jersey case 
is as strong as the California case. The third

[[Page S3706]]

circuit, which includes New Jersey, has not issued opinions striking 
down the Federal death penalty statutes.
  I am deeply disturbed, however, that this administration has 
precluded one death penalty prosecution of the Unabomber, and now we 
will all have to live with the consequences.
  Thank you, Mr. President.
  Mr. COVERDELL. Mr. President, the statement by the Senator from 
Tennessee underscores the majority leader's emphasis on a tough 
judiciary, and just points, once again, to what we have been hearing 
from Majority Leader Dole with regard to how important the judiciary 
system is and the judges we appoint to maintain civil order in our 
country.
  Mr. President, I now yield up to 10 minutes to the Senator from 
Washington.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Washington.

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