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JGR/Chadha re: District of Columbia] (2 of 12)
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JGR/Chadha re: District of Columbia] (2 of 12)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Chadha re: District of Columbia] (2)
Box: 8
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38 Box 8 - [JGR/Chadha re: District of Columbia] (2) - Roberts, John
G.: Files SERIES I: Subject File
U.S. Department of Justice
JUSTITIA
m
United States Attorney
District of Columbia
United States Courthouse, Room 2800
Constitution Avenue and 3rd Street N.W.
Washington, D.C. 20001
11-2-83
Dich:
Chisin a very rough first
cut, with no typo corrections,
editing, etc.
due
Memorandum
Subject
Date
H.R. 3932, A Bill to Amend the District of
November 1, 1983
Columbia Self-Government and Government
Reorganization Act
To
Robert McConnell
From
Joseph E. diGenova
Assistant Attorney General
Principal Assistant
Office of Legislative Affairs
United States Attorney
On October 17, 1983, William V. Roth, Jr., Chairman
of the United States Senate Committee on Governmental Affairs,
sent to the Department for comment and review H.R. 3932, a bill
to amend the District of Columbia Self-Government and Government
Reorganization Act. The bill passed the House of Representatives
on October 4, 1983 and was sent to the Senate for consideration.
On October 20, 1983, our office was asked to comment on the
legislation.
This legislation was introduced to deal with the per-
ceived constitutional infirmities in the D.C. Self-Government
Act* resulting from the United States Supreme Court's decision
in INS V. Chadha, No. 80-1832, slip op. (U.S. June 23, 1983)
which struck down the one house veto provision of Section 244
(c) (2) of the Immigration and Nationality Act, 8 U.S.C. § 1254
(c) (2). The D.C. Act was thrown into question by virtue of the
fact that it contains four provisions reserving to Congress uni-
lateral authority over certain matters. These are:
(1) Section 303 (b) provides that "an amendment to the
charter
shall take effect only if
...
both Houses of
Congress adopt a concurrent resolution
approving such amend-
ment.
"
*Pub. L. 93-198, 87 Stat. 774 (1973).
-2-
(2) Section 602 (c) (1) provides that with respect to
acts effective immediately due to emergency circumstances and
acts proposing amendments to Title IV of this Act "no such act
shall take effect until the end of the 30-day period
and
then only if during such 30-day period both Houses of Congress
do not adopt a concurrent resolution disapproving such act."
(3) Section 602 (c) (2) provides that any Act affecting
Titles 22, 23, or 24 of the District of Columbia Code "shall take
effect
only if
one House of Congress does not adopt a
resolution disapproving such act. "
(4) Section 740 (a) provides that either the House or the
Senate may adopt a resolution terminating emergency presidential
authority over the Metropolitan Police Department.
While we believe that Chadha can be distinguished from
the situation involving Congress' unique plenary relationship to
the District of Columbia under Article I, Section 8, Clause 17
of the U.S. Constitution,* and that therefore the legislative veto
* Chadha, in our view, is distinguishable. The Supreme Court
noted in its opinion that "(n) ot every action taken by either
House 14 subject to the bicameralism and presentment require-
ments of Art. I." (Slip op., at 31). Section 244 (c) (2) was
declared unconstitutional because "it was essentially legis-
lative in purpose and effect." (Id. at 32). This was so be-
cause in exercising Article I power over naturalization, the
"House took action that had the purpose and effect of altering
the legal rights, duties and relations of persons
alter-
ing the legal rights, duties and relations of persons
all outside the legislative branch. " (Id.) (Emphasis supplied.)
The Court furthered noted that when the Attorney General per-
forms his duties pursuant to § 244, "he does not exercise 'legis-
lative' power. " (Id. at 32-33, n. 16). Finally, the Court empha-
zied that when the framers of the Constitution intended to autho-
rize either House "to act alone and outside of its prescribed
bicameral legislative role, they narrowly and precisely defined
the procedure for such action." (Id. at 35). After listing the
four explicit and unambiguous provisions of the Constitution in
this exception, the Court explained:
-3-
provisions in the D.C. Self-Government Act could, in our view
be sustained, we understand that the Department does not wish
to proffer such arguments in the context of other ongoing liti-
gation involving policy matters of wider application. For that
reason, we offer only suggestions as to how the Department might
constructively and creatively deal with the serious and vital
questions of maintaining and protecting the federal interest
in criminal law enactments for the District of Columbia by
offering amendments to H.R. 3932. This is done with the strong
conviction that the President, the Department, the Congress and
particularly this office have essential interests in maintaining
the intergrity of the City's legislative process. Those interests
revolve around the unquestioned unique character of this the only
federal city.
(Footnote contiued.)
One might also include another "exception"
to the rule that Congressional action having
the force of law be subject to the bicameral
requirement and the Presentment Clause. Each
House has the power to act alone in determining
specified internal matters. Art. I, §7 cl. 2,
3, and $5, cl. 2. However, this "exception" only
empowers Congress to bind itself. (Id., n. 20)
(Emphasis supplied).
In the case of the legislative veto provisions in the
D.C. Act, Congress does not take action that affects the legal
rights of persons "outside the legislative branch." The City
Council is nothing more, under the home rule scheme, than a
committee to Congress. It is, therefore, exercising power over
"specified internal matters" when it reviews City Council legis-
lation through the prescribed veto process. In addition, there
is no delegation of authority to any person in the Executive
Branch of government. The "committee power" given to the City
Council is internal in nature and remains for purposes of review
and ratification within the Congress at all times. Hence, neither
separation of power nor presentment clause infirmities arise.
The special relationship to the District of Columbia
which Congress enjoys under the Constitution provides additional
reason for believing that the veto provisions in the D.C. Act
are valid. The courts have said that Congress' authority over
the District of Columbia resembles that of a state legislature.
-4-
(Footnote continued.)
The Supreme Court, for example, has declared that "Congress may
exercise all the police and regulatory powers which a state
legislature or municipal government would have in legislating
for state or local purposes." Palmore V. United States, 411
U.S. 389, 397 (1973). See also O'Donoghue V. United States,
289 U.S. 516, 545 (1933) and Stoughtenborough V. Hennick,
129 U.S. 141, 147 (1889); cf. American Insurance Co. V. Canter,
26 U.S. 511 (1828) (Congress acts as both the general and the
state government of territories).
If Congress acts as a state legislature in the District
of Columbia, it is not bound by the federal constitutional require-
ments of presentment and bicameralism. For example, in passing on
whether a local court for the District of Columbia authorized by
Congress was subject to Article III requirements of judges with
lifetime tenure and immunity from diminution of salaries, the
Supreme Court categorically proclaimed that
the power of Congress under Clause 17 permits
it to legislate for the District in a manner
with respect to subjects that would exceed its
powers, or at least would be very unusual in
the context of national legislation enacted
under other powers delegated to it under Article
I, sec. 8.
Palmore V. Unitee States, 411 U.S. at 397, 398 (1973). Further-
more, with respect to taxing residents of the District for local
purposes, the Court has recognized that Congress may act as a
state legislature unrestricted by constitutional provisions.
See Gibbons V. District of Columbia, 116 U.S. 404, 408 (1886).
More recently, the Court underscored the expansive
nature of this Congressional power over the District of Columbia
by noting that "the 'plenary authority' under the District of
Columbia Clause Art. I, §8, cl. 17
encompasses
the
full authority of government, and thus, necessarily the execu-
tive and judicial powers as well as the legislative." Northern
V. Pipeline Co. V. Marathon Pipe Line, 102 S.Ct. 1258,
, 73
L.Ed. 598, 618 (1982). This is a power unique indeed, "different
in kind from the other broad powers conferred on Congress" and so
special that it is "clearly possessed by Congress only in limited
geographic areas. II (Id.)
-5-
H.R. 3932, inter alia, amends the D.C. Self-Government
Act by substituting for the various concurrent resolution and one
house resolution veto provisions a single joint resolution of
disapproval as the method by which Congress could overturn any
legislative action by the City Council. As Congressman Fauntroy
put it during the debate on H.R. 3932:
Mr. Speaker, the basic thrust of H.R. 3932 is
simple. In each instance in the D.C. Home Rule
Act where a legislative veto is allowed, it is
stricken, and in its place is inserted the re-
quirement for "joint resolution." The import of
this change is that in order for the Congress
to reject an act of the District of Columbia
Council, both Houses of Congress must affirma-
tively act by joint resolution, and the joint
resolution must be presented to the President.
(Cong. Rec., H7904, October 4, 1983).
This would certainly comport with the strictures of Chadha and
we would suggest that in all but one area of concern such a
mechanism would suffice. That area is Council enactments deal-
ing with the Criminal law by amendments to Titles 22, 23 and 24
of the District of Columbia Code.
The debates in Congress over the D.C. Self-Government
Act reveal a profound concern for preserving Congress' unque,
constitutionally established legislative authority over the
District of Columbia. See 119 Cong. Rec. H33352, passim (1973) *
* Indeed, were we able to argue on the merits the entire ques-
tion of the constitutionality of the legislative veto provisions
in this act, we would conclude that if they did not pass consti-
tutional muster then the entire Self-Government Act must fall
because those provisions were seminal to the granting of "home
rule. " It is clear that Congress never would have delegated
these legislative authorities to the City Council had it known
that the retention of these vetos was improper. The severability
question would almost surely have to be resolved in Congress'
favor thus striking down the delegation under the changed cir-
cumstances never contemplated by Congress. This conclusion is
unescapable since Congress included no severability clause in
the 1973 Act. H.R. 3932 would cure this defect and insert such
a clause now.
-6-
More particularly, in only one area did Congress reserve to
special
itself the right to veto by vote of only one house the acts of
of
T.
the City Council and that was with regard to criminal law and
23,
procedure and prisoners, Titles 22, 23 and 24 D.C. Code. The
22,
legislative history dealing with Congress' concern about the
past
24
criminal law and its intention carve out this area for special
consideration is unequivocal. See Home Rule For The District
Columbia 1973-1974, Background and Legislative History of H.R.
9682, and Relatee Bills Culminating in the District of Columbia
Self-Government and Governmental Reorganization Act (Public §Law
93198§0, 93rd Cong., 2d. Sess., (Dec. 31, 1974) (pp. 1443-44,
1455, 1459, 1477, 1499, 1605, 1657 as to general powers and
reservations, and pp. 1676, 1778-79, 2084, 2099, 2117, 2140,
2318, 2890, 2892, 2902, 2917, 2923, 2937, 3013, 3034, 3041,
3054, 3062, 3086, 3114, 3168-69, 3939-41 as to limitations in
area of criminal law and procedure and prisoners). See also,
119 Cong. Rec. 333353, 33357-59, 33364, 33385, 33408 (1973).
The original bill enacted by the House, in fact, prohibited the
soon to be established City Council from legislating in the
criminal law area at all. The Senate version contained no such
prohibition. The conference version of the final bill repre-
sented a compromise and retained a one house veto as the method
of protecting the federal interest. Moreover, during the first
two years of self-government, the Council was prohibited from
legislating in this area while a study of the District of
Columbia Criminal Code was undertaken for the Congress. (Secs.
602 (a) (9) and 602 (c) (2).
H.R. 3932 deals with the one house veto in this criti-
cal area of legislative authority of the Council by providing
for a joint resolution of disapproval in subsection (d). It is
our considered judgment that, because of the carefully crafted
history of Congress' concern with the Councisl's authority in
the criminal law area, any such enactments of the Council should
only be permitted to become law upon passage by the Congress of
a joint resolution of approval. This would serve to vindicate
that special interest manifested by the legislative history of
the D.C. Self-Government Act. It is not, we add, merely Congress'
interest here which is to be protected. The Department, because
of the unique enforcement responsibilities of the United States
Attorney for the District of Columbia, has as much if not more
interest in insuring that any legislation enacted by the Council
does not run afoul of vital federal interests.
-7-
For example, in 1979 the Council passed the Location
of Chanceries Act whicn interfered with the traditional impera-
tives of the United States Department of State to control the
location of foreign missions within the confines of the seat of
government. The ensuing erruption of federal concern manifested
in the House and Senate and the Department of State led to a
resolution overturning this local legislative incursion into
sensitive prerogatives. In 1981, the Council passed a Sexual
Assault Reform Act. Among its more notorious provisions was
one which lowered the age of consent for minors in statutory
rape cases. Another "reform" would have reduced the sentence
for both forcible and statutory rape from life to a maximum of
20 years. The penalty for incest was reduced. In an insult
to the handicapped and crime victims alike, the statute reduced
the penalty forcible rape even further to a 10 years maximum
if the victim were physically or mentally incapable of consent-
ing or resisting. There were additional "reforms" in this
measure which led to the House of Representatives passing
almost immediately a resolution of disapproval. That ended
the matter. Such would not be the cases if H.R. 3932 were
enacted. Recently, the Mayor and others proposed a series of
bills to deal with prison overcrowding. Rather than propose
the construction of additional facilities, they proposed a host
of measures including premature release of felons, executive
power for the mayor, etc. The three acts in question were the
Parole Act of 1983 (Bill 5-16), the Prison Overcrowding Emergency
Powers Act of 1983 (Bill 5-244) and the District of Columbia
Sentencing Improvements Act of 1983 (Bill 5-245).
The Parole Act proposes to release exactly those vio-
lent and dangerous criminals who should remain incarcerated for
a more substantial period of time by reducing the minimum period
of deention to 10 years. Those inmates who are incarcerated for
more than a minimum of 10 years under current law are murderers
rapists, and armed offenders. This Bill would advance most of
their release dates by at least four to five years, and, as
statistics prove that the majority of those released will vic-
timize others relatively soon after release, passage of the
Bill would pose a clear and present daner to the community.
The Prison Overcrowding Emergency Act would allow the
Mayor, as a means of budget control, to release dangerous pri-
soners into the community. Reduced to its essence, this Bill
would sacrifice the safety of the community on the altar of
fiscal irresponsibility. Remarkably, the Bill provides for
repeated acts of reducing sentences by 90 days, even for per-
sons who have no chance of being released immediately as a
-8-
result. For those prisoners who are not within 90 days of
parole eligibility, the existence of an undefined "emergency"
would result in reducing their ultimate sentences for no
good reason, and would not assist in solving the immediate
problem of reducing prison congestion.
Finally, the D.C. Sentencing Improvements Act is
unwise and probably illegal. In extending the time for grant-
ing a motion to reduce sentence from 120 days to one year,
following ultimately could be a denial of a petition for a
writ of certiorari to the Supreme Court years after the
conviction, this Bill would make a mockery of the time-
honored concept of certainty in sentencing, and would under-
mine the very purpose of deterrance that underlies the act
of sentencing. If this Bill were to pass, defendants would
be on notice that the criminal justice system in the District
of Columbia may be manipulated to exact minimal punishment,
and the deterrent effect of other actions taken by the city
will deteriorate. For these reasons, among others, this
Bill is unwise. It is illegal because the Council does not
have the power to amend the Superior Court Rules which govern
the filing of sentence reduction motions. Section 946 of
Title 11 of the D.C. Code states that the Federal Rules of
Criminal Procedure shall apply in Superior Court except as
otherwise authorized by the District of Columbia Court of
Appeals. The Home Rule Act provides that the Council of
the District of Columbia may not alter Title 11. District
of Columbia Self-Government and Governmental Reorganization
Act, D.C. Code, Title VI, §602(a)(4). (See Harris Opposi-
tion, Appendix A.)
While this Office strenuously opposed those items
and Council action is still possible, were the new mechanism
in effect under H.R. 3932, it is highly unlikely that both
houses of congress should be energized to deal with this
matter.
Proponents of H.R. 3932 should have no objection to
our proposed solution to this delicate problem. Their concerns
lie most particularly on whether or not the District can issue
bonds to generate reveneu. Certain measures enacted by the
Council appear to be in jeopardy as a result of Chadha and the
prime interest of the City is in resolving any doubt as to the
validity of bond issues. Chairman Dellums said during the
debate on the bill:
and Couned action is still possible,
-10-
Mr. Speaker, this Bill corrects a defect in the
Home Rule Act that puts a cloud over the ability
of the city to go to the bond market to sell its
bonds. The cloud to which I refer, Mr. Speaker,
is created by the U.S. Supreme Court decision in
the so-called Chadha case insofar as that decision
relates to the District of Columbia.
Cong. Rec., H7904, October 4, 1983.
Congressman Fauntry echoed similar reasons for enactment of
H.R. 3932:
It is, however, urgently needed. The District
has been working diligently to get itself into
the municipal bond market with a reasonable bond
rating. In the wake of Chadah (sic), the Dis-
trict has been unable to secure an "unqualified"
legal opinion from bond counsel. The absence of
an unqualified legal opinion would render any
bond issue the District sought to make effectively
unmarketable-no one would buy the bonds. The
District has Housing Finance Agency bonds ready
to go and will shortly be prepared to go to the
market with other types of bonds. If our goal
of terminating expensive borrowing by the Dis-
trict from the Fedeal Treasury is to be
achieved, we must act to clean up the Chadha
problem. (Id.)
This goal, which we support, is accomplished in the
bill, H.R. 3932, by Section 1, subsection (i) which merely
ratifies all past enactments of the City Council and thus by
incororation all bond measures previously enacted by that
body. The language reads:
(i) The amendments made by this section shall
not be applicable with respect to any law, which
was passed by the Council of the District of
Columbia prior to the date of the enactment of
this Act, and such laws are hereby deemed valid,
in accordance with the provisions thereof,
notwithstanding such amendments.
This saving clause thus legitimatizes all prior bond-related
measures of the Council and solves that most important problem
2
bonds and revenue anticipation notes (RANS) The District will
have a dire need to raise cash, on a short-term basis, during
the December/January period and is planning to issue RANS to meet
that need, rather than seeking interest-free loans from the U.S.
Treasury as in the past. Fiscal year 1984 is the first time the
District has gotten this far in issuing RANS. The District's
bond counsel, however, has stated that it cannot issue a
favorable opinion on the validity of a bond/note issue because of
the potential impact of the Chadha decision on D.C. Council
actions. The marketability of municipal bonds and notes is
dependent on a determination that the contractual debt
obligations of the issuer are valid under existing law. The
District has been advised by its financial adviser that the
inability to secure such an unqualified legal opinion would make
such bonds and notes effectively unmarketable. The enactment of
H.R. 3932 would remedy this problem.
-- Justice Department and White House Counsel Position on
H.R. 3932
The Justice Department and White House Counsel strongly object to
the House-passed version of H.R. 3932, because they believe that
D.C. acts involving criminal matters should be treated differ-
ently than other D.C. acts. H.R. 3932 treats essentially all
D.C. acts the same. Justice has given us its views informally
and White House Counsel, per John Roberts, agrees with Justice.
Justice urges that H.R. 3932 be amended to provide that any act
passed by the D.C. Council which amends the D.C. criminal code
not go into effect unless it is positively enacted into law by
the U.S. Congress (i.e., passed by both Houses of Congress and
signed by the President). This is in contrast with H.R. 3932
which provides that any D.C. act would go into effect unless
disapproved by joint resolution.
Justice believes H.R. 3932 does not allow the Federal government
sufficient time and/or authority to review and possibly override
D.C. Council actions on laws related to criminal matters.
Justice points out that because the District is the national seat
of government and therefore a tourist attraction, there is a
substantial Federal interest in actions taken by the Council that
affect the safety of all citizens and visitors. Justice is also
the prosecutor for all criminal matters in the District (both for
"local" and Federal laws), and operates the court system and the
marshal's service. Because of these responsibilities, Justice is
very concerned about any actions taken by the Council involving
the determination of illegal acts or sentencing standards.
3
Justice points out that criminal matters are already given
special Federal treatment because under current law, only a
one-house veto is needed to override Council acts amending the
criminal codes, rather than requiring a two-house override as for
most Council acts. Justice is also concerned because of what it
considers some potentially irresponsible criminal bills intro-
duced in the Council. It cites especially a bill which was
introduced to release all prisoners who have served more than 10
years in prison, regardless of their crime, as a means of
reducing the overcrowding in the jails (Mayor Barry was recently
cited for contempt of court for failing to reduce the prison
overcrowding.)
At Justice's request, we have not discussed the Department's
position with D.C. officials. We believe it is correct to say,
however, that D.C. would perceive the Justice position as
paternalism, at best, and an attempt to undermine true Home Rule
for the citizens of D.C.
OMB Staff Views
-- GC and JTP Recommendation
GC (Cooney) and JTP staff agree with Justice and the White House
Counsel because that position is consistent with Administration
positions taken on other legislation dealing with criminal issues
in the District. For instance, the Administration has opposed a
bill to transfer the local prosecutorial system to the District.
GC notes that the Justice proposal would not interfere with the
District's ability to enter the bond market and that criminal law
matters constitute only the most minute portion of District
legislative actions.
-- LR Recommendation
LR staff disagrees with the recommendation of Justice and White
House Counsel. Requiring positive Congressional enactment of all
D.C. Council actions on criminal matters could be perceived as a
return to pre-Home Rule days when the Federal government did
everything for the District, and could characterized by some as
insensitivity on the part of the Reagan Administration to the
black population. While limiting such a requirement to criminal
matters is better than applying it to all issues, it may still
prompt vigorous outcries from the District and its friends on the
Hill and elsewhere about the paternal nature of these actions and
its unfairness. New York City also has a strong Federal and
international presence, but is responsible for enacting its own
criminal laws, as is every other city and state in the nation.
4
LR disagrees that requiring positive Congressional enactment of
Council criminal acts is the only way to assure adequate Federal
review. The bill cited by Justice which would release all
prisoners after 10 years is one example of this. First of all,
the fact that a bill has been introduced does not mean it will be
enacted. Second, that bill would almost certainly be vigorously
opposed by the citizens of the District, who only recently
approved a mandatory sentencing referendum. Even were the bill
to somehow get through the Council and be signed by the Mayor, it
is one that the Congress could override under the terms of H.R.
3932. Moreover, minor amendments to the D.C. criminal code would
be held up, possibly for months, because the issues were not
important enough to attract the attention of the Congress.
Finally, since Home Rule was instituted in 1974, the Congress has
overridden only two D.C. Council acts, (although it has debated a
few more). These acts concerned foreign chanceries and penalties
for sexual assaults. This history belies Justice's concern that
the D.C. Government will act irresponsibly on criminal matters.
Requiring positive Congressional enactment of all D.C. laws would
be an overreaction.
Recommendation
LR staff recommends supporting H.R. 3932 as passed by the House.
JTP and GC staff recommend amending the bill to require positive
enactment of criminal laws by the Congress.
Support H.R. 3932 as passed by House (i.e., all D.C. acts
HV
subject to disapproval by joint resolution) (LR staff)
Amend H.R. 3932 to require positive Congressional action on
criminal matters. (Justice, WH Counsel, OMB/GC and
JTP staff)
U.S. Department of Justice
Office of Legislative Affairs
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
MEMORANDUM
November 7, 1983
TO: Joe de Genova
Principal U.S. Attorney
District of Columbia
Larry Simms
Deputy Assistant Attorney General
Office of Legal Counsel
John Roberts
Assistant Counsel
The White House
FROM: N ichael W. Dolan
Deputy Assistant Attorney General
Office of Legislative Affairs
SUBJECT: H.R. 3932 - a bill "to amend the District of Columbia
Self Government and Governmental Reorganization Act,
and for other purposes."
Attached for your review is a draft letter on H.R. 3932.
Would you please call me (633-4787) with any comments as soon as
possible.
THE WHITE HOUSE
WASHINGTON
November 3, 1983
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS
SUBJECT:
D.C. Chadha Bill
For your information. Since Horner and Horowitz have signed
off on the Justice position, I see no reason not to advance
that position at the meeting tomorrow morning. Mike Dolan
will be talking with Eileen Mayer to determine who will
attend for the Administration - hopefully diGenova and/or
John Logan. I've told Dolan of my concern that diGenova's
response to the perceived bond crisis may be inadequate, and
that we should not further delay getting our position out on
the merits.
Attachment
4
LR disagrees that requiring positive Congressional enactment of
Council criminal acts is the only way to assure adequate Federal
review. The bill cited by Justice which would release all
prisoners after 10 years is one example of this. First of all,
the fact that a bill has been introduced does not mean it will be
enacted. Second, that bill would almost certainly be vigorously
opposed by the citizens of the District, who only recently
approved a mandatory sentencing referendum. Even were the bill
to somehow get through the Council and be signed by the Mayor, it
is one that the Congress could override under the terms of H.R.
3932. Moreover, minor amendments to the D.C. criminal code would
be held up, possibly for months, because the issues were not
important enough to attract the attention of the Congress.
Finally, since Home Rule was instituted in 1974, the Congress has
overridden only two D.C. Council acts, (although it has debated a
few more). These acts concerned foreign chanceries and penalties
for sexual assaults. This history belies Justice's concern that
the D.C. Government will act irresponsibly on criminal matters.
Requiring positive Congressional enactment of all D.C. laws would
be an overreaction.
Recommendation
LR staff recommends supporting H.R. 3932 as passed by the House.
JTP and GC staff recommend amending the bill to require positive
enactment of criminal laws by the Congress.
Support H.R. 3932 as passed by House (i.e., all D.C. acts
subject to disapproval by joint resolution) (LR staff)
Amend H.R. 3932 to require positive Congressional action on
criminal matters. (Justice, WH Counsel, OMB/GC and
JTP staff)
Connie
live
JTP
The BAD The GC hereself
w
D.C. where"LR lives?
Wonder skable M.
EXECUTIVE OFFICE OF THE PRESIDENT
Crimin
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
October 27, 1983
MEMORANDUM FOR: CONNIE HORNER
MIKE HOROWITZ
FROM:
JANET FOX (LR)
Jan tip
ANNA DIXON (JTP)
SUBJECT:
Administration Position on D.C. "Chadha"
Amendments
The recent Supreme Court Chadha decision declaring legislative
vetoes unconstitutional affects Congressional review of actions
by the District of Columbia (D.C.) Council. H.R. 3932 (Fauntroy
(D-D.C.)) which would amend the D.C. legislative veto
provisions, has passed the House and is expected to be acted on
by the Senate in the next few weeks. Although D.C. strongly
favors the House-passed version of H.R. 3932, the Justice
Department and White House Counsel want to amend the bill while
it is in the Senate. This memorandum requests your guidance on
what position the Administration should take on this bill. We
request your guidance by Monday, October 31.
Background
-- District Home Rule Act
Under this Act, virtually all acts passed by the District of
Columbia Council are subject to disapproval by either one or two
Houses of Congress. Such legislative veto provisions are, of
course, unconstitutional in light of the recent Supreme Court
Chadha decision. The House-passed version of H.R. 3932 would
amend the Home Rule Act so that D.C. Council acts would be
disapproved only if Congress enacts a joint resolution of
disapproval within certain time periods. This is a
constitutionally acceptable procedure since joint resolutions are
presented to the President for his approval or disapproval.
-- D.C. Position on H.R. 3932
The District strongly supports H.R. 3932 and is anxious for its
early enactment because it will facilitate their plans to issue
-11-
facing the City in the post-Chadha era quite simply and neatly.
We submit that this is sufficient for the time being, and that
attempts to amend in an omnibus manner the Self-Government Act
without lengthy hearings are unwise and unnecessary in light of
the above.
We hasten to add that this proposal does not occur in
a vacuum and comes at a time when the District of Columbia govern-
ment is another area of traditional federal interest. We refer,
of course, to the legislation which has been introduced by Repre-
sentative Mervyn M. Dymally, Chairman, Subcommittees on Judiciary
and Education, Committee on the District of Columbia, U.S.
House of Representatives, entitled the District of Columbia
Judicial and Criminal Justice Reform Act. The proposed bill
contemplates radical changes in the administration of the
criminal justice system in the District of Columbia which
would, inter alia, transfer prosecutive authority for all D.C.
Code crime currently prosecuted in the Superior Court from
the United States Attorney for the District of Columbia to a
new entity, the Attorney General for the District of Columbia;
transfer authority to nominate local judges from the President
either to the Mayor or in the alternative to have the judges
selected by voters in general elections. (See Harris Opposition
to Transfer Legislation, Appendix B.) The reasons outlined in
our opposition to this proposal, which we will not detail here,
give ample reason to be chary of any new system of oversight
of legislative enactments of the Council which does not articu-
late an acceptable vehicle for safeguarding Congressional and
Executive interests.
It is, of course, more than just possible that the one
house veto in the criminal law area has served as a behavior
modifier for the Council. Its mere presence has, provided a
healthy check on excessive actions by that body. Its absence,
or the absence of an equivalent mechanism, will, in all likeli-
hood relinquish that measure of protection federal interest that
has served this City well. We would submit that the proposals
we put forth here will serve all of the interested parties well
and preserve that unique interest of the federal government in
the District of Columbia that is recognized in the Constitution.
DRAFT
Honorable William V. Roth, Jr.
Chairman
Committee on Governmental Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Pursuant to your request, this letter presents the views of
the Department of Justice on H.R. 3932, a bill "to amend the
District of Columbia Self Government and Governmental
Reorganization Act, and for other purposes," as passed by the
House of Representatives on October 4, 1983. We oppose the
enactment of this legislation unless it is amended consistent
with the discussion set forth below.
H.R. 3932 would amend the District of Columbia Self
Government and Governmental Reorganization Act, Pub.L. 93-198, 87
Stat. 774 (1973), as amended, ("Home Rule Act"). The legislation
is in response to the Supreme Court's decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983) where the
Court held as unconstitutional a congressional veto provision in
the Immigration and Nationality Act which allowed one House of
Congress to disapprove an action, delegated to the Attorney
General by law, to suspend the deportation of an alien under the
Act. 1/ The Home Rule Act contains several provisions for
congressional disapproval of actions of the District of Columbia
Government. 2/
1/ On July 6, 1983, the Supreme Court invalidated two other
legislative veto provisions. See Process Gas Consumers Group V.
Consumers Energy Council of America, Nos. 81-20008 et. al. (July
6, 1983), affirming Consumers Energy Council of America V. FERC,
673 F.2d 425 (D.C. Cir. 1982), and Consumers Union, Inc. V. FTC,
691 F.2d 575 (D.C. Cir. 1982).
2/ The Home Rule Act, contains four provisions which may be
characterized as legislative vetoes. These are:
(1) Section 303 (b) provides that "an amendment to the
charter
shall take effect only if
both Houses of
Congress adopt a concurrent resolution
...
approving such
amendment."
*footnote 2 continued at bottom of page 2
- 2 -
DRAFT
H.R. 3932 would permit the District of Columbia ("D.C.")
City Council to pass laws amending Titles 22, 23 and 24 of the
District of Columbia Code ("D.C. Code"), which relate to the
criminal law, criminal procedure and prisoners with Congress and
the President able to overturn such action only by passage by
Congress and enactment of a joint resolution. Because we believe
that amendments to these titles should remain the initial
perogative of the Congress and its legislative process, we must
object to the bill as drafted.
Under the Constitution, Congress has the exclusive power to
legislate for the District of Columbia. Art. I, 88, cl. 17.
Pursuant to this authority Congress has enacted Titles 22, 23 and
24 of the D.C. Code. In furtherance of this authority, the
Department of Justice, through the United States Attorney for the
District of Columbia, has been vested with the prosecutive
authority in the United States District Court and the District of
Columbia Superior Court. D.C. Code $23-101. Indictments are
sought, and prosecutions pursued, in the name of the United
States of America. Similarly, this Department, through the U.S.
Marshal for the District of Columbia, conducts the service of
criminal process, provides court room security, transports
prisoners and returns to the District of Columbia defendants
arrested in other jurisdictions and wanted for prosecution in the
District of Columbia. The U.S. Marshals Service utilizes its
authority under law to serve Superior Court felony subpoenas
anywhere in the United States. D.C. Code $11-942. Finally, all
persons convicted in the District of Columbia are committed to
the custody of the Attorney General, who, through the
Department's Bureau of Prisons, designates the place of
confinement. D.C. Code $24-425. 3/
Footnote 2 continued
(2) Section 602(c) (1) provides that with respect to acts
effective immediately due to emergency circumstances and acts
proposing amendments to Title IV of this Act "no such act shall
take effect until the end of the 30-day period
...
and then
only if during such 30-day period both Houses of Congress do not
adopt a concurrent resolution disapproving such act."
(3) Section 602 (c) (2) provides that any Act affecting Title
22, 23, or 24 of the District of Columbia Code "shall take effect
only if
one House of Congress does not adopt a
resolution disapproving such act."
(4) Section 740 (a) provides that either the House or the
Senate may adopt a resolution terminating emergency presidential
authority over the Metropolitan Police Department.
3/ By agreement with the Government of the District of Columbia
most District of Columbia prisoners are sent to the Lorton
Reformatory.
- 3 -
DRAFT
The Superior Court of the District of Columbia, where
jurisdiction for local offenses rests, is a federal court created
pursuant to Article I of the Constitution. Palmore V. United
States, 411 U.S. 389, 397 (1973). The judges of the Superior
Court and the Court of Appeals are appointed by the President.
D.C. Code 8811-102, 11-301, 11-1501 (a) and 11-1502. A single
jury system for grand and petit juries serve both the Superior
Court and Federal District Court. A grant jury of one court may
return indictments in the other. D.C. Code 8811-1902, 11-
1903(a).
This involvement of the federal interest in the prosecuting
and judicial elements of the District of Columbia support the
principle that the substantive laws which these entities must
enforce and interpret remain within the initial discretion of the
Congressional legislative process. This principle recognizes
nothing more than what is reflected in the present laws,
including the Home Rule Act.
As the Supreme Court, the Congress and the Executive
Branches are located in the District of Columbia, it is truly the
seat of the nation's government. The federal government owns
approximatley 41% of all land in the District. Over 200
buildings are owned or leased by the federal government. Over
445,000 federal employees work in the Washington Metropolitan
area. As a result, the District draws both the nation's citizens
and those of other countries for purposes ranging from conducting
business with the federal government to touring the capital.
Moreover, the sizable diplomatic community reasserts the need for
the three branches of government to be accountable for the
enactment, enforcement and interpretation of the criminal laws
governing the District.
Exempting criminal law, its procedure, and prisoners from
H.R. 3932's mechanism of Congressional review is not inconsistent
with the intent of the Home Rule Act. Maintaining Congress's
authority in this area is established in both the law itself and
its legislative history. Specifically, in only one area did
Congress reserve to itself to veto by vote of only one House the
acts of the City Council - Title 22, 23 and 24 of the D.C. Code.
Home Rule Act $602 (c) (2). See also H.R. Rep. No. 482, 93d
Cong., 1st Sess. (1983). In fact, the original bill, as passed
by the House of Representatives, prohibited the soon to be
established Council from legislating in the criminal law area.
H.R. 9682, 93d Cong., 1st Sess., $602(a)(8) (1973). The Senate
- 4 -
DRAFT
version contained no such prohibition. S. 1435, 93d Cong., 1st
Sess. (1973). The conference version represented a compromise by
inserting a one house veto. Pub.L. No. 93-198, 8602 (c) (2), 87
Stat. 774 (1973). 4/
Our concerns in these areas do not take place in a vacuum.
Presently before the D.C. Council are three bills, Bill 5-16, the
Parole Act of 1983, Bill 5-244, the Prison Overcrowding Emergency
Powers Act of 1983, and Bill 5-245, the District of Columbia
Sentencing Improvements Act of 1983, which raise substantial
concern. Bill 5-16 would reduce the minimum period of detention
to 10 years and would be applicable to individuals incarcerated
for such crimes as rape, murder and armed offenses. Bill 5-244
would permit, as a means of budget control, the release into the
community of convicted individuals. Bill 5-245 would expand the
time for granting a motion to reduce a sentence from 120 days to
one year. While this Department has strongly opposed these
proposals, see attached Statement of Stanley S. Harris, United
States Attorney for the District of Columbia, before the City
Council of the District of Columbia (October 3, 1983), we believe
more importantly that Congress, through its legislative process,
should actually determine the wisdom of such proposals. 5/
As this Department has previously stated, the ramifications
of the Supreme Court's decision in Immigration and Naturalization
Service V. Chadha, 103 S.Ct. 2764 (1983), require all parties
as to review carefully the particular provisions of law at
4/ We also note that during the first two years subsequent to
the effective date of the Home Rule Act the Council was
prohibited from legislating in this area while a study of the
District of Columbia Criminal Code was undertaken for the
Congress. This was later extended to four years. See
SS602 (a) (9) and 602(c)(2) of the Home Rule Act.
5/ In 1981, the D.C. Council passed a Sexual Assault Reform Act.
Among its provisions was one which lowered the age of consent for
minors in statutory rape cases. Another provision would have
reduced the sentence for both forcible and statutory rape from
life to a maximum of 20 years. The penalty for incest was
reduced. The proposal also reduced the penalty for forcible rape
to a 10 year maximum if the victim was physically or mentally
incapable of consenting or resisting. The House of
Representatives passed a resolution disapproving the proposal.
H. Res. 208, 97th Cong., 1st Sess., 127 Cong. Rec. H6762 (1981).
- 5 -
DRAFT
stake. 6/ It is this Department's sincere belief that the
interests of both the District of Columbia and the nation as a
whole are better served by reserving to the Congress and its
legislative process the perogative to amend the laws of the
District of Columbia with respect to crime, criminal procedure
and prisoners. We must stress that there is no inherent conflict
between the District and federal governments. The issues in H.R.
3932 result more from the unique federal and district
relationship embodied in present law. This Department values its
representation of the citizens of the District of Columbia and
share their goal of ensuring that a fair, efficient and effective
criminal justice system be in place. We believe that the
Congressional legislative process is more than competent to
consider the various issues at stake in the matter. Accordingly,
we oppose enactment of H.R. 3932 unless it is amended to reserve
to Congress the right to amend Titles 22, 23 and 24 of the
District of Columbia Code. 7/
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
Attachment
6/ See Statement of Edward C. Schmults, Deputy Attorney General
before the Subcommittee on Administrative Law and Governmental
Relations, Committee on the Judiciary, House of Representatives
(July 18, 1983).
7/ We are sensitive to the need of the District of Columbia to
have the ability to raise revenues through the municipal bond
market. Section (1) (i) of H.R. 3932 is directed toward ratifying
previous actions of the D.C. Council with respect to these bonds.
We would suggest, however, that section (1) (i) be clarified so as
not to infer that actions of the D.C. Council which were subject
to a Congressional resolution as a result of the provisions of
the Home Rule Act are ratified.
THE WHITE HOUSE
WASHINGTON
November 8, 1983
MEMORANDUM FOR MICHAEL W. DOLAN
DEPUTY ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
FROM:
JOHN G. ROBERTS, JR
Ded
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
H.R. 3932
Attached are suggested revisions to the proposed letter on
H.R. 3932. In its current form the letter is far too
confrontational. We think it would be better for the tone
to be one of general support for H.R. 3932, with the one
minor amendment we suggest to make the bill consistent with
the treatment of Titles 22, 23 and 24 in existing law. We
are not wedded to the precise wording of the suggested
changes, but do think the focus of the letter needs to be
re-directed.
CC: Richard A. Hauser
Larry Simms
Joseph DiGenova
INSERT: FIRST PARAGRAPH ON PAGE 2
The Administration generally supports the approach of H.R.
3932, which would correct the constitutionally invalid
portions of the Home Rule Act by requiring congressional
action disapproving acts passed by the D.C. City Council to
take the form of legislation passed by both Houses and
presented to the President for approval or disapproval. In
one narrow area, however, the Administration believes that
it would be more consistent with Congress' prior treatment
under the Home Rule Act to require affirmative approval of
acts passed by the D.C. City Council rather than an oppor-
tunity for disapproval. We recommend that H.R. 3932 be
amended to provide that City Council laws amending Titles
22, 23 and 24 of the District of Columbia Code -- which
relate to criminal law, criminal procedure, and prisoners --
only take effect upon passage by Congress of a joint resolu-
tion of approval. This approach will cure the constitutional
infirmities pointed out by the Chadha decision, while
retaining the special treatment accorded Titles 22, 23, and
24 under the existing Home Rule Act.
U.S. Department of Justice
/ 3
Office of Legislative Affairs
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
MEMORANDUM
November 7, 1983
TO: Joe de Genova
Principal U.S. Attorney
District of Columbia
Larry Simms
Deputy Assistant Attorney General
Office of Legal Counsel
John Roberts
Assistant Counsel
The White House
FROM: N Vichael W. Dolan
Deputy Assistant Attorney General
Office of Legislative Affairs
SUBJECT: H.R. 3932 - a bill "to amend the District of Columbia
Self Government and Governmental Reorganization Act,
and for other purposes."
Attached for your review is a draft letter on H.R. 3932.
Would you please call me (633-4787) with any comments as soon as
possible.
DRAFT
Honorable William V. Roth, Jr.
Chairman
Committee on Governmental Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Pursuant to your request, this letter presents the views of
the Department of Justice on H.R. 3932, a bill "to amend the
District of Columbia Self Government and Governmental
Reorganization Act, and for other purposes," as passed by the
support
House of Representatives on October 4, 1983. We oppose the
enactment of this legislation unless it is amended consistent
with the discussion set forth below.
provided
H.R. 3932 would amend the District of Columbia Self
Government and Governmental Reorganization Act, Pub.L. 93-198, 87
Stat. 774 (1973), as amended, ("Home Rule Act"). The legislation
is in response to the Supreme Court's decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983), where the
which
struck
Court held as unconstitutional a congressional veto provision in
down
the Immigration and Nationality Act which allowed one House of
Gongress to disapprove an action, delegated to the Attorney
so-called
General by law, to suspend the deportation of an alien under the
"legislative
Act. 1/ The Home Rule Act contains several provisions for
veto"
congressional disapproval of actions of the District of Columbia
devices
Government. 2/
such
devices
1/ On July 6, 1983, the Supreme Court invalidated two other
purporting
legislative veto provisions. See Process Gas Consumers Group V.
to
puinements
Consumers Energy Council of America, Nos. 81-20008 et. al. (July
authorize
6, 1983), affirming Consumers Energy Council of America V. FERC,
Congress
sisiation.
673 F.2d 425 (D.C. Cir. 1982), and Consumers Union, Inc. V. FTC,
to:
691 F.2d 575 (D.C. Cir. 1982).
disapprove
2/ The Home Rule Act contains four provisions which may be
characterized as legislative vetoes. These are:
(1) Section 303(b) provides that "an amendment to the
charter
shall take effect only if
both Houses of
...
Congress adopt a concurrent resolution
approving such
amendment."
*footnote 2 continued at bottom of page 2
- 2 -
DRAFT
H.R. 3932 would permit the District of Columbia ("D.C.")
SUBSTITUTE
City Council to pass laws amending Titles 22, 23 and 24 of the
INSERT
District of Columbia Code ("D.C. Code"), which relate to the
criminal law, criminal procedure and prisoners with Congress and
the President able to overturn such action only by passage by
Congress and enactment of a joint resolution. Because we believe
that amendments to these titles should remain the initial
perogative of the Congress and its legislative process we must
object to the bill as drafted.
Under the Constitution, Congress has the exclusive power to
legislate for the District of Columbia. Art. I, 88, el. 17
Pursuant to this authority Congress has enacted Titles 22, 23 and
24 of the D.C. Code. In furtherance of this authority the
Department of Justice, through the United States Attorney for the
District of Columbia, has been vested with the prosecutive
authority in the United States District Court and the District of
Columbia Superior Court. D.C. Code $23-101. Indictments are
sought, and prosecutions pursued, in the name of the United
States of America. Similarly, this Department, through the U.S.
Marshal for the District of Columbia, conducts the service of
criminal process, provides court room security, transports
prisoners and returns to the District of Columbia defendants
arrested in other jurisdictions and wanted for prosecution in the
District of Columbia. The U.S. Marshals Service utilizes its
authority under law to serve Superior Court felony subpoenas
anywhere in the United States. D.C. Code $11-942. Finally, all
persons convicted in the District of Columbia are committed to
the custody of the Attorney General, who, through the
Department's Bureau of Prisons, designates the place of
confinement. D.C. Code $24-425. 3/
Footnote 2 continued
(2) Section 602 (c) (1) provides that with respect to acts
effective immediately due to emergency circumstances and acts
proposing amendments to Title IV of this Act "no such act shall
take effect until the end of the 30-day period
...
and then
only if during such 30-day period both Houses of Congress do not
adopt a concurrent resolution disapproving such act."
(3) Section 602 (c) (2) provides that any Act affecting Title
22, 23, or 24 of the District of Columbia Code "shall take effect
only if
one House of Congress does not adopt a
resolution disapproving such act."
(4) Section 740 (a) provides that either the House or the
Senate may adopt a resolution terminating emergency presidential
authority over the Metropolitan Police Department.
3/ By agreement with the Government of the District of Columbia
most District of Columbia prisoners are sent to the Lorton
Reformatory.
- 3 -
DRAFT
The Superior Court of the District of Columbia, where
jurisdiction for local offenses rests, is a federal court created
pursuant to Article I of the Constitution. Palmore V. United
States, 411 U.S. 389, 397 (1973). The judges of the Superior
Court and the Court of Appeals are appointed by the President.
D.C. Code 8811-102, 11-301, 11-1501 (a) and 11-1502. A single
jury system for grand and petit juries serve both the Superior
Court and Federal District Court. A grant jury of one court may
The
return indictments in the other. D.C. Code 8811-1902, 11-
federal
1903(a).
government
is,
This involvement of the federal interest in the prosecuting
accordingly,
and judicial elements of the District of Columbia support the
dearly
principle that the substantive laws which these entities must
interested
enforce and interpret remain within the initial discretion of the
in the
prosecution
Congressional legislative process. This principle recognizes
of crimes
nothing more than what is reflected in the present laws,
under the
including the Home Rule Act.
D.C. Cade,
their
As the Supreme Court, the Congress and the Executive
determine
Branches are located in the District of Columbia, it is truly the
ation
seat of the nation's government. The federal government owns
before
the
approximatley 41% of all land in the District. Over 200
courts,
buildings are owned or leased by the federal government. Over
and
445, 000 federal employees work in the Washington Metropolitan
the
area. As a result, the District draws both the nation's citizens
handling
and those of other countries for purposes ranging from conducting
of
-cates
business with the federal government to touring the capital.
prisoners
convicted
a
Moreover, the sizable diplomatic community reasserts the need for
under
enther
the three branches of government to be accountable for the
the
Ford
enactment, enforcement and interpretation of the criminal laws
code.
nicrest
governing the District.
in
Exempting criminal law, its procedure, and prisoners from
H.R. 3932's mechanism of Congressional review is not inconsistent
Special
with the intent of the Home Rule Act. Maintaining Congress
treatment
authority in this area is established in both the law itself and
for Titles
its legislative history. Specifically, in only one area did
22, 23
Congress reserve to itself to veto by vote of only one House the
and
acts of the City Council - Title 22, 23 and 24 of the D.C. Code.
24
Home Rule Act §602(c)(2). See also H.R. Rep. No. 482, 93d
consistent
is
Cong., 1st Sess. (1983). In fact, the original bill, as passed
with
by the House of Representatives, prohibited the soon to be TA
the
established Council from legislating in the criminal law area.
existing
H.R. 9682, 93d Cong., 1st Sess., §602(a)(8) (1973). The Senate
Home
Rule
Act
and
its
legislative
history.
- 4 -
DRAFT
version contained no such prohibition. S. 1435, 93d Cong., 1st
Sess. (1973). The conference version represented a compromise by
inserting a one house veto. Pub.L. No. 93-198, 8602 (c) (2), 87
Stat. 774 (1973). 4/
Our concerns in these areas do not take place in a vacuum.
Presently before the D.C. Council are three bills, Bill 5-16, the
Parole Act of 1983, Bill 5-244, the Prison Overcrowding Emergency
Powers Act of 1983, and Bill 5-245, the District of Columbia
Sentencing Improvements Act of 1983, which raise substantial
concern. Bill 5-16 would reduce the minimum period of detention
to 10 years and would be applicable to individuals incarcerated
for such crimes as rape, murder and armed offenses. Bill 5-244
would permit, as a means of budget control, the release into the
community of convicted individuals. Bill 5-245 would expand the
time for granting a motion to réduce a sentence from 120 days to
one year. While this Department has strongly opposed these
proposals, see attached Statement of Stanley S. Harris, United
States Attorney for the District of Columbia, before the City
Council of the District of Columbia (October 3, 1983) we believe
more importantly that Congress, through its legislative process,
should actually determine the wisdom of such proposáls. 5/
As this Department has previously stated, the ramifications
of the Supreme Court's decision in Immigration and Naturalization
Service V. Chadha, 103 S.Ct. 2764 (1983), require all parties
as to review carefully the particular provisions of law at
4/ We also note that during the first two years subsequent to
the effective date of the Home Rule Act the Council was
prohibited from legislating in this area while a study of the
District of Columbia Criminal Code was undertaken for the
Congress. This was later extended to four years. See
§§602(a)(9) and 602(c)(2) of the Home Rule Act.
5/ In 1981, the D.C. Council passed a Sexual Assault Reform Act.
Among its provisions was one which lowered the age of consent for
minors in statutory rape cases Another provision would have
reduced the sentence for both forcible and statutory rape from
life to a maximum of 20 years. The penalty for incest was
reduced. The proposal also reduced the penalty for forcible rape
to a 10 year maximum if the victim was physically or mentally
incapable of consenting or resisting. The House of
Representatives passed a resolution disapproving the proposal.
H. Res. 208, 97th Cong., 1st Sess., 127 Cong. Rec. H6762 (1981).
- 5 -
DRAFT
continuing
the special
treatment
accorded
stake. 6/ It is this Department's sincere belief that the
Titles 22,
interests of both the District of Columbia and the nation as a
23 and
whole are better served by reserving to the Congress and its
24 in
legislative process the perogative to amend the laws of the
the
District of Columbia with respect to crime, eriminal procedure
Home
and prisoners We must stress that there is no inherent conflict
Rule
between the District and federal governments. The issues in H.R.
Act
3932 result more from the unique federal and district
in a
relationship embodied in present law. This Department values its
manner
representation of the citizens of the District of Columbia and
consistent
share their goal of ensuring that a fair, efficient and effective
with
criminal justice system be in place. We believe that the
the
Congressional legislative process is more than competent to
Supreme
consider the various issues at stake in the matter. Accordingly,
Court's
we oppose enactment of H.R. 3932 unless it is amended to reserve
decision
to Congress the right to amend Titles 22, 23 and 24 of the
in
Di strict of Columbia Code
IMS H.
The Office of Management and Budget has advised this Depart-
Chadha
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
In conclusion,
we support exactment
of H.R. 3932
provided it is
amended
consistent with the
Attachment
views expressed in
this letter.
6/ See Statement of Edward C. Schmults, Deputy Attorney General
before the Subcommittee on Administrative Law and Governmental
Relations, Committee on the Judiciary, House of Representatives
(July 18, 1983).
7/ We are sensitive to the need of the District of Columbia to
have the ability to raise revenues through the municipal bond
market. Section (1) (i) of H.R. 3932 is directed toward ratifying
previous actions of the D.C. Council with respect to these bonds.
We would suggest, however, that section (1) (i) be clarified so as
never
not to infer that actions of the D.C. Council which were subject
became
to a Congressional resolution as a result of the provisions of
effective
the Home Rule Act are ratified.
because
they
U.S. Department of Justice
Office of Legislative Affairs
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
MEMORANDUM
November 10, 1983
TO: Joseph F. diGenova
Principal Assistant U.S. Attorney
District of Columbia
John Roberts
Assistant Counsel to the President
The White House
Jay Stephens
Deputy Associate Attorney General
FROM:
Michael W. Dolan
W
Deputy Assistant Attorney General
Office of Legislative Affairs
SUBJECT: H.R. 3932 - D.C. Home Rule Amendments
Attached for your review and approval is a revised copy of
the Department's proposed report on H.R. 3932, the D.C. House
Rule amendments. Please telephone any comments to me (633-4787)
or John Logan (633-2078) as soon as possible.
D.C emergency inits
DRAFT
Honorable William V. Roth, Jr.
Chairman
Committee on Governmental Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Pursuant to your request, this letter presents the views of
the Department of Justice on H.R. 3932, a bill "to amend the
District of Columbia Self-Government and Governmental
Reorganization Act, and for other purposes," as passed by the
House of Representatives on October 4, 1983. We oppose the
enactment of this legislation unless it is amended consistent
with the discussion set forth below.
the
H.R. 3932 would amend the District of Columbia Self-
Government and Governmental Reorganization Act, Pub.L. 93-198, 87
Stat. 774 (1973), as amended, ("Home Rule / Act"). The legislation
is in response to the Supreme Court's decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983), which
struck down as unconstitutional so-called "legislative veto"
devices. 1/ The Home Rule Act contains several such devices
purporting to authorize Congress to disapprove actions of the
District of Columbia Government without complying with the
constitutional requirements for legislation. 2/
1/ The Supreme Court has also affirmed the invalidity of two
other two other legislative veto provisions. See Process Gas
Consumers Group V. Consumers Energy Council of America, 103
S.Ct. 3556 (1983), affirming Consumers Energy Council of America
V. FERC, 673 F.2d 425 (D.C. Cir. 1982), and Consumers Union, Inc.
V. FTC, 691 F.2d 575 (D.C. Cir. 1982).
2/ The Home Rule Act contains four provisions which may be
characterized as legislative vetoes. These are:
(1) Section 303 (b) provides that "an amendment to the
charter
.
shall take effect only if
both Houses of
Congress adopt a concurrent resolution
approving such
amendment."
*footnote 2 continued at bottom of page 2
- 2 -
DRAFT
The Administration generally supports the approach of H.R.
3932, which would correct the constitutionally invalid portions
of the Home Rule Act by requiring congressional action
disapproving acts passed by the D.C. City Council to take the
form of legislation passed by both Houses and presented to the
President for approval or disapproval. In one narrow area,
however, the Administration believes that it would be more
consistent with Congress' prior treatment under the Home Rule Act
to require affirmative approval of acts passed by the D.C. City
Council rather than an opportunity for disapproval. We recommend
that H.R. 3932 be amended to provide that City Council laws
amending Titles 22, 23 and 24 of the District of Columbia code --
which relate to criminal law, criminal procedure, and prisoners
-- only take effect upon passage by Congress of a joint
resolution of approval. This approach will cure the
constitutional infirmities pointed out by the Chadha decision,
while retaining the special treatment accorded Titles 22, 23, and
24 under the existing Home Rule Act.
Under the Constitution, Congress has the exclusive power to
legislate for the District of Columbia. Art. I, $8, cl. 17.
Pursuant to this authority Congress has enacted Titles 22, 23 and
24 of the D.C. Code. The Department of Justice, through the
United States Attorney for the District of Columbia, has been
vested with the prosecutivé authority in the United States
District Court and the District of Columbia Superior Court. D.C.
Code $23-101. Indictments are sought, and prosecutions pursued,
in the name of the United States of America. Similarly, this
Department, through the U.S. Marshal for the District of
Columbia, conducts the service of criminal process, provides
court room security, transports prisoners and returns to the
District of Columbia defendants arrested in other jurisdictions
and wanted for prosecution in the District of Columbia. The U.S.
Marshals Service utilizes its authority under law to serve
Superior Court felony subpoenas anywhere in the United States.
Footnote 2 continued
(2) Section 602 (c) (1) provides that with respect to acts
effective immediately due to emergency circumstances and acts
proposing amendments to Title IV of this Act "no such act shall
take effect until the end of the 30-day period
and then
only if during such 30-day period both Houses of Congress do not
adopt a concurrent resolution disapproving such act."
(3) Section 602 (c) (2) provides that any Act affecting Title
22, 23, or 24 of the District of Columbia Code "shall take effect
only if
one House of Congress does not adopt a
resolution disapproving such act."
(4) Section 740 (a) provides that either the House or the
Senate may adopt a resolution terminating emergency presidential
authority over the Metropolitan Police Department.
- 3 -
DRAFT
D.C. Code $11-942(b). Finally, all persons convicted in the
District of Columbia are committed to the custody of the Attorney
General, who, through the Department's Bureau of Prisons,
designates the place of confinement. D.C. Code 824-425. 3/
The Superior Court of the District of Columbia, where
jurisdiction for local offenses rests, is a federal court created
pursuant to Article I of the Constitution. Palmore V. United
States, 411 U.S. 389, 397 (1973). The judges of the Superior
Court and the Court of Appeals are appointed by the President.
D.C. Code S811-101, 11-102, 11-301, and 11-1501 (a). A single
jury system for grand and petit juries serve both the Superior
Court and Federal District Court. A grand jury of one court may
/chuk
return indictments in the other. D.C. Code 8811-1902,
11-1903 (a). The federal government is, accordingly, deeply
interested in the prosecution of crimes under the D.C. Code,
their determination before the courts, and the handling of
prisoners convicted under the Code.
The federal government owns approximately 41% of all land in
the District. Over 200 buildings are owned or leased by the
federal government. Over 445,000 federal employees work in the
Washington Metropolitan area. As a result, the District draws
both the nation's citizens and those of other countries for
purposes ranging from conducting business with the federal
government to touring the capital. Moreover, the sizable
diplomatic community reasserts a federal interest in the
enactment, enforcement and interpretation of the criminal laws
governing the District.
Special treatment for Titles 22, 23 and 24 is consistent
with the existing Home Rule Act and its legislative history.
Specifically, in only one area did Congress reserve to itself to
veto by vote of only one House the acts of the City Council -
Title 22, 23 and 24 of the D.C. Code. Home Rule Act $602 (c) (2).
See also H.R. Rep. No. 482, 93d Cong., 1st Sess. (1973). In
fact, the original bill, as passed by the House of
Representatives, prohibited the soon to be established Council
from legislating in the criminal law area. H.R. 9682, 93d Cong.,
1st Sess., $602 (a) (8) (1973). The Senate version contained no
3/ By agreement with the Government of the District of Columbia
most District of Columbia prisoners are sent to the Lorton
Reformatory.
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DRAFT
such prohibition. S. 1435, 93d Cong., 1st Sess. (1973). The
conference version represented a compromise by inserting a one
house veto. Pub.L. No. 93-198, §602 (c) (2), 87 Stat. 774 (1973).
4/
Our concerns in these areas do not take place in a vacuum.
Presently before the D.C. Council are three bills, Bill 5-16, the
Parole Act of 1983, Bill 5-244, the Prison Overcrowding Emergency
Powers Act of 1983, and Bill 5-245, the District of Columbia
Sentencing Improvements Act of 1983, which raise substantial
concern. Bill 5-16 would reduce the minimum period of detention
to 10 years and would be applicable to individuals incarcerated
for such crimes as rape, murder and armed offenses. Bill 5-244
would permit, as a means of budget control, the release into the
community of convicted individuals. Bill 5-245 would expand the
time for granting a motion to reduce a sentence from 120 days to
one year. While this Department has strongly opposed these
proposals, see attached Statement of Stanley S. Harris, United
States Attorney for the District of Columbia, before the City
Council of the District of Columbia (October 3, 1983), we believe
more importantly that Congress, through its legislative process,
should retain the opportunity to review the wisdom of such
proposals. 5/
As this Department has previously stated, the ramifications
of the Supreme Court's decision in Immigration and Naturalization
Service V. Chadha, 103 S.Ct. 2764 (1983), require all parties
to review carefully the particular provisions of law at stake.
6/ It is this Department's sincere belief that the interests of
both the citizens of the District of Columbia and the nation as a
whole are better served by continuing the special treatment
4/ We also note that during the first two years subsequent to
the date which elected members of the initial Council took
office, the Council was prohibited from legislating in this area
while a study of the District of Columbia Criminal Code was
undertaken for the Congress. This was later extended to four
years. See $$602(a) (9) of the Home Rule Act.
5/ In 1981, the D.C. Council passed a Sexual Assault Reform Act.
Among its provisions was one which lowered the age of consent for
minors in statutory rape cases. Another provision would have
reduced the maximum sentence for both forcible and statutory rape
from life to 20 years imprisonment. The penalty for incest was
reduced. The proposal also reduced the penalty for forcible rape
to a 10 year maximum if the victim was physically or mentally
incapable of consenting or resisting. The House of
Representatives passed a resolution disapproving the proposal.
H. Res. 208, 97th Cong., 1st Sess., 127 Cong. Rec. H6762 (1981).
6/ See Statement of Edward C. Schmults, Deputy Attorney General
before the Subcommittee on Administrative Law and Governmental
Relations, Committee on the Judiciary, House of Representatives
(July 18, 1983).
- 5 -
DRAFT
accorded Titles 22, 23 and 24 in the Home Rule Act in a manner
consistent with the Supreme Court's decision in INS V. Chadha.
We believe that the primary responsibility of the Congress and
the President should be maintained in this area. This
responsibility can be preserved by requiring a joint resolution
of approval for D.C. Council amendments to Titles 22, 23, and 24
of the D.C. Code. We must stress that there is no inherent
conflict between the district and federal governments. The
issues in H.R. 3932 result from the unique federal and district
relationship embodied in present law. This Department values its
representation of the citizens of the District of Columbia and
share their goal of ensuring that a fair, efficient and effective
criminal justice system be in place. In conclusion, we oppose
enactment of H.R. 3932 unless it is amended consistent with the
views expressed in this letter. 7/
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Attachment
7/ We are sensitive to the need of the District of Columbia to
have the ability to raise revenues through the municipal bond
market. Section (1) (i) of H.R. 3932 is directed toward ratifying
previous actions of the D.C. Council with respect to these bonds.
We would suggest, however, that section (1) (i) be clarified so as
not to infer that actions of the D.C. Council which never became
effective because they were subject to a Congressional resolution
as a result of the provisions of the Home Rule Act are ratified.
PREPARED STATEMENT OF
STANLEY S. HARRIS,
UNITED STATES ATTORNEY FOR
THE DISTRICT OF COLUMBIA,
ON BILLS 5-16, 5-244, and 5-245
OCTOBER 3, 1983
This written statement is submitted to explain in some
detail my reasons for testifying in opposition to the passage
of Bill 5-16, the Parole Act of 1983; Bill 5-244, the Prison
Overcrowding Emergency Powers Act of 1983; and Bill 5-245, the
District of Columbia Sentencing Improvements Act of 1983.
Let me begin by stressing what I consider to be one of
the key roles of the United States Attorney as the prosecutor
of adult crimes in the District of Columbia. There is in our
city an organization, financed by the taxpayers, called the
Public Defender Service. It is a fine organization, perform-
ing a needed service. However, its name is somewhat mislead-
ing, for it does not represent the public. Rather, it repre-
sents a relatively small percentage of the criminal defendants
in our city -- typically, as a matter of fact, recidivists.
The public -- that is, the law-abiding citizens who must be
protected against the criminal element in our midst and who
all too often become victims of crime -- must be and is repre-
sented by the prosecutors of the United States Attorney's
Office.
Perhaps the best way to make my initial point is to quote
from an article on the editorial page of the Wall Street Jour-
nal which was written nearly a year ago about criminal trials.
The author of that article, Vermont Royster, stated in rele-
vant part as follows:
What has happened to the law, I think,
is a forgetfulness that there are two par-
ties in every criminal trial. One is the
accused, a real person easily visible. The
other is "the state," a seemingly imper-
sonal and institutional entity. An injus-
tice to the individual is readily under-
stood. Injustice to "the state" is not so
readily recognized. To many, including
lawyers, a "fair trial" has come to mean
only fair to the accused; fairness to the
other party is forgotten.
Yet that entity "the state" is not
only all of us but each of us. The
person called the prosecutor is in fact
a public defender. His task is to try
to make our homes and streets safer by
APPENDIX 5
page 2
removing from society those who 12 or-
dinary citizens decide have been guilty
of injury to one or more members of
society.
My 182 Assistant United States Attorneys and I fully en-
dorse those observations. So that, as my sons would say, is
where I am coming from today. I am here with pre-eminent con-
cern for the victims of crime -- past, present, and future.
I do not like saying what I feel obliged to say today.
I would like to speak glowingly of law enforcement successes.
I would like to say that our so-called correctional institu-
tions have a meaningful number of people in them who are there
needlessly and who are ready to become productive members of
society. I cannot do SO. The unfortunate but inescapable
truth is that we have not too many in our prison facilities
but too few.
In giving this testimony, it is our purpose to recite
considerable statistical information which, while imperfect,
does present a striking overview of what is happening in our
criminal justice process. In doing so, I express appreciation
to the Department of Corrections for making considerable in-
formation available to us for analysis.
I must advise you of my personal, and my Office's insti-
tutional, conviction that the problem that the District of
Columbia currently is facing is not one of "prison overcrowd-
ing," but one of "prison undercapacity." The facts are that
those who are incarcerated should be incarcerated, the citi-
zens of this community justifiably desire that they remain
incarcerated, and prison expansion is the only proper solution
to the problem. This Council would not be acting responsibly
if it legislated to achieve the premature release of repeat
and dangerous offenders into the law-abiding community by
passing the three Bills that are the subject of this hearing.
The appropriateness of characterizing the problem as
one of "prison undercapacity" becomes clear when one takes a
close look at those who are incarcerated and the reasons for
their confinement. Dangerous and repeat offenders permeate
our prison population. Statistics generated by the Department
of Corrections confirm that fact. The average sentence
being served by inmates committed to Lorton Reformatory in
1982 was substantial: that average was 2-3/4 years to 11-1/2
page 3
years. During the first quarter of 1983, the average sentence
of those committed to Lorton jumped to from 4-1/2 years to
just over 14 years. Further, in 1982, approximately 32% of
the inmates were sentenced to consecutive terms of imprison-
ment, an additional 21% of the inmates were serving concurrent
time on multiple counts, and approximately 16% of the inmates
had detainers pending against them for other crimes charged
in this or other jurisdictions. Data on the past criminal
history of inmates unfortunately is not kept by the Department
of Corrections, but experience dictates, and the above figures
confirm, that virtually all of those incarcerated at Lorton
are recidivists.
That the inmates at Lorton are dangerous is clear from
the types of crimes for which they are incarcerated. In 1982,
45.6% of the newly-committed inmates were incarcerated for
crimes against persons, and during the first quarter of 1983
that figure jumped to 52%. Armed robbers comprised 56.9% of
those incarcerated for personal crimes in 1982; during the
first three months of 1983 they comprised 67% of the same
population. Persons convicted of drug abuse, burglars,
thieves, and weapons offenders, in that order, accounted
for an additional 46% of the total prison population. The
remaining prisoners were incarcerated for other offenses,
which include bail jumping and escape. When the intimate
connection between drug and weapons offenses and other crimes
is factored into these figures, the serious and violent
nature of virtually all of the inmates cannot be disputed.
The above statistics represent defendants committed to
Lorton for the first time for a particular offense. Convicts
who were recommitted to Lorton for parole violations, halfway
house and work release violations, and escapes, represented
approximately 40% of inmate admissions. This fact serves to
verify that those incarcerated should remain there as ordered
by conscientious judges for the good of the community and
for the safety of potential innocent victims.
I recognize that a number of offenders affected by the
Bills before this Council currently are incarcerated at Occo-
quan, a small step admirably taken to help relieve overcrowd-
ing at Lorton. Although intended to house only misdemeanor
convicts, Occoquan also holds convicted felons. In 1982, 83.3%
of the Occoquan residents had been convicted of assault, grand
theft, weapons, drug, and other serious offenses. Bail viola-
tors, parole violators, and fugitives accounted for an addi-
tional 2.5% of the population. Of those inmates at Occoquan,
75.4% previously had been committed to the Department of
Corrections, and 35% were there on drug convictions. Thus,
page 4
it is only sensible to conclude that most of those at Occoquan
are serious offenders. Moreover, experience reveals that
all of the committed offenders are recidivists, for the
alternatives of pretrial diversion, the Federal Youth Correc-
tions Act, and probation literally without exception have
been exhausted before a Court has determined that incarcera-
tion is the appropriate remedy to achieve the inescapable
goals of deterrence and punishment.
The D.C. Jail also houses many sentenced offenders who
would be affected by passage of the Bills before the Council.
Sentenced felons comprise over 25%, and sentenced misdemeanants
comprise only 11%, of the current population of the jail. Most
of these are awaiting transfer to Occoquan or Lorton, and the
available information reveals that many are serious -- and
virtually all are repeat -- offenders. Further, the vast
majority are drug abusers. A recent Washington Post article
indicated that as many as 76% of the inmates at the D.C.
Jail were drug abusers (during a time in which the City was
not cracking down in any concentrated way on drug offenders).
One point cannot be overemphasized. When prison needs
were projected two or three decades ago, not even the wildest
pessimist could have predicted the extraordinary extent to
which narcotics and narcotics-related offenses would swell both
our incidence of criminal offenses and our prison populations.
Today, the intimate connection between drug abuse and other
serious criminal activity is well established. Recent studies
have shown that large numbers of incarcerated offenders were
under the influence of drugs when they committed their crimes,
and that heroin addicts -- of which the District of Columbia
has far more than its share -- commit six times as many crimes
during periods of addiction as during periods of abstinence.
Thus it is deplorable but not surprising that 80% of the of-
fenders committed to the Lorton Youth Center admit to having
abused drugs. This very serious problem should be addressed
by the Council, but prematurely turning convicted abusers
out on the streets is not a tolerable solution.
The extent to which incarcerated persons already are
being returned to society at an early date should be recog-
nized. In 1982, the Board of Parole released 61% of all
prisoners at their first hearing dates, and 73% of the re-
mainder were released at their second hearing dates. As
might be expected, in a recent study by the Board of Parole
which was designed to evaluate the success or failure of
prisoners released to parole supervision, the authors found
page 5
that 52% of parolees incurred new arrests during the two-
year period following their release. / Eighty percent of
those rearrested subsequently were convicted. Of additional
interest is the further finding that of those who sustained
convictions while on parole, more than one-half never had
their parole revoked, and remained on the streets of this
community pending their new convictions. Thus, an unaccept-
ably high number of offenders who are on parole are continuing
to victimize law-abiding citizens, and to add to their number
by prematurely releasing others would only exacerbate the
situation.
In light of all of the above, it is evident that our
jail and prisons house dangerous and repeat offenders, many
of whom maintain dangerous drug habits, and almost all of
whom must remain incarcerated with their normal release dates
if anything more than lip service is to be paid to ensuring
community safety.
Next, it is important to emphasize that the citizens
of this City, who comprise the Council's and my own consti-
tuency, want serious offenders to remain incarcerated. Their
concerns were made clear by their overwhelming approval of
the Mandatory Minimum Sentences Initiative which became law
last June. They also have supported recent police efforts
to apprehend repeat and serious offenders, and are partici-
pating in growing numbers in neighborhood crime watch programs.
The Council would be showing disdain for these efforts if it
enacted the proposed Bills.
Further, much public and private effort and money have
been expended in order to identify, apprehend, and convict
serious offenders. This investment of time and money should
not be wasted by releasing those offenders prematurely. Such
a result would be inconsistent with the popular view that vio-
lent and dangerous offenders should be incarcerated, as evi-
denced also by the strong support shown for the bail law
amendments which were passed unanimously by this Council 15
months ago.
Of those, 25% were rearrested between 1 to 4 months of
parole, 56% were rearrested within 8 months of their parole,
79% were rearrested within a year, and only 21% lasted at
least 13 months without being rearrested.
page 6
Given this expressed concern, it should be no surprise
that the citizens would be willing to foot the bill to keep
dangerous recidivists off the streets. As do you, we have
frequent contacts with citizens and community leaders. It is
our conclusion that they virtually unanimously support the
appropriation of public funds to increase jail capacity. I
would willingly join with the Council in posing the issue
directly to the citizens of this City, and I would live (hap-
pily, I am confident) with the results. Moreover, such ex-
penditures ultimately would be returned to the City many
times over if the streets were made safer for businesses on
which to operate and for individuals to enjoy.
Additionally, to release criminals prematurely is to
buck the current local and national trend to treat crime vic-
tims, both actual and potential, with more compassion. The
majority of released criminals currently victimize others
shortly after their release; their premature release thus
would create proportionately more victims. Not only is this
result unacceptable to the reasonable person; it is contrary
to the expressed intent of this Council in proposing and
passing several victims rights bill, two of which are sched-
uled to be heard in two weeks, on October 17, 1983.
In sum, any measure which would result in the premature
release of serious offenders would make a mockery of citizen
efforts to improve the safety of their community, would be in-
consistent with other actions taken by this Council, and would
contradict common sense.
It is thus clear that the problem of prison undercapacity
can be solved only by building or acquiring more prison space,
and this is a solution that not only is attainable, but that
is directly supported by the Congress of the United States,
which only last week appropriated more than $20 million for
added prison facilities. In the recent past, due to the
growing crime rate, the criminal justice system has been
supplied with additional judges, additional prosecutors, ad-
ditional support personnel, and additional court facilities.
Despite those facts, little additional prison space has been
provided to house the additional criminals which inevitably
have been caught, prosecuted, and incarcerated. This situa-
tion cries out for correction.
It should be noted that our jail is crowded with in-
mates who properly should be in a prison facility. Data
developed by the Department of Corrections reveals that in
1982, an average of 482 inmates, or 25.1% of the total jail
page 7
population, were sentenced felons. An additional average of
212 prisoners, or 11.1% of the total jail population, were
sentenced misdemeanants. These inmates should have been
sent to a correctional, instead of to a detention, facility.
If that had occurred, the jail (by its own figures) would
have been underpopulated. We believe that this situation
remains unchanged in 1983.
Further, it is significant to note that, contrary to the
belief of some, the jail is not full of pretrial detainees.
Jail authorities unfortunately do not keep precise statistics,
but a substantial number of the unsentenced offenders actually
have been convicted but remain in jail awaiting sentence.
Therefore, the percentage of unsentenced offenders who are de-
tained awaiting trial should be very small -- probably less
than 10% of all defendants awaiting trial. Moreover, under
the current bail laws, almost all of those are violent, dan-
gerous, and/or repeat offenders.
Some have suggested that because recent crime statistics
seem to indicate that reported crime has decreased slightly,
no new measures need be taken to expand prison capacity.
Initially, I would point out that the figures reflect only
the reported crime rate, and it is commonly accepted that 50
to 70% of the crime in any large urban area goes unreported.
Beginning, however, with the reported crime rate, the Metro-
politan Police Department's own statistics reveal that in 1982
they "closed," by identifying the assailant, only 57.5% of
the murders, 64.3% of the forcible rapes, 20.8% of the robber-
ies, 65.6% of the aggravated assaults, and 13.2% of the
burglaries which were committed and reported. These numbers
do not reflect accurately the percentage of criminals actually
caught, however, because the Police Department considers a
case "closed" if only one of several perpetrators is identi-
fied, and in a significant number of cases, identification
does not correlate with arrest. In sheer numbers, the Police
Department reported that in 1982 it "closed" 127 out of 221
reported murders, 285 out of 443 reported rapes, 2,040 out
of 9,799 reported robberies, 2,332 out of 3,553 aggravated
assaults, and 2,071 out of 15,682 reported burglaries.
Of the 221 reported homicides, only 61 guilty judgments
were entered, with 33 cases remaining open. Thus, in less
than 30% of the reported homicides was the murderer ever
held accountable for his actions. Further, of the 443 reported
rape offenses, only 76 guilty findings were obtained. Of
the frightening total of 9,799 reported robberies, only 706
defendants were held accountable. For the offense of aggra-
vated assault, only 182 defendants were found guilty out of
3,553 reported cases, and for the offense of burglary, only
page 8
419 guilty judgments were entered out of a total of 15,682
reported cases. Moreover, it is unquestionably true that
a large percentage of those convicted received probation,
and that less than half of them went to jail. In short, of
the total number of persons who commit crimes in this City,
only 20 to 50% have their criminal activities reported, only
10 to 20% are identified, less than 5% are convicted, and
less than 3% are incarcerated. Thus, it is clear that of
the large number of serious offenders in this City, only an
infinitesimal percentage actually are incarcerated for their
crimes. To strive artificially through legislative fiat to
reduce this number manifestly is absurd, for that percent-
age is, in my view, an irreducible minimum.
Also illustrative of the continuing serious nature of
the crime problem in this City are the increases in the re-
ported incidents of armed robbery, robbery, and drug offenses.
Over the last five years the number of adults arrested for
armed robbery increased from 721 in 1978 to 896 in 1981, with
the 1982 statistics showing a slight decline to 805. The
number of adult arrests for unarmed robberies increased
steadily from 849 in 1978 to 1,097 in 1981, with the 1982
figures showing a slight decrease to 1,014. For felony drug
offenses, the numbers have risen steadily from 169 arrests
in 1978 to 2,353 in 1982. An additional 4,641 misdemeanor
drug arrests were made in 1982.
Insofar as the number of cases indicted may provide a
more accurate forecast of the future prison population, the
statistics for the key offenses of armed robbery and drug
abuse are both informative and staggering. In 1978, 372 de-
fendants were indicted for armed robbery, and 124 defendants
were indicted for drug offenses. In 1982, 561 defendants
were indicted for armed robbery, and 863 defendants were in-
dicted for drug offenses.
It is therefore evident that any slight decrease in
the amount of reported dangerous and violent crime in this
City will have no long-term effect on the prison population,
and should not be used as an excuse to ignore the problem of
prison undercapacity. Similarly, discussions of alternative
sentencing and diversion beg the issue. Alternative sentencing
is a tool which currently is frequently used by judges in
appropriate cases, and our Office already is exercising pre-
trial diversion for virtually every eligible defendant. Fur-
ther, as stated above, most, if not all, of those sentenced
to incarderation previously have been granted forms of diver-
sion and probation. (Literally the only exception to the
sequential diversion and probation route prior to incarcera-
tion is the first-degree murderer, who may have no prior
record but who faces a mandatory sentence of 20 years to
life.)
page 9
Focusing specifically on the three Bills before the
Council today, I must urge the Council to defeat each one.
The "Parole Act of 1983, Bill 5-16, introduced by Council-
member Ray, proposes to release exactly those violent and
dangerous criminals who should remain incarcerated for a
more substantial period of time by reducing the minimum
period of detention to 10 years. Those inmates who are incar-
cerated for more than a minimum of 10 years are murderers,
rapists, and armed offenders. This Bill would advance most of
their release dates by at least four to five years, and, as
statistics prove that the majority of those released will vic-
timize others relatively soon after release, passage of the
Bill would pose a clear and present danger to the community.
Moreover, I am obliged to point out that technically
the Bill may not accomplish what it supposedly is intended
to achieve. The preamble to the Bill states that it intends
"to require that all prisoners become eligible for release
on parole after having served ten years
"
(emphasis
added), but, in our view, it would not apply to first-degree
murder convictions. 22 D.C. Code § 2404(b) states that
"notwithstanding any other provision of law," a person con-
victed of first-degree murder must serve a minimum of 20
years. Additionally, it is questionable whether the Bill's
terms would apply to prisoners serving consecutive sentences
totaling more than 10 years. (We believe that they would not.)
Of course, I am not advocating that this Bill be amended to
include persons convicted of premeditated first-degree mur-
der or to prisoners serving substantial consecutive sentences,
but rather that it be defeated in its entirety.
Concerning the "Prison Overcrowding Emergency Power Act
of 1983;' Bill 5-244, also introduced by Councilmember Ray,
I note that it would allow the Mayor, as a means of budget
control, to release dangerous prisoners into the community.
Reduced to its essence, this Bill would sacrifice the safety
of the community on the altar of fiscal irresponsibility.
There are other problems inherent in the Bill which
should cause it to fail of passage. The Bill provides for
repeated acts of reducing sentences by 90 days, even for per-
sons who have no chance of being released immediately as a
result. For those prisoners who are not within 90 days of
parole eligibility, who indeed may be eight to ten years
away from parole eligibility, the existence of an undefined
"emergency" would result in reducing their ultimate sentences
for no good reason, and would not assist in solving the im-
mediate problem of reducing prison congestion.
page 10
The third piece of legislation under consideration,
the "District of Columbia Sentencing Improvements Act of
1983," Bill 5-245, introduced by Councilmember Rolark, is
unwise and probably illegal. In extending the time for
granting a motion to reduce sentence from 120 days to one
year, following what ultimately could be a denial of a peti-
tion for a writ of certiorari to the Supreme Court years
after conviction, this Bill would make a mockery of the
time-honored concept of certainty in sentencing, and would
undermine the very purpose of deterrence that underlies the
act of sentencing. The Supreme Court has spoken clearly
about the need for finality in all legal, and especially
criminal, proceedings, most recently in deciding death penalty
cases. If this Bill passes, defendants will be on notice
that the criminal justice system in the District of Columbia
may be manipulated to exact minimal punishment, and the deter-
rent effect of other actions taken by this Council will de-
teriorate.
Additionally, this Bill would tie up scarce judicial re-
sources at late stages of criminal proceedings, and would de-
tract from recent efforts to afford defendants not yet con-
victed more speedy trials. I doubt that the Council seriously
desires this result.
Moreover, a motion to reduce sentence is not designed
to be used as a tool to reduce the number of criminals incar-
cerated. The caselaw is clear that a motion to reduce sen-
tence properly is to be filed only to allow a court to recon-
sider its sentencing decision in light of the factors present
at the time of sentencing, and not in light of a prisoner's
artificial conduct in the early stages of his incarceration.
An offender's conduct in prison properly is a subject of
consideration by the parole board, and not by the sentencing
judge.
Finally, and decisively, this Bill erroneously assumes
that the Council has the power to amend the Superior Court
Rules which govern the filing of sentence reduction motions.
Section 946 of Title 11 of the D.C. Code states that the
Federal Rules of Criminal Procedure shall apply in Superior
Court except as otherwise authorized by the District of
Columbia Court of Appeals. The Home Rule Act provides that
the Council of the District of Columbia may not alter Title
11. District of Columbia Self-Government and Governmental
Reorganization Act, D.C. Code, Title VI, $ 602 (a) (4). There-
fore, any amendment to the Superior Court Rules requires ac-
tion by the judges themselves, and any legislation by the
Council on this matter would be inappropriate. Nonetheless,
I note that the Federal Criminal Rule 35 has been amended to
allow greater flexibility, and our courts now are studying
the situation.
page 11
All three of these Bills thus are based upon the wrong
premise -- that convicted serious offenders should be released
prematurely for budgetary reasons -- rather than on the cor-
rect premise that convicted serious offenders, who at great
expense to this City have been apprehended and prosecuted,
should be treated and kept in a secure facility for as long
as the sentencing judges found appropriate and necessary.
Hard statistics prove that premature release results in cre-
ating untold numbers of new victims, and to accept this re-
sult would be to ignore the citizens' mandate to make their
streets, homes, and businesses as safe as possible. It is
time for the District of Columbia government to recognize
both the realities of the situation and the will of its con-
stituents, to bite the proverbial bullet, and to provide
more facilities to solve the problem of prison undercapacity.
As I have noted, that task was aided by the fact that just
last week, the Congress of the United States appropriated
more than $20 million for that purpose. Maximum effective use
should be made of those funds, and the Council -- as should the
Executive Branch -- should deal realistically with the existing
problems.
It does not please me to bring to light the realities of
our relative lack of law enforcement success in today's world,
in which the cancer of narcotics and narcotics-related crime
is eating away at the very fabric of our social institutions.
I would serve this distinguished body poorly, however, were I
to do otherwise. It is axiomatic that a large amount of crime
today is committed by a disproportionately small number of
chronic offenders. Once such offenders have been brought to
justice, it defies reason to support their premature release
for purely budgetary reasons. No one can be unaware of the
dramatic increase in recent years of dead-bolt locks, alarm
systems, and barred windows and doors. It is the law-abiding
citizens of the Nation's Capital, rather than its criminal
element, who deserve the full support of the Council.