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Crime Bill - Decision Memos [2]
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October 23, 1993
MEMORANDUM FOR DAVID GERGEN
FROM:
BRUCE REED
SUBJECT:
OPTIONS MEMO ON CRIME FUNDING
Here is a preliminary draft of the options memo on diverting more of the NPR savings
toward crime.
This version (Saturday 8pm) reflects OMB's changes. We also told OMB we would
attach a copy of Panetta's original memo on crime funding, which Chris Edley distributed at
the meeting Friday.
I'm still waiting to hear back from Justice. Sheila Anthony and Jeff Robinson gave
me a preliminary indication that it looked fine, and Sheila read at least part of it to the
Attorney General. But they want to show it to their budget guru and get back to us tomorrow
or first thing Monday morning. I will get you an updated copy as soon as I have their
comments.
If you haven't already done so, you should talk with the Vice President about this
approach before we go in to see the President on Monday. I spoke to Elaine Kamarck, who
thought the Vice President would welcome the idea. (She may have mentioned it to him this
afternoon.) She is already working to make sure that Tuesday's event to announce the
procurement bill and spending cut package is also used to plug crime.
I will be in the office on Sunday. If you need to reach me at home, my number is
362-9595.
DRAFT
SAT. 8 PM
October 25, 1993
MEMORANDUM FOR THE PRESIDENT
FROM:
BRUCE REED
JOSE CERDA III
SUBJECT:
CRIME BILL FUNDING
I.
ACTION-FORCING EVENT
The crime bill will be taken up on the Senate floor and in the House Judiciary
Committee next week. As the crime issue takes on increasing urgency in Congress and the
countryside, we face the prospect of a bidding war in both houses, in which Republicans and
even liberal Democrats compete to prove that they care more about crime than the
Administration. Senator Biden and others are urging us to pre-empt this debate by pledging
more resources for cops, drug treatment, and prisons.
II.
BACKGROUND
A. House Update
The outlook for passing some kind of crime bill by Thanksgiving may have improved
significantly. In the House, Chairman Brooks has given up trying to find habeas reform and
death penalty provisions that can attract a majority of House Democrats, and has decided to
postpone consideration of those issues until next year. The Black Caucus opposed his habeas
proposal, even though it was more liberal than ours and much more liberal than current law,
and he does not believe he could get a majority to vote the crime bill out of committee
without substantial prodding from the Administration or unacceptable revisions in habeas.
Brooks plans instead to break out the key components -- cops, boot camps, drug
courts, Safe Schools, and the Brady Bill -- and pass them all separately. If the Republicans
go along, the crime measures can then be passed quickly under suspension in the House, and
easily reconciled with Senate versions. This strategy avoids the specter of an irreconcilable
conference, and should assure that the Brady Bill and most key elements of the crime bill will
be on your desk by Thanksgiving.
Biden is considering a similar strategy in the Senate, but he has less control over the
outcome. Hatch may agree to drop habeas, but Gramm and other Republicans will force
1
death penalty votes at every turn -- and most will probably pass. The leadership in both
houses may have to commit to considering a death penalty/habeas reform bill at some point.
B. What to Do About the Bidding War
Momentum is building within the Congress and around the country to do more on
crime -- and the chance that the death penalty may not be part of this year's final package
will only increase pressure on Democrats to come out for more cops and more money for
state and local prisons.
Before introducing the House and Senate crime bills in September, Brooks and Biden
scaled back the authorization levels from $8.9 billion in last year's conference report to
around $5.9 billion this year. At the time, they were concerned about deflecting criticism
over how to pay for these programs. With crime emerging as the number one issue in the
country, that concern is out the window.
Now Biden and other Senate Democrats are concerned that the Republicans (and some
of their own Democratic colleagues) will do to us on crime what they did to us this past week
on drugs: beat up on this Administration for being unwilling to spend more than the last one.
Biden recognizes that these criticisms are unfair, but he expects his colleagues to make them
anyway. He fears that our $6 billion crime bill will quickly become somebody else's $12
billion crime war.
There is no way to stop this train in the Senate, where every imaginable get-tough
amendment is likely to pass with large bipartisan majorities. (Biden told us that Senators
Feinstein and Moseley-Braun plan to offer an amendment to let states try 12-year-olds as
adults, even in capital cases, and other Democrats want to offer truth-in-sentencing
amendments to make states that want prison funds guarantee that their inmates will serve at
least 85% of their sentence.) The Republicans will add $2-3 billion for prisons, the
Democrats will add more money for drugs, and both sides will get behind more money for
cops. Even deficit hawks from low-crime states, like Conrad and Dorgan, are leading the
charge to throw more money at the crime problem.
Biden strongly believes that the Administration needs to seize control of the issue by
upping the ante. On Friday, Mack McLarty convened a meeting with the Attorney General
and White House senior staff to address this matter. There was no disagreement on the
merits or the politics of putting more money into the Administration's key anti-crime
programs; the only issue was money.
That meeting produced one recommendation for how you can take the initiative in a
responsible but aggressive manner, by claiming a little more credit for a decision you've
already made but few know about: earmarking part of the October spending cuts package for
the crime bill.
2
Last week, you and the Vice President agreed to commit $3+ billion of the $10+
billion in spending cuts and procurement savings to fully fund the crime bill. The $3+ billion
figure represents the difference between the $3.4 billion already in the Justice Department's
FY94-99 baseline for community policing, and OMB's estimate of what all the programs in
the Biden-Brooks bills would actually cost. (It adds up to more than $5.9 billion because
some of the authorization levels in the crime bill are set at "such sums.")
Last week, Leon Panetta sent you the attached memorandum advising you not to
promise to "fully fund" the entire crime bill (except for community policing), because we will
also have to find room in next year's budget for other Justice priorities, such as immigration
and health care fraud, as well as contemplate some difficult cuts in federal law enforcement.
Moreover, at least $1 billion of the $6 billion in the current bill goes for programs and
authorization levels that Biden and Brooks inserted at the request of other members, which
Justice has no intention of funding and which duplicate other initiatives under way at other
agencies (e.g., Safe Schools).
Rather than committing $3+ billion from the spending cuts package to "fully fund" a
hodgepodge of crime programs, we recommend earmarking $5 billion in savings from the
October package and procurement reform to the Administration's three crime priorities: more
cops, drug courts, and boot camps/prisons.
We still wouldn't be fully funding the crime bill, but the combination of $3.4 billion
from the Justice planning baseline and $5 billion from the October package and procurement
reform would enable us to increase the community policing authorization from $3.4 billion to
$4.9 billion (which will fund between 60,000 and 70,000 cops); increase the drug court
authorization from $1.2 billion to $1.5 billion (which will fund drug treatment and certainty
of punishment for an estimated 250,000 minor drug offenders); and increase the boot
camp/regional prison authorization from $200 million to $2 billion (which will fund an
estimated 75,000 boot camp slots, 15,000 three-year prisoner slots, and drug treatment for
200,000 criminal addicts). The rationale would be that the Administration wants to stress a
few big-ticket law enforcement priorities in the bill, but cannot assure funding for the rest.
There are several advantages to this strategy:
1. We could get 60-70,000 cops (instead of 50,000), and address several members'
concern that some cities may need a slightly higher federal match than currently
contemplated;
2. We could blunt our drug critics by committing some real money to drug courts, an
approach which has the strong support of the Attorney General and the Drug Director;
3. We could head off the pounding we'll take from Republicans over money for
prisons, which will pass whether we like it or not; and
3
4. We could give the spending cuts package and procurement reform a boost by tying
them to a popular and immediate issue.
Moreover, there is a natural link between reinventing government and fighting crime:
the whole point of the Vice President's effort has been to steer government away from things
it doesn't know how to do, into things government can do best. You made this connection
many times in the campaign, when you said you wanted to reduce the bureaucracy by
100,000 and use the money to help put 100,000 new police on the street.
This strategy is not without some cost. First, if we commit $5 billion of savings from
the October package to crime, we will fall short of some members' $10 billion target for
deficit reduction. Second, if the October package doesn't pass, we may be criticized for
passing a crime bill that has not yet been paid for. But that's true whether we commit $3
billion or $5 billion -- and if Congress votes down our spending cuts, it won't be our fault if
we can't fund everything in the crime bill. Moreover, we can come back next year with any
spending cuts that fail this time around and use them to offset crime-related Justice spending
in FY95.
You should also be aware that like every other department, Justice faces a serious
funding crunch in FY95, even though its planning baseline shows the largest percentage
increase from 1994 to 1995. Justice has been handed several new initiatives, including
immigration and health care fraud. These initiatives, together with other new programs at
other departments, will present a series of tough choices in nailing down the FY95 budget.
For example, while funding for state and local law enforcement assistance goes up
dramatically, funding for federal law enforcement may decline.
The Attorney General summed up her concerns in one word: "money". She is willing
to commit to more drug courts, cops, and boot camps -- so long as the White House is
willing to commit the money. She does not want to be forced down the road to cut FBI and
DEA agents to make room in the budget for expansions in other law enforcement assistance.
OMB lays out its concerns in the attached memorandum. In summary, OMB wants
you to understand that every program is in competition with something else. We will not be
able to fully fund all the authorizations in the crime bill and all the potential new initiatives at
Justice.
We agree that those concerns will have to be addressed early next year in the broader
context of the FY95 budget. Unless and until Congress keeps its end of the bargain by
agreeing to your spending cuts, you cannot be expected to spend money you don't have.
If you are willing to commit a substantial portion ($5 billion) of the spending cut
package to crime, we recommend that you consider the following course of action:
4
Use Tuesday's procurement/October package event to announce that as a sign of
the Administration's seriousness about the epidemic of violence, you want about half the
spending cuts and procurement savings to go to fighting crime, with the balance to go for
deficit reduction.
Ask Biden and Brooks to raise the authorization levels for more cops, more drug
courts, and more boot camps/prisons, as suggested above.
If your schedule permits, join Drug Director Brown and Attorney General Reno
at Wednesday's opening of the D.C. drug court, which is being funded through an HHS grant
from the Clinton Administration.
Use every appropriate opportunity during the House/Senate debates on the crime
bill and the spending cut package to stress the importance of bold, immediate action.
5
October 21, 1993
MEMORANDUM FOR DAVID GERGEN
FROM:
Bruce Reed
SUBJECT:
Meetings with Biden and Kerry
I. MORE COPS
Kerry and Biden have raised a legitimate concern: With Congress likely to inflate the
authorization levels in the crime bill anyway, we should try to get in front of the curve. They
both suggest putting more money into cops, which is a great idea -- so long as 1) we can
find the money and 2) the new money goes for more new cops, not just a higher federal
match for the same 50,000 new cops.
The ideal scenario would be for us to reach internal agreement within the White
House, OMB, and Justice to double the community policing title from $3.45 billion to $6.9
billion, then hold a press conference with Democratic leaders (and if possible, Republicans) to
announce a bipartisan response to the crisis of violence by pledging support for the full
100,000 cops, to be paid for through spending cuts in the October rescission package. I think
the President, Vice President, and First Lady would welcome this strategy.
To make that happen, we will have to overcome a few hurdles:
1) The Attorney General doesn't want the cops we have. We'll have to persuade her
that the rescission money is real, and that her other programs won't suffer.
2) OMB will have to crunch the numbers, and figure out whether the October
spending cuts can be used for this purpose. Panetta has been helpful thus far in finding more
money for cops, but his staff may be difficult.
3) To get Republican support, we will have to agree to spend more for prisons.
Republicans amendments to increase prison authorizations will pass anyway, but we can't
officially condone them unless we find more money ($1-2 billion).
II. OTHER ISSUES TO TAKE UP WITH BIDEN
1. Police Officers Bill of Rights: Leaders of the police unions are coming to the
White House on Tuesday morning to meet with you, Mack, and our staff about this issue.
We intend to tell them that we will work closely with them in the coming months, but we
can't let it cripple the crime bill. As Biden points out, unified law enforcement support is
essential -- but supporting POBR now is a complication we can't afford.
2. More Money for Everything: It was Biden's idea to scale back authorization
levels in the first place, but he's right that a bidding war is inevitable. We should confine the
Administration's support to things we care about -- cops and perhaps prisons -- and let
Congress carry the burden of inflating everything else. We never promised to fund the non-
cop provisions at their current authorization levels.
Biden's suggestion to increase the federal match for police to a constant 75% federal
match is a bad idea. We have spoken with departments in dozens of cities, large and small,
who all tell us that 50% is reasonable -- especially when every mayoral candidate in
America is pledging to find money for more police whether the federal government can help
or not. If we're going to put even more money into policing, we should use it to get closer to
the 100,000 cops campaign pledge.
3. Gun Amendments: Biden will probably want to talk about guns. We think Brady
is in good shape, and the Kohl amendment (no handguns for minors) should pass easily. The
tougher question is what to do about an assault weapons ban, which is currently at least 5
votes short in the Senate and 20 in the House.
Handgun Control fears that losing any gun votes during the crime bill debate will
jeopardize momentum for the Brady bill, which will come up for a separate vote immediately
after the crime bill is dispensed with. They may want our help in persuading Metzenbaum,
DeConcini, and Feinstein not to offer an assault ban until after the Brady vote. Biden may
also ask us to try to talk Simon out of offering other gun amendments where he does not
have the votes. We can try, although we would have a hard time explaining ourselves if we
have to let Congress go home without a vote on assault weapons.
4. Results by Thanksgiving: We should try to pass the crime bill and the Brady bill
into law before recess, but we need to decide what to do if the crime bill gets bogged down.
Handgun Control will want us to pull out Brady and pass it separately. If we're up against
the wall, we should think about pulling out cops as well. Brady is an important symbolic
gesture, but the stakes are higher now, and we'll take a lot of heat if we have to wait until
next spring (or longer) to take real action on crime.
Better yet, the President could give an Oval Office address on crime and violence,
ordering Congress not to go home for Christmas until it finishes a crime conference and
passes the crime bill and Brady into law. That would show America how seriously the
President takes this issue, give us a fail-safe victory if we lose NAFTA, and assure us the
most productive first year of any President since FDR.
DRAFT -- NOT YET SUBMITTED -- DRAFT -- NOT YET SUBMITTED -- DRAFT
October 25, 1993
MEMORANDUM FOR THE PRESIDENT
FROM:
BRUCE REED
JOSE CERDA III
SUBJECT:
CRIME BILL FUNDING
I.
ACTION-FORCING EVENT
The crime bill will be taken up on the Senate floor and in the House Judiciary
Committee next week. As the crime issue takes on increasing urgency in Congress and the
countryside, we face the prospect of a bidding war in both houses, in which Republicans and
even liberal Democrats compete to prove that they care more about crime than the
Administration. Senator Biden and others are urging us to pre-empt this debate by pledging
more resources for cops, drug treatment, and prisons.
II.
BACKGROUND
A. House Update
The outlook for passing some kind of crime bill by Thanksgiving may have improved
significantly. In the House, Chairman Brooks has given up trying to find habeas reform and
death penalty provisions that can attract a majority of House Democrats, and has decided to
postpone consideration of those issues until next year. The Black Caucus opposed his habeas
proposal, even though it was more liberal than ours and much more liberal than current law,
and he does not believe he could get a majority to vote the crime bill out of committee
without substantial prodding from the Administration or unacceptable revisions in habeas.
Brooks plans instead to break out the key components -- cops, boot camps, drug
courts, Safe Schools, and the Brady Bill -- and pass them all separately. If the Republicans
go along, the crime measures can then be passed quickly under suspension in the House, and
easily reconciled with Senate versions. This strategy avoids the specter of an irreconcilable
conference, and should assure that the Brady Bill and most key elements of the crime bill will
be on your desk by Thanksgiving.
Biden is considering a similar strategy in the Senate, but he has less control over the
outcome. Hatch may agree to drop habeas, but Gramm and other Republicans will force
1
death penalty votes at every turn -- and most will probably pass. The leadership in both
houses may have to commit to considering a death penalty/habeas reform bill at some point.
B. What to Do About the Bidding War
Momentum is building within the Congress and around the country to do more on
crime -- and the chance that the death penalty may not be part of this year's final package
will only increase pressure on Democrats to come out for more cops and more prisons.
Before introducing the House and Senate crime bills in September, Brooks and Biden
scaled back the authorization levels from $8.9 billion in last year's conference report to $5.9
billion this year. At the time, they were concerned about deflecting criticism over how to pay
for these programs. With crime emerging as the number one issue in the country, that
concern is out the window.
Now Biden and other Senate Democrats are concerned that the Republicans (and some
of their own Democratic colleagues) will do to us on crime what they did to us this past week
on drugs: beat up on this Administration for being unwilling to spend more than the last one.
Biden recognizes that these criticisms are unfair, but he expects his colleagues to make them
anyway. He fears that our $6 billion crime bill will quickly become somebody else's $12
billion crime war.
There is no way to stop this train in the Senate, where every imaginable get-tough
amendment is likely to pass with large bipartisan majorities. (Biden told us that Senators
Feinstein and Moseley-Braun plan to offer an amendment to let states try 12-year-olds as
adults, even in capital cases, and other Democrats want to offer truth-in-sentencing
amendments to make states that want prison funds guarantee that their inmates will serve at
least 85% of their sentence.) The Republicans will add $2-3 billion for prisons, the
Democrats will add more money for drugs, and both sides will get behind more money for
cops. Even deficit hawks from low-crime states, like Conrad and Dorgan, are leading the
charge to throw more money at the crime problem.
Biden strongly believes that the Administration needs to seize control of the issue by
upping the ante. On Friday, Mack McLarty convened a meeting with the Attorney General
and White House senior staff to address this matter. There was no disagreement on the
merits or the politics of putting more money into the Administration's key anti-crime
programs; the only issue was money.
That meeting produced one recommendation for how you can take the initiative in a
responsible but aggressive manner, by claiming a little more credit for a decision you've
already made but few know about: earmarking part of the October spending cuts package for
the crime bill.
2
Last week, you and the Vice President agreed to commit $3+ billion of the $10+
billion in spending cuts and procurement savings to fully fund the crime bill. The $3+ billion
figure represents the difference between the $3.4 billion already in the Justice Department's
FY95-99 baseline for community policing, and OMB's estimate of what all the programs in
the Biden-Brooks bills would actually cost. (It adds up to more than $5.9 billion because
some of the authorization levels in the crime bill are set at "such sums.")
Last week, Leon Panetta sent you the attached memorandum advising you not to
promise to "fully fund" the entire crime bill (except for community policing), because we will
also have to find room in next year's budget for other Justice priorities, such as immigration,
as well as contemplate some difficult cuts in federal law enforcement. Moreover, at least $1
billion of the $6 billion in the current bill goes for programs and authorization levels that
Biden and Brooks inserted at the request of other members, which Justice has no intention of
funding and which duplicate other initiatives under way at other agencies.
Rather than committing $3+ billion from the spending cuts package to "fully fund" a
hodgepodge of crime programs, we recommend earmarking $5 billion from the October
package and procurement reform to the Administration's three crime priorities: more cops,
drug courts, and boot camps/prisons.
There are several advantages to this strategy:
1. We could get at least 60,000 cops (instead of 50,000), and address several members'
concern that some cities may need a slightly higher federal match;
2. We could blunt our drug critics by committing some real money to drug courts, an
approach which has the strong support of the Attorney General and the Drug Director;
3. We could head off the pounding we'll take from Republicans over money for
prisons, which will pass whether we like it or not; and
4. We could give the spending cuts package and procurement reform a boost by tying
them to a popular and immediate issue.
We still wouldn't be fully funding the crime bill, but the combination of $3.4 billion
from the Justice baseline and $5 billion from the October package and procurement reform
would allow increased authorization levels of $4.9 billion in cops (60,000+), $1.5 billion in
drug courts (drug treatment and certainty of punishment for an estimated 250,000 minor drug
offenders), and $2+ billion in boot camps and prisons (an estimated 75,000 boot camp slots,
15,000 three-year prisoner slots, and drug treatment for 200,000 criminal addicts).
Moreover, there is a natural link between reinventing government and fighting crime:
the whole point of the Vice President's effort has been to steer government away from things
it doesn't know how to do, into things government has to do and no one else can. You made
3
this connection many times in the campaign, when you said you wanted to reduce the
bureaucracy by 100,000 and use the money to help put 100,000 new police on the street.
This strategy is not without some cost. First, if we commit $5 billion from the
October package to crime, we will fall short of some members' $10 billion target for deficit
reduction. Second, if the October package doesn't pass, we may be criticized for passing a
crime bill that has not yet been paid for. But that's true whether we commit $3 billion or $5
billion -- and if Congress votes down our spending cuts, it won't be our fault if we can't
fund everything in the crime bill. Moreover, we can come back next year with any spending
cuts that fail this time around and use them to offset crime-related Justice spending in FY95.
You should also be aware that like every other department, Justice faces a serious
funding crunch in FY95, even though it will receive the largest increase. Justice has been
handed several new initiatives, including immigration and the health care fraud program. All
these initiatives, together with other new programs at other departments, will present a series
of tough choices in nailing down the FY95 budget.
The Attorney General summed up her concerns in one word: "money". She is willing
to commit to more drug courts, cops, and boot camps -- so long as the White House is
willing to commit the money. She does not want to be forced down the road to cut FBI and
DEA agents to make room in the budget for expansions in other law enforcement assistance.
OMB lays out its concerns in the attached memorandum. In summary, OMB wants
you to understand that we will not be able to fully fund all the authorizations in the crime bill
and all the potential new initiatives at Justice.
We agree that those concerns will have to be addressed early next year in the broader
context of the FY95 budget. We do not believe that committing a greater portion of the
spending cut package to crime and drugs now will tie your hands later. Unless and until
Congress keeps its end of the bargain by agreeing to your spending cuts, you cannot be
expected to spend money you don't have.
If you are willing to commit a greater portion of the spending cut package to crime,
we recommend that you consider the following course of action:
Use Tuesday's procurement/October package event to announce that as a sign of
the Administration's seriousness about the epidemic of violence, you want the first $5 billion
in cuts and procurement savings to go to fighting crime, with the balance to go for deficit
reduction.
Ask Biden and Brooks to raise the authorization levels for more cops, more drug
courts, and more boot camps/prisons.
4
If your schedule permits, join Drug Director Brown and Attorney General Reno
at Wednesday's opening of the D.C. drug court, which was funded through an HHS grant
from the Clinton Administration.
Use every appropriate opportunity during the House/Senate debates on the crime
bill and the spending cut package to stress the importance of bold, immediate action.
5
THE WHITE HOUSE
WASHINGTON
October 25, 1993
MEMORANDUM FOR THE PRESIDENT
FROM:
BRUCE REED
JOSE CERDA III
SUBJECT:
CRIME BILL FUNDING
I.
ACTION-FORCING EVENT
The crime bill will be taken up on the Senate floor and in the House Judiciary
Committee next week. As the crime issue takes on increasing urgency in Congress and the
countryside, we face the prospect of a bidding war in both houses, in which Republicans and
even liberal Democrats compete to prove that they care more about crime than the
Administration. Senator Biden and others are urging us to pre-empt this debate by pledging
more resources for cops, drug treatment, and prisons.
II.
BACKGROUND
A. House Update
The outlook for passing some kind of crime bill by Thanksgiving may have improved
significantly. In the House, Chairman Brooks has given up trying to find habeas reform and
death penalty provisions that can attract a majority of House Democrats, and has decided to
postpone consideration of those issues until next year. The Black Caucus opposed his habeas
proposal, even though it was more liberal than ours and much more liberal than current law,
and he does not believe he could get a majority to vote the crime bill out of committee
without substantial prodding from the Administration or unacceptable revisions in habeas.
Brooks plans instead to break out the key components -- cops, boot camps, drug
courts, Safe Schools, and the Brady Bill -- and pass them all separately. If the Republicans
go along, the crime measures can then be passed quickly under suspension in the House, and
easily reconciled with Senate versions. This strategy reduces the chance of a gridlocked
conference, and should assure that the Brady Bill and most key elements of the crime bill will
be on your desk by Thanksgiving.
Biden is considering a similar strategy in the Senate, but he has less control over the
outcome. Hatch may agree to drop habeas, but Gramm and other Republicans will force
-2-
death penalty votes at every turn -- and most will probably pass. The leadership in both
houses may have to commit to considering a death penalty/habeas reform bill at some point.
B. What to Do About the Bidding War
Momentum is building within the Congress and around the country to do more on
crime -- and the chance that the death penalty may not be part of this year's final package
will only increase pressure on Democrats to come out for more cops and more money for
state and local prisons.
Before introducing the House and Senate crime bills in September, Brooks and Biden
scaled back the authorization levels from $8.9 billion in last year's conference report to
around $5.9 billion this year. At the time, they were concerned about deflecting criticism
over how to pay for these programs. With crime emerging as the number one issue in the
country, that concern is out the window.
Now Biden, John Kerry, and other Senate Democrats are concerned that the
Republicans (and some of their own Democratic colleagues) will try to do to us on crime
what they did to us last week on drugs: beat up on this Administration for being unwilling to
spend more than the last one. Biden recognizes that these criticisms are unfair, but he
expects his colleagues to make them anyway. He fears that our $6 billion crime bill will
quickly become somebody else's $12 billion crime war.
There is no way to stop this train in the Senate, where every imaginable get-tough
amendment is likely to pass with large bipartisan majorities. (Biden told us that Senators
Feinstein and Moseley-Braun plan to offer an amendment to let states try 12-year-olds as
adults, even in capital cases, and other Democrats will offer truth-in-sentencing amendments
to make states that want prison funds guarantee that their inmates will serve at least 85% of
their sentence.) The Republicans will add $2-3 billion for prisons, the Democrats will add
more money for drugs, and both sides will get behind more money for cops. Even deficit
hawks from low-crime states, like Conrad and Dorgan, are leading the charge to throw more
money at the crime problem.
Biden strongly believes that the Administration needs to seize control of the issue by
upping the ante. On Friday, Mack McLarty convened a meeting with the Attorney General
and White House senior staff to address this matter. There was no disagreement on the
merits or the politics of putting more money into the Administration's key anti-crime
programs; the only issue was money.
That meeting produced one recommendation for how you can take the initiative in a
responsible but aggressive manner, by claiming a little more credit for a decision you've
-3-
already made but few know about: to earmark part of the October spending cuts package for
the crime bill.
Two weeks ago, you and the Vice President agreed to commit $3+ billion of the $10+
billion in spending cuts and procurement savings to fully fund the crime bill. The $3+ billion
figure represents the difference between the $3.4 billion already in the Justice Department's
FY94-99 planning baseline for community policing, and OMB's estimate of what all the
programs in the Biden-Brooks bills would actually cost. (It adds up to more than $5.9 billion
because some of the authorization levels in the crime bill are set at "such sums.")
Last week, Leon Panetta sent you a memorandum advising you not to promise to
"fully fund" the entire crime bill (except for community policing), because we will also have
to find room in next year's budget for other Justice priorities, such as immigration and health
care fraud, as well as contemplate some difficult cuts in federal law enforcement. Moreover,
at least $1 billion of the $6 billion in the current bill goes for programs and authorization
levels that Biden and Brooks inserted at the request of other members, which Justice has no
intention of funding and which duplicate other initiatives under way at other agencies.
Rather than committing $3+ billion from the spending cuts package to "fully fund" a
hodgepodge of crime programs, we recommend earmarking $5 billion in savings from the
October package and procurement reform to the Administration's three crime priorities: more
cops, drug courts, and boot camps/prisons.
We still wouldn't be fully funding the crime bill, but the combination of $3.4 billion
from the Justice planning baseline and $5 billion from the October package and procurement
reform would enable us to increase the community policing authorization from $3.4 billion to
$4.9 billion (which will fund between 60,000 and 70,000 cops); increase the drug court
authorization from $1.2 billion to $1.5 billion (which will fund drug treatment and certainty
of punishment for an estimated 250,000 minor drug offenders); and increase the boot
camp/regional prison authorization from $200 million to $2 billion (which will fund an
estimated 75,000 boot camp slots, 15,000 three-year prisoner slots, and drug treatment for
200,000 criminal addicts). The rationale would be that the Administration wants to stress a
few big-ticket law enforcement priorities in the bill, but cannot assure funding for the rest.
There are several advantages to this strategy:
1. We could get 60-70,000 cops (instead of 50,000), and address several members'
concern that some cities may need a slightly higher federal match than currently
contemplated;
2. We could blunt our drug critics by committing some real money to drug courts, an
approach which has the strong support of the Attorney General and the Drug Director;
3. We could head off the pounding we'll take from Republicans over money for
prisons, which will pass whether we like it or not. Our bill will enable states to use that
prison money for boot camps;
4. We could give the spending cuts package and procurement reform a boost by tying
them to a popular and immediate issue.
Moreover, there is a natural link between reinventing government and fighting crime:
the whole point of the Vice President's effort has been to steer government away from things
it doesn't know how to do, into things government can do best. You made this connection
many times in the campaign, when you said you wanted to reduce the bureaucracy by
100,000 and use the money to help put 100,000 new police on the street.
This strategy is not without some cost. First, if we commit $5 billion of savings from
the October package to crime, we will fall short of some members' $10 billion target for
deficit reduction. Second, if the October package doesn't pass, we may be criticized for
passing a crime bill that has not yet been paid for. But that's true whether we commit $3
billion or $5 billion -- and if Congress votes down our spending cuts, it won't be our fault if
we can't fund everything in the crime bill. Moreover, we can come back next year with any
spending cuts that fail this time around and use them to offset crime-related Justice spending
in FY95.
You should also be aware that like every other department, Justice faces a serious
funding crunch in FY95, even though its planning baseline shows the largest percentage
increase from 1994 to 1995. Justice has been handed several new initiatives, including
immigration and health care fraud. These initiatives, together with other new programs at
other departments, will present a series of tough choices in nailing down the FY95 budget.
For example, while funding for state and local law enforcement assistance goes up
dramatically, funding for federal law enforcement may decline.
The Attorney General summed up her concerns in one word: "money". She is willing
to commit to more drug courts, cops, and boot camps -- so long as the White House is
willing to commit the money. She does not want to be forced down the road to cut FBI and
DEA agents to make room in the budget for expansions in other law enforcement assistance.
Panetta's memorandum spells out OMB's concerns. In summary, OMB wants you to
understand that every program is in competition with something else. We will not be able to
fully fund all the authorizations in the crime bill and all the potential new initiatives
everywhere else.
We agree that those concerns will have to be addressed early next year in the broader
context of the FY95 budget. Unless and until Congress keeps its end of the bargain by
agreeing to your spending cuts, you cannot be expected to spend money you don't have.
-5-
If you are willing to commit a substantial portion ($5 billion) of the spending cut
package to crime, we recommend that you consider the following course of action:
Use Tuesday's procurement/October package event to announce that as a sign of
the Administration's seriousness about the epidemic of violence, you want about half the
spending cuts and procurement savings to go to fighting crime, with the balance to go for
deficit reduction.
Ask Biden and Brooks to raise the authorization levels for more cops, more drug
courts, and more boot camps/prisons, as suggested above.
If your schedule permits, join Drug Director Brown and Attorney General Reno
at Wednesday's opening of the D.C. drug court, which is being funded through an HHS grant
from the Clinton Administration.
Use every appropriate opportunity during the House/Senate debates on the crime
bill and the spending cut package to stress the importance of bold, immediate action.
October 22, 1993
MEMORANDUM FOR CAROL RASCO
DAVID GERGEN
FROM:
Bruce Reed
Jose Cerda III
SUBJECT:
Crime Options
We have two problems to discuss at this morning's meeting:
1) The upcoming bidding war in the Senate, where even liberal
Democrats will accuse us of doing too little to fight crime if we
don't raise the stakes ourselves; and 2) a possible Black Caucus
mutiny in the House Judiciary Committee over the death penalty,
which needs to be headed off before Tuesday's markup.
We do not expect to resolve these questions at the meeting
with the Attorney General. The purpose of the meeting should be
to discuss what options we should present to the President.
1. The Senate
Biden and Brooks scaled back the authorization levels to
$5.9 billion to deflect criticism over how to pay for these
programs. Given the current frenzy in Congress and the
countryside to do something about crime, that concern is out the
window. The Republicans are now poised to do to us on crime what
they did earlier this week on drugs: accuse the Democrats of
spending less on crime now than the last Administration. And not
just Republicans: liberal Democrats will chime in with the same
criticism, and point fingers at the Clinton Administration. Our
$6 billion crime bill will become somebody else's $12 billion
crime war.
There is no stopping this train. As David said yesterday,
the only question is whether we get in front of it or get
flattened by it.
We see a way for the Administration to get ahead of this
frenzy in a responsible but aggressive manner, by taking a little
more credit for a decision the President has already made -- to
earmark part of the October spending cuts package for the crime
bill.
Last week, the President and Vice President agreed to commit
$3.5 billion of the $10+ billion package to fully fund the crime
bill. (This number, which came from OMB, represents the
difference between the $3.4 billion already in the FY95-99 DOJ
baseline for community policing, and OMB's estimate of what all
the programs in the crime bill would actually cost. It adds up
to more than $5.9 billion, because some of the authorization
levels in the crime bill are set at "such sums.")
Leon Panetta has prepared a memo for the President arguing
that except for community policing, we should not promise to
"fully fund" these other programs, because we also have to find
room for some other DOJ priorities, such as immigration. We
agree. At least $1 billion of the $5.9 billion in the current
bill is for programs and authorization levels that Biden insisted
on and DOJ never intended to fund. Biden and Brooks attached a
$300 million Safe Schools program which the Administration would
fund elsewhere, through the Education budget.
Rather than committing $3.5 billion from the spending cuts
package to "fully fund" a hodgepodge of crime programs, we
recommend that earmarking $5 billion from the October package to
three crime priorities: more cops, drug courts, and boot
camps/prisons. This move would help us on several fronts:
1) We could commit to 60,000 cops and lift the $75,000 cap
for big cities, so they get at least a 50% federal match;
2) We could blunt our drug critics by commiting some real
money to drug courts, an approach which the Attorney General and
Drug Director are strongly behind.
3) We could head off the pounding we'll take from
Republicans over money for prisons, which will pass whether we
like it or not.
4) We might give our spending cuts package a boost by tying
it to the hottest political issue in the country.
We still wouldn't be fully funding the crime bill, but the
combination of $3.4 billion from the DOJ baseline and $5 billion
from the October package would allow us to say that we would try
to fund $4.9 billion in cops (60,000), $1.5 billion in drug
courts (drug treatment and certainty of punishment for 200,000
minor drug offenders), and $2 billion in boot camps and prisons
(75,000 boot camp slots, 15,000 prisoner slots, and drug
treatment for 200,000 criminal addicts).
Congress will be under increased pressure to pass the
spending cuts package -- and if they don't, it won't be our fault
if we can't fund the prisons. Or we can come back next year with
spending cuts that failed this time around and use them to offset
crime-related DOJ spending in FY95.
We suggest the following plan, if the President agrees:
1) When we introduce the spending cut package next Tuesday,
announce that the first $5 billion in cuts will go to help us
crime, and the rest will go for deficit reduction.
2) Give Biden and Brooks the go-ahead to raise authorization
levels for more cops, more drug courts, and more boot
camps/prisons.
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P002/011
MEMORANDUM
October 20, 1993
TO:
DAVID GERGEN
FROM:
JOE BIDEN
RE:
CRIME BILL ISSUES
I want to follow up on the two Issues we discussed by telephone today.
First, ! ask that you call Bob Scully, of the National Association of Police
Officers, to discuss the Administration's position on the Police Officer's BIII of
Rights. I believe our best shot at resolving the current controversy over whether
this provision should be Included in our crime bill is for you to tell Scully that:
While the Administration supports the Bill of Rights, we do not have
adequate support to win a vote on the Issue at present. Moving forward on the
crime bill without united law enforcement support Imperiis passage of that
critical legislation - with all the aid to state and local law enforcement It
provides. The Administration, like Senator Biden, is commited to moving the Bill
of Rights on another vehicle or stand-alone, and will work to secure the
necessary support for the bill In that context.
Scully is a first-class guy, and I know you understand how important it is
to take his concerns seriously. While I am not certain we can work this out, we
must take our best shot. Scully is now out of the country, but his secretary will
reach him. His office number is (202) 842-4420.
Second, I continue to believe that the elements of our crime bill are
strong, but that additional funds would greatly enhance the real effect It will have
on the crime and violence problems facing the nation. The first key element of
our program, of course, is putting more cops on the street in community
policing programs. I have attached charts that plot how many more cops we get
with additional dollars. I recommend keeping the federal share steady at 75%
(with states matching 25%) and funding all 100,000 new cops over five years
Instead of six, to provide a significant Incentive to states and localities to add
and keep the additional officers.
10-20-93 03:59PM FROM JUDICIARY COMM USS TO 94562215
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2
The second key element of our program IS our focus on separating violent
and nonviolent offenders and targeting each with the appropriate punishment.
In our bill, this means more prisons (with drug treatment) for violent prisoners; It
means building more cost-effective boot camps for nonviolent offenders, and It
means forcing first-time, nonviolent drug offenders (who now are put on
unsupervised probation) to enter "drug court" programs with mandatory
testing/treatment.
I have attached a chart that sets out what the current funding in our bill
buys us in the way of cops, and what It would cost to keep the federal share
constant at 75% for each cop. In addition, there are charte laying out various
funding options for all the key programs In the bill. In comparison to the
Republican's bill, our weak spot is the amount of funding for prisons - we
should at a minimum increase our commitment there, If additional funds are
available. I believe funding these programs will put the Administration
affirmatively behind a major effort to address a primary concern of the American
people - crime and violence.
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FUNDING NOW IN BILL -- ADMINISTRATION PLAN, $3.4 BILLION OVER 6 YEARS
ASSUMPTION : 75% federal match, DECLINES OVER 3 YEARS. Per-Officer Cost of $50.000
$50,000 salary + benefits
FIRST YEAR
SECOND YEAR
THIRD YEAR
federal share --
$37,600
$25,000
$12,500
local share --
$12,500
$25,000
$37,500
1994
1995
1996
1997
1998
1999
TOTALS
CLASS A-FFD $ $200,000.000
$133,325,000
$66,662.500
0
0
0
State/Local
$
$66,662.500
$133,325,000
$199,987,500
$266,650,000
$266,650,000
$266,650,000
# of Police
5,333
5,333
5,333
5,333
5,333
5,333
CLASS B-FED $
$516,675,000
$341,150.000
$172,225,000
0
0
State/Local $
$172,225,000
$344,450,000
$516,675,000
$688,900,000
$688,900,000
# of Police
13,778
13,778
13,778
13,778
13,770
CLASS C-FED $
$238,875.000
$159,250.000
$79,625,000
n
State/Local $
$79,625,000
$159,250,000
$238,875,000
$318,500,000
# of Police
6,370
6,370
G,370
6,370
CLASS D-FED $
$318,525,000
$212,350,000
$100,175,000
State/Local $
$106,175,000
$212,350,000
$318,525,000
1 of Police
0,494
8,494
8,494
CLASS C-FCO $
$358,012.500
$238.675,000
State/Local $
$119,337,500
$238,675,000
+ of Police
9,547
9,547
CLASS Г-ГЕД $
$305,137,500
State/Local $
$101,712,500
# of Police
8,13/
TOTAL POLICE OFFICERS
51.659
TOTAL COST
TO LOCALS
$66,662,500
$305,550,000
$624,062,500 $1,048,750,000 $1,526,112,500 $1,932,962,500 $5,504,100,000
TOTAL COST
TO FEDERAL
$200,000,000
$650,000,000
$649,987,500
$650,000,000
$649,987,500
$649,987,500
$3,449,962,500
THE WHITE HOUSE
WASHINGTON
1-10-94
CONFERENCE RECS
PRom MR.
W(WEBB HUBBELL
DRAFT
January 10, 1994
I.
Budgetary Matters
The Administration should work with the conferees to
ensure that the Violent Crime Reduction Trust Fund is
included in the final version of the bill. We believe
that such a funding mechanism is essential to ensuring
that the promise of the Crime Bill is realized.
The Administration should also work to amend the Senate
omnibus crime bill to authorize using the Trust Fund to
fund the Edward Byrne Memorial formula grants and to
make it clear that other priority matters which
arguably already may be financed through the Trust
Fund, eg. the Brady Act and assistance in housing state
incarcerated criminal aliens, in fact can be.
II. Community Policing
The Administration should continue to strongly support
the community policing program which, in basic form, is
included in the Senate omnibus legislation and passed
the House. We should work to have the program
authorized and funded at the levels in the Senate Bill.
As we work with the conferees to resolve differences
between the Senate and House we should be guided by
four primary objectives: (1) expanding and enhancing
community policing; (2) maximizing the number of
additional police on the streets; (3) being responsive
to provide resources to address pressing needs,
particularly violent crime; and (4) providing the
flexibility necessary to create a manageable federal
awards and oversight process.
To accomplish these objectives we should support
modifications that: (1) give DOJ direct management of
the award process for the maximum manageable number of
larger jurisdictions (probably those over 100,000
population) and have state run, closely monitored,
competitions for smaller ones; (2) adjust the funding
distributions and mandates in a manner which will
provide more funding to the areas with the most severe
crime problems and greatest need for additional police
officers (typically the larger, urban jurisdictions)
and (3) provide increased discretion to the Attorney
General to use the 15% of the funding not mandated for
hiring/rehiring to target funding to jurisdictions and
activities where the greatest impact can be achieved.
DRAFT
III. Federalization of Crime
To further a policy a rational division of
responsibility for investigating and prosecuting crimes
between the federal and state governments, the
Administration should seek to exclude from the final
legislation and leave to the states which have
traditionally handled such matters the Senate
provisions making a federal crime of (1) all murders
committed with a firearm; (2) the use, possession, or
carrying of a firearm during the commission of a state
crime of violence or drug offense; and (3) crimes by or
affecting persons engaged in the business of insurance.
The Administration should support with modification the
Senate provisions concerning Criminal street gang
offenses. The modifications should seek to focus the
offenses on those gangs that have an actual impact on
interstate commerce or commit crimes in more than one
state.
The Administration should support with modification the
Senate provisions concerning Interstate enforcement of
the Violence Against Women Act of 1993. The
modifications should seek to focus the provisions on
the interstate nature of the abuse, and supplement
rather than to duplicate the efforts of local
authorities in this area.
The Administration should continue to review other
provisions creating new federal offenses, eg. parental
accountability for juvenile crimes and obstruction of a
lawful hunt, and seek, where possible, to remove any
where state enforcement is most efficient and modify
others to ensure that federal involvement contributes
to effective law enforcement.
IV. Gun Control
The Administration should strongly support the
Feinstein Amendment banning assault weapons; the
President himself should weigh in with the House
Leadership to press for its inclusion in the conference
bill.
2
DRAFT
The Administration should seek to include in the crime
bill a provision, not in the Senate Bill or House
passed legislation, which would prevent automatic
restoration of firearm rights to persons convicted of
felony offenses whose civil rights are restored by
operation of state law.
The Administration should support the Youth Handgun
Safety Act with modification to make it more easily
enforceable and ensures that the existing five-year
penalty for transfer of a firearm to a minor by a
licensed dealer is not diluted.
The Administration should seek to modify section 416 of
the Senate Crime Bill calling for a study of incendiary
ammunition such as "Dragon's Breath". The modification
would convert the study to a total ban on such
ammunition, which has no sporting or law enforcement
use.
V. Regional Prisons
In order to provide needed additional prison capacity
in the most cost effective and sensible manner, and in
a manner which the states will support, the
Administration should work to revise section 1341 of
the Senate Crime Bill (the Regional Prison provision)
to establish a federal grant program funding state
creation and operation of additional prisons, including
regional prisons, to house violent offenders. This
would replace a program under which the federal
government would construct and operate these
facilities.
The Administration should support with modification the
"truth in sentencing" requirements for states
participating in section 1341 programs. The
modifications should focus the provisions to have
states target resources on repeat violent offenders and
to provide incentives to the states to manage their
correctional systems more wisely.
VI. Sentencing
3
DRAFT
The Administration should take a strategic view to
mandatory minimums, arguing for the superiority of the
Guidelines system and that mandatory minimums be
converted to "directives" to the Sentencing Commission
to raise offense levels in certain categories or for
particular offenses, while analyzing each proposed
mandatory minimum provision on a statute-by-statute
basis and taking appropriate positions.
The Administration should support and improve "safety-
valve" or "carve-out" provisions, such as the one in
the Senate Bill, under which certain categories of
defendants would be exempted from mandatory minimums
and would, instead, be sentenced under the Guidelines.
The Administration should support with modification
sections 2408 and 5111 of the Senate Crime Bill (the so
called "three strikes your out provisions"). The
modifications should focus the provisions on violent,
serious recidivists and true career offenders.
VII. Child Pornography
The Administration should continue to support an
amendment to the crime bill to make it clear that the
child pornography statutes encompasses all depictions
of children designed or intended to appeal to a
lascivious interest including depictions not currently
covered which are created by computer imaging or the
doctoring of photographic negatives.
4
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June 20, 1994
MEETING WITH HOUSE AND SENATE DEMOCRATIC LEADERSHIP
DATE:
June 21, 1994
LOCATION: Cabinet Room
TIME:
5:30
FROM:
Pat Griffin, Rahm Emanuel, and Ron Klain
I.
PURPOSE
You are to meet with the House and Senate Democratic
leadership regarding the Crime Bill. The principal purpose of
the meeting is to determine a strategy for moving the Bill, in
light of the complications raised by the Racial Justice Act.
II. BACKGROUND
As we discussed, the Racial Justice Act has the potential to
imperil passage of the Crime Bill. Even a compromise text will
not avert overwhelming opposition by most prosecutors, and a
Republican filibuster in the Senate.
The House leadership wants racial justice included in the
Conference Report. Dropping it now, they say, will produce deep
conflict with the Congressional Black Caucus. They also fear
that dropping it will imperil the Crime Bill itself, by costing
us many CBC-liberal vote defections on the Rule.
The House leadership believes that, as with the Brady Bill,
a Senate filibuster can be overcome by accusing the Senate
Republicans of partisanship and gridlock. And they suggest that
if it cannot, they will be able to muster House support for a
second Conference on a second Crime Bill -- at which point, it
becomes easier to drop racial justice.
Senate leaders believe that a Senate filibuster over RJA
cannot be broken. They note that the Senate filibuster may not
be limited to Republicans: Senator Byrd, for example, is an
ardent RJA opponent. Given that the RJA lost in the Senate by a
41-59 margin, they note, we would need substantial numbers of RJA
supporters to join us to get the 60 votes needed for cloture.
III. PARTICIPANTS
The Vice President, Speaker Foley, Majority Leader Gephardt,
Chairman Brooks, Majority Leader Mitchell, Chairman Biden, the
Attorney General, Mack McLarty, Leon Panetta, George
Stephanopoulos, Pat Griffin, Rahm Emanuel, Ron Klain and Karen
Hancox.
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IV. PRESS PLAN
The meeting is closed to the press.
V.
SEQUENCE OF EVENTS
You begin the meeting, outlining the issues as suggested in
the attached talking points. You should then recognize the
Attorney General for any comment wishes to add. Then, you allow
the House and Senate leaders to respond. Questions to guide the
discussion are also attached.
VI. REMARKS
Proposed talking points and questions are attached.
Attachment:
Talking points and questions for discussion
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TALKING POINTS
I am very pleased with the work that Chairmen Biden and
Brooks, and the Attorney General, have done to develop a
Crime Bill Conference Report. It is set to contain all of
the anti-crime initiatives most important to me -- 100,000
cops, more punishment, more prisons, and critical new
prevention programs.
One issue complicates this greatly: the Racial Justice Act.
After weeks of work to develop an alternative, I am told
that we have something that will help make the Act more
defensible in the political arena -- but we have no
compromise that will avert strong opposition by the
prosecutors.
Getting this Crime Bill passed as soon as possible has got
to be the highest priority. And I think it is important
that whatever we do on racial justice fits into that.
So my question for Senators Mitchell and Biden is: If some
version of racial justice is in the Conference Report, can
we get it through the Senate? And conversely, for the House
leaders: If racial justice is dropped, can we get the bill
through the House?
QUESTIONS FOR DISCUSSION
[For House leaders:] Given that the CBC is getting almost
$9 billion for prevention in this bill, could they accept
dropping racial justice to preserve these funds? What if
they were offered a DoJ initiative on racial justice, and a
study Commission headed by Justice Blackmun in return?
[For both:] If racial justice is included, and it is
filibustered in the Senate:
--
Could we get to a second Conference? When?
How many cloture votes before we stop trying?
[For Senate leaders:] Can't we break the filibuster by
accusing the Republicans of gridlock on the crime issue?
Won't this be like the Brady Bill again?
[For House leaders:] Does the CBC understand that a second
Crime Bill will be worse for them than merely "Crime Bill
minus racial justice?" Once the Senate GOP is emboldened,
the price for breaking a filibuster will get higher.
[For both:] If RJA is dropped, what assurance do we have
that House Republicans will vote for the Rule? How do we
know that Senate Republicans won't filibuster anyway?
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Keep in mind also that if House Republican votes can be mustered
for the Crime Bill, it will be harder for the Senate Republicans
to sustain their filibuster.
3
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June 17, 1994
MEMORANDUM FOR THE PRESIDENT
FROM:
GEORGE STEPHANOPOULOS, PAT GRIFFIN, RAHM EMANUEL,
BRUCE REED, AND RON KLAIN
SUBJECT:
CRIME BILL -- LEGISLATIVE STRATEGY
We have made tremendous progress toward assembling a final
Crime Bill Conference Report. But one issue -- the Racial
Justice Act -- imperils passage of the bill. The purpose of this
memorandum is to update you on our progress, discuss the options
on this critical issue, and present the options for its
resolution.
Draft Crime Bill Conference Report
We have reached a tentative agreement with the Democratic
Conferees on a final version of the Crime Bill Conference Report.
As currently contemplated, it would include every one of the
seven major initiatives you have proposed to fight crime:
100,000 more police, engaged in community policing;
A ban on semi-automatic assault weapons;
Stiffer punishments for violent criminals, including a
federal death penalty and "three strikes and you're out;"
An attack on youth crime, including boot camps, drug courts,
and anti-gang measures;
New crime prevention programs, including the "YES" program
funded at $900 million;
Initiatives to combat violence against women, rural crime,
and protect victims' rights; and
Funding for states to build prisons to lengthen sentences
for violent criminals.
These measures would be paid for by a Crime Trust Fund, totalling
$30 billion over a six-year period, funded with the savings from
a 252,000 person reduction in federal employment.
Racial Justice Act
This is clearly the most difficult. Brooks says he cannot
get the House Democratic Conferees to support a bill that drops
it; Biden says he cannot win Senate passage of a bill that
includes it. We continue to work around the clock with
prosecutors and RJA proponents on potential compromise texts --
but if no compromise can be achieved (a substantial prospect), we
will have to take a great gamble by either including or dropping
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this provision.
Notwithstanding these difficulties, Chairmen Biden and Brooks
have agreed to work towards a June 21 deadline, so as to permit
enactment of the Crime Bill before the July 4th recess.
Proposal for June 21 Event and Subsequent Strategy
We will continue our talks and negotiations, in anticipation
of formal Conference meetings beginning on June 15th. We will
need an aggressive communications plan in the week of June 15 to
June 22, the period when the debate over the Conference Report
will be joined, and the images associated with each side will be
shaped in the public mind.
The Conference meeting on June 15 will be devoted to
posturing -- and be followed by some outreach efforts to
Republicans, who we fear will remain unwilling to join us in
breaking gridlock on this issue. Thus, the Chairs currently plan
to set a second, and final Conference meeting for June 21st.
On that morning, Brooks and Biden would come to the White
House with all of the Democratic Conferees, to announce their
agreement with you on a final Conference Report. They would
reconvene the Conference that afternoon to ratify that agreement.
We would then anticipate House action on the Conference
Report later in that week, and Senate action during the week of
June 27th. The timing on the Senate vote is set to back a
Republican filibuster up against the recess, and to take
advantage of Senator Mitchell's offer to threaten to keep the
Senate in to break the filibuster.
We need to begin talks with the House and Senate leadership
to attempt to "lock in" this timetable. We need their support
and commitment to insure that floor time is available to get this
bill done.
Additional Republican Strategy
In addition to continuing to work to develop a Conference
Report that is consistent with the President's objectives, and
capable of winning broad support in Congress, we need to focus on
House and Senate Republicans specifically:
House GOP: We should target those 65 Members who voted for
the Crime Bill on final passage initially.
Senate GOP: Winning some early endorsements -- before Sen.
Dole issues the filibuster rallying cry -- is critical to
our success.
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June 14, 1994
MEMORANDUM FOR MACK MCLARTY
FROM:
RAHM EMANUEL, PAT GRIFFIN, BRUCE REED,
RON KLAIN AND KAREN HANCOX
SUBJECT:
CRIME BILL -- LEGISLATIVE STRATEGY ISSUES
Since the Attorney General met with all the House and Senate
Democratic Conferees last Thursday, vast strides have been made
toward agreement on a potential Crime Bill Conference Report.
The purpose of this memorandum is to update you on this progress,
discuss the timing of the next steps towards enactment, and
identify five major problems that remain.
Items included in the "Chairmen's Mark"
For the past two weeks, we have been working with Chairmen
Biden and Brooks to develop a "Chairmen's Mark," to guide the
subsequent development of the Conference Report. Substantively,
this has been very successful for us: though we have not gotten
every program we wanted, the Chairmen's Mark will ultimately
include every one of the seven major initiatives the President
proposed to fight crime, These are:
100,000 more police, engaged in community policing;
A ban on semi-automatic assault weapons;
Stiffer punishments for violent criminals, including a
federal death penalty and "three strikes and you're out;"
An attack on youth crime, including boot camps, drug courts,
and anti-gang measures;
New crime prevention programs, including the "YES" program
funded at $900 million (we asked for $1 billion);
Initiatives to combat violence against women, rural crime,
and protect victims' rights; and
Funding for states to increase certainty of punishment, and
build prisons to lengthen sentences for violent criminals.
These measures would be paid for by a Crime Trust Fund, totalling
$30 billion over a six-year period (we had wanted to keep the
spending to $28 billion), funded with the savings from a 252,000
person reduction in federal employment.
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Remaining Potential Pitfalls
There are five potential pitfalls, listed in escalating
significance, that could derail a final agreement:
(1) Schumer. Right now, because we have dealt so exclusively
with Brooks, Schumer is miffed. He needs to be stroked,
particularly if we want his help in selling compromises on
RJA and Assaults. Also, he wants us to modify our Community
Policing program, to allow funds to be used for purposes
other than hiring cops, so long as the expenditures result
in more police being on the streets (e.g., hiring
secretaries so police officers do not do clerical work).
(2) YES. The House and Senate Labor Committees want us to
abandon this as a distinct program, and consolidate it with
existing job training efforts. We need to boost Kennedy and
Ford's support for our program if we want to see it included
as a separate initiative.
(3) Prisons. We have yet to achieve an agreement on a grant
program that satisfies all the major House and Senate
players. To win passage of the Bill, the result on this
issue must satisfy House moderates (led by Rep. Chapman) and
Senate moderates (led by Sens. Dorgan and Conrad) -- but the
two groups themselves are at odds.
(4) Assault Weapons. Unless we compromise with ban opponents,
the inclusion of this in the Crime Bill may cost us 35-45
Democratic votes, and 40-50 Republican votes in the House --
enough to prevent final passage. We believe we can achieve
an agreement with Chairman Brooks on a ban that is more
sweeping than Sen. DeConcini's original proposal, but more
narrow than the House-passed bill. It would ban 18 (of 19)
listed guns, "copy cats" of those guns, and magazines
holding 15 or more rounds; it would not ban additional guns
based on their characteristics. We will be blasted by Sens.
Metzenbaum and Feinstein, and perhaps Rep. Schumer (see
above) for "caving" to Chairman Brooks.
(5) Racial Justice Act. This is clearly the most difficult.
Brooks says he cannot get the House Democratic Conferees to
support a bill that drops it; Biden says he cannot win
Senate passage of a bill that includes it. We continue to
work around the clock with prosecutors and RJA proponents on
potential compromise texts -- but if no compromise can be
achieved (a substantial prospect), we will have to take a
great gamble by either including or dropping this provision.
Notwithstanding these difficulties, Chairmen Biden and Brooks
have agreed to work towards a June 21 deadline, so as to permit
enactment of the Crime Bill before the July 4th recess.
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Proposal for June 21 Event and Subsequent Strategy
We will continue our talks and negotiations, in anticipation
of formal Conference meetings beginning on June 15th. We will
need an aggressive communications plan in the week of June 15 to
June 22, the period when the debate over the Conference Report
will be joined, and the images associated with each side will be
shaped in the public mind.
The Conference meeting on June 15 will be devoted to
posturing -- and be followed by some outreach efforts to
Republicans, who we fear will remain unwilling to join us in
breaking gridlock on this issue. Thus, the Chairs currently plan
to set a second, and final Conference meeting for June 21st.
On that morning, Brooks and Biden would come to the White
House with all of the Democratic Conferees, to announce their
agreement with you on a final Conference Report. They would
reconvene the Conference that afternoon to ratify that agreement.
We would then anticipate House action on the Conference
Report later in that week, and Senate action during the week of
June 27th. The timing on the Senate vote is set to back a
Republican filibuster up against the recess, and to take
advantage of Senator Mitchell's offer to threaten to keep the
Senate in to break the filibuster.
We need to begin talks with the House and Senate leadership
to attempt to "lock in" this timetable. We need their support
and commitment to insure that floor time is available to get this
bill done.
Additional Republican Strategy
In addition to continuing to work to develop a Conference
Report that is consistent with the President's objectives, and
capable of winning broad support in Congress, we need to focus on
House and Senate Republicans specifically:
House GOP: We should target those 65 Members who voted for
the Crime Bill on final passage initially.
Senate GOP: Winning some early endorsements -- before Sen.
Dole issues the filibuster rallying cry -- is critical to
our success.
Keep in mind also that if House Republican votes can be mustered
for the Crime Bill, it will be harder for the Senate Republicans
to sustain their filibuster.
3
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JOSE:
Office of the Attorney General
Washington, D. O. 20530
Fyi, Rahm
March 1, 1994
MEMORANDUM FOR THE ATTORNEY GENERAL
FROM:
RON KLAIN
SUBJECT:
THREE STRIKES PROPOSAL
Attached is the draft of the "three strikes and you're out"
proposal, which you have previously reviewed. It is being
presented this morning at a House Judiciary subcommittee hearing
today, by Acting Deputy Attorney General Jo Ann Harris.
Major Features of the Draft
The draft embodies the President's pledge to have a federal
"three strikes" law: a law that will impose life imprisonment
when a defendant is convicted, in federal court, of his third
serious violent felony against another person (the first two
strikes can be federal or state crimes).
Major issues or controversies addressed by the proposal are
as follows:
Life Sentence: "Life" would be real life -- not merely a
term of years.
Covered Offenses: The law would cover specific violent
offenses against another person (such as murder, rape, armed
robbery, arson, shooting someone) ; it excludes property
crimes and non-violent offenses, such as drug sales. A
catch-all (felonies serious enough to merit a 10-year term,
where an element of the crime is the use or threat of force)
is also included. [As such, it is somewhat narrower than
the two proposals that passed the Senate (Sen. Lott's and
Sen. Gramm's) because it does not cover non-violent drug
crimes or property crimes.]
Exception: Robberies or "catch-all" felonies do not count
as "strikes" if the defendant can prove that he did not use
a gun, or did not cause serious bodily harm to his victim.
Timing: The statute is a recidivism law -- it only applies
when someone is caught, convicted, released, and then
commits a crime again, and then again. Thus, someone who
commits three felonies on a single crime spree is not
covered. On the other hand, there is no time limit for the
three convictions: convictions at ages 18, 35, and 50, for
example, would count as three strikes.
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The best statistics available suggest that the law would cover
approximately 200 federal defendants annually, nationwide.
Likely Questions and Answers
Q.
who supports your plan? Who opposes it?
A.
We have worked hard in the Department of Justice to
craft the best possible three-strikes provision, one
that targets the truly dangerous offender, and gets him
or her off the streets for good. We hope that, so
drafted, it will have broad bipartisan support on
Capitol Hill.
Q.
Is your proposal narrower than the Senate's? Is it
weaker?
A.
Working with the U.S. Attorneys and the career
prosecutors in the Justice Department, we have crafted
a provision that goes right at the precise people who
need to be taken off the streets for good -- repeat,
serious, violent offenders. That targetting is both
tough and smart.
Q.
Won't your proposal lock up geriatrics?
A.
For deterrent purposes, life should be life -- we do
not want to bet innocent lives on a criminal becoming
"safe" at some specific age (i.e., age 55 or age 60).
Also, we do not want to reinstitute a parole-type
hearing into the federal system.
Q.
Doesn't your law miss the mass-murderer, who kills 3,
5, or 10 people without being caught?
A.
Many other laws -- including the death penalty -- exist
to deal with mass murderers and crazed criminals on a
crime spree; this is a single statute, to deal with a
single problem: revolving door repeat offenses by
violent criminals. Moreover, without a timing rule, a
19-year old who holds up three stores on a weekend
would go to jail for life.
THE WHITE HOUSE
WASHINGTON
June 28, 1993
MEMORANDUM FOR CAROL RASCO, BRUCE REED and JOSE CERDA
FROM:
RON KLAIN RAK
SUBJECT:
HABEAS CORPUS REFORM
Attached is the President's response to the memorandum
you asked me to prepare last week, regarding habeas corpus
reform.
As I have not been involved in this issue -- and would
prefer to stay out of the difficult dealings with the Justice
Department, with which I am working closely on judicial
nominations -- I will leave it to you to coordinate further
action from this point.
Also, because every time I get involved in this issue,
my phone rings off the hook with calls from the Hill, I would
prefer that my technical assistance to your office on this matter
remains "anonymous." Thanks.
(6/28/93)
10 Ron Keim
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next but risk alienating Biden -
THE PRESIDENT HAS SEEN
THE WHITE HOUSE
WASHINGTON
June 25, 1993
25 P7: 03
MEMORANDUM FOR THE PRESIDENT
FROM:
RON KLAIN
SUBJECT:
HABEAS CORPUS REFORM
This memorandum outlines the major issues in the habeas
reform debate and our options for resolving them.
I.
BACKGROUND ON HABEAS REFORM
Prosecutors have been urging reform of federal habeas corpus
proceedings for three decades. The reforms are of two sorts:
substantive reforms, that limit the scope of federal court review
of state death sentences; and procedural reforms, aimed at making
these cases move more quickly and towards greater finality.
Until 1990, the defense bar resisted any reforms. For
example, they rebuffed Justice Powell's reform plan, which would
have provided free lawyers for habeas petitioners in exchange for
procedural limits on such appeals (e.g., time limits on filing,
and a strict "one-bite-at-the-apple" rule). Reform proposals
from Senate moderates, like Bob Graham, were also rejected.
In 1989-90, a series of conservative Supreme Court rulings
altered the dynamic on habeas reform. By making it harder for
death row inmates to win habeas relief, the Court lessened
pressure on the right to compromise to win legislative habeas
reform -- and created interest on the left in seeing reform
debated, as a vehicle for reversing the adverse Court decisions.
The 1991 Crime Bill Conference Report included a sweeping
habeas reform provision, drafted by Democrats (Biden and Brooks).
It limited the time for filing petitions to one year, and limited
death row inmates to a single petition (with few exceptions), in
exchange for free lawyers to prepare these petitions. It also
gave death row inmates some relief from the adverse Supreme Court
decisions. Largely because of this final provision, state and
local prosecutors bitterly opposed the Conference Report.
II. CAMPAIGN STATEMENTS
During the campaign, you said you would have signed the
Crime Bill Conference Report, but you did not separately endorse
the habeas reform language in it.
On the habeas issue specifically, you called for "reforms on
death row appeals," expressing interest in a range of proposals.
In one statement on the issue, you spoke positively of several
reform plans, "such as the ABA proposal and the Powell Report."
Because these proposals, while alike at a general level,
have differences that are significant to practitioners in the
field, there has been confusion over your position on habeas
reform. This has fueled expectations, on the part of both the
left and the right, that you would alter the Conference Report in
a manner that either side would find more to its liking.
III. MAJOR HABEAS REFORM ISSUES
Most of the major reform plans being considered are of a
like design at an abstract level: some limits are placed on the
filing of habeas petitions in exchange for death row inmates
getting free lawyers to file those petitions. Within this broad
construct, five major issues are in dispute. They are:
A. Procedural Issues
Time Limit: How much time will a prisoner have to file his
petition? Current law has no time limit whatsoever. The ABA
proposed a limit of 18 months; Justice Powell put it at 6
months; the Conference Report set the time at 12 months.
Repeat Petitions: The current habeas statute sets no limit
on multiple filings by death row inmates -- though Supreme
Court case law makes repeat filings difficult. All reform
proposals limit prisoners to a single petition, but all also
contain some exceptions. The issue is: How broad are the
exceptions? The ABA Report had a broad exception; the
Powell Report had a narrow exception. The Conference Report
tilted more towards the ABA approach.
Counsel Standards: The reform plans all required states to
provide lawyers to death row inmates for the preparation of
habeas petitions; they differed on whether such lawyers must
meet minimum competency standards. The Powell plan had no
standards; the ABA plan had extensive standards. The
Conference Report had modest competency standards, keyed on
years of experience.
B. Substantive Issues
Retroactivity: Before a 1989 Supreme Court case (Teague V.
Lane) held otherwise, a prisoner could challenge his death
sentence based on a favorable court ruling that post-dated
his trial and appeal. The defense bar wants this right
restored; prosecutors oppose a reversal of the this line of
cases. The Conference Report sided with the defense bar, to
some extent; this was its most controversial provision.
2
"Full and Fair:" The cornerstone of the Bush habeas reform
plan was a rule that death sentences could not be challenged
if the defendant had a "full and fair" hearing in state
court. This is the prosecutors' ultimate goal -- it
effectively ends federal habeas review of state death
sentences -- and passed the Senate in 1991.
IV. CURRENT OPTIONS
Though I have not been involved in this issue since the
Transition, as I see it, you have six options:
(1) Crime Bill Without Habeas Reform: You could propose a
Comprehensive Crime Bill without any habeas reform
provision. It would still have a Brady Bill, a death
penalty, and a policing plan.
(2) Adopt Conference Report Habeas Language: You could adopt
the language of last year's Conference Report as "your"
proposal. There is a logical reason for adopting this text
(it is long-standing and well-known), but it is bitterly
opposed by State Attorneys General and local DAs.
(3) Back a "Biden-Prosecutor" Deal: Lengthy negotiations
between Senator Biden and the Attorneys General are about to
come to fruition; District Attorneys will be neutral, and at
least some defense bar leaders will grudgingly accept the
agreement. Our prompt endorsement of any agreement will
help make it a consensus view.
The substance of this plan would be a six-month statute of
limitations; a tough rule against multiple petitions;
counsel standards akin to those in the Conference Report;
and some relief (though not much) for the defense bar on the
retroactivity issue.
(4) Convene our Own Negotiations: You could direct the Attorney
General to summon the parties to an administration-sponsored
negotiation. This, however, is only likely to drag out the
process of resolution, and is unlikely to produce results
different from those in the Biden-Prosecutor talks.
(5) Draft a Limited Reform Proposal: We could assemble our own,
limited reform proposal -- one that would only address the
least controversial habeas reform issues -- but would at
least be some reform. For example, we could package a one-
year limit on filing, linked with a moderate version of the
single-petition rule -- in exchange for free lawyers with
very minimal counsel standards. While no one would be
excited about such a limited reform plan, no one would
strongly oppose it.
3
(6) Draft a Comprehensive Reform Proposal: Finally, and most
ambitiously, we could draft a comprehensive reform proposal
that would address all the major issues. If we go this
route, I would recommend a proposal positioned slightly to
the right of last year's Conference Report text; namely:
A one-year limit on filing petitions;
Limit petitioners to a single filing, except where
they have new evidence of innocence, or new evidence
that their death sentence is unconstitutional;
Provide counsel for filing habeas petitions, subject to
experience-based competency standards;
Have a very limited relief provision on the
"retroactivity" question.
Such a "Clinton proposal" would anger both the left and the
right, but could probably win support among neutral observers in
this area (i.e., bar groups, editorialists, and the like).
V.
RECOMMENDATION
I favor the third option above; i.e., getting behind the
emerging agreement between Senate Democrats and the prosecutors.
I do not think it is worth the effort or the expenditure of
political capital to fashion our own reform plan, when we can
more easily get behind a compromise plan assembled by others.
Why? Habeas corpus reform will never be the touchstone of a
Clinton Crime Bill; our goal should be to get a fast and
plausible resolution of this troublesome issue, and move ahead on
a Crime Bill that advances those matters that are at the heart of
your anti-crime agenda: passing a Brady Bill, putting 100,000
more police on the streets, restoring an enforceable death
penalty, and launching innovative, new programs to prevent crime.
Thus, we should be looking for the resolution that gets us
out of this issue as quickly and simply as possible -- and
adopting a settlement negotiated by others is the option that
best fits this objective.
4
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TOO
QUI PRO DOMINA * * JUSTITIA OF 73 SECURITY A
Office of Policy Development
United States Department of Justice
10th and Constitution Ave. NW
Washington, D.C. 20530
456-7028
TO: Brucz Rzzd
FAX: ( )
FROM: Gracz Mestalli
VOICE: (202)
FAX: (202) 514-8639
Total Pages (excluding this cover):
Additional Message:
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02
July 14, 1994
MEMORANDUM FOR LEON PANETTA
FROM:
RON KLAIN
SUBJECT:
THE RACIAL JUSTICE ACT
One key issue in the Crime Bill Conference is the "Racial
Justice Act." This provision was narrowly passed by the House, but
defeated in the Senate, when the two bodies considered their
respective versions of the Crime Bill.
The Racial Justice Act was developed in response to the
Supreme Court's decision in McCleskey V. Kemp (1987), holding that
statistical evidence that the death penalty was being applied in a
discriminatory manner could never suffice to establish a claim that
the death penalty was being administered in an unconstitutional
manner.
In response, the RJA creates a cause of action so that a
statistical showing of discrimination on the basis of the race of
the defendant or victim can be actionable; specifically, under the
RJA, such statistical evidence shifts the burden to the state to
show that discrimination was not the reason for the death sentence
being imposed.
CBC-BACKED VERSION
The key provisions of Racial Justice Act as passed by the
House in April are:
A prohibition on putting to death any person -- in state or
federal court -- if the sentence was "imposed based on race";
An inference that a death sentence was "imposed based on race"
if evidence demonstrates that, at the time the sentence was
imposed, the race of the victim or of the defendant was a
statistically significant factor in decisions to seek or
impose a death sentence in the jurisdiction;
A requirement that the government to rebut this statistical
inference, and a limitation on the sort of evidence the
prosecution can use to rebut the statistics;
And more liberal procedural rules in habeas corpus petitions
seeking to raise a discrimination claim.
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As drafted, the RJA would have applied to all persons on death row,
past and future. But to win its narrow victory in the House, the
CBC agreed on the House floor to make the bill prospective only.
Thus, as drafted, the bill makes it very difficult (if not
impossible) for state prosecutors to rebut a statistical case of
racial disparity among defendants -- or among crime victims. This
is what gives rise to the argument by prosecutors that the bill
will, in effect, abolish the death penalty.
In our discussions with Congressman Mfume, we sought various
modifications to the legislation (our views are discussed below)
But Rep. Mfume indicated he would accept only the following changes
to the House passed language:
1. The non-retroactivity provision, as discussed above, that had
been previously pledged on the House floor;
2. A provision making it explicit that the legislation neither
requires or permits a quota system for death penalties;
3. A statement that a claim cannot be made by simply showing a
racial disparity between the general population and those
sentenced to death; and
4. A limitation that defendants could raise these claims only in
occasions. their first federal habeas petition, and not on multiple
These changes were helpful -- but while it was a disagreement over
process, and not substance, that stalled our talks with Rep. Mfume
-- they did not go far enough in our view.
ALTERNATIVE VERSION
Independently of the conversations with Congressman Mfume,
lawyers at the Department of Justice, working in consultation with
Rep. Edwards, had prepared an alternative version of the racial
justice legislation. Beyond the changes outlined above, the DOJ
version makes the following additional modifications:
1. It provides that the burden of proof never shifts to the
government but remains with the defendant: the government's
burden is to produce a nondiscriminatory reason for its
decision;
2. Rather than focusing on statistical evidence, it provides that
an inference is established if the defendant proves a "pattern
or practice" of sceking or imposing death sentences based on
race -- "pattern or practice" being a term of art in civil
rights statutes;
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V 004
3. It removes the RJA provisions modifying traditional habeas law
regarding the presumption of correctness that attaches to
state court findings;
4. It limits use of statistical proof to decisions by prosecutors
and judges, but not juries, because each individual jury is a
one time actor in the process; and
5. It provides more specific guidance as to the order of the
proceeding and the type of evidence that a court could
consider in a challenge.
It was our view that, with these changes, we would have fulfilled
the President's mandate to develop a statute that prevented
discrimination in the death penalty -- without preventing the fair
and effective imposition of that sanction.
Nonetheless, even our version of this racial justice proposal
(when quietly circulated) drew substantial opposition among
prosecutors and Senators. We could not get even one Democratic
Attorney General from a death penalty state to endorse our
compromise (though two or three non-death penalty Democratic AGS
indicated they might be helpful); the DAs have pledged to continue
to fight any proposal in this area, including ours.
Perhaps more importantly, the draft was quietly shared with
several RJA opponents in the Senate (including Senators Byrd and
Graham), and both said that the changes were insufficient to alter
their stand on this measure.
ARGUMENTS ABOUT THE RJA
Proponents of the Racial Justice Act argue that its structure
of allowing statistical evidence to create an inference of
discrimination which must then be rebutted is common in anti-
discrimination law. They dispute the assertion that valid studies
showing patterns of racial discrimination will easily materialize
around the country putting capital sentencing schemes at risk --
the study at issue in McCleskey was expensive and time consuming
and has never been duplicated.
Proponents of the Racial Justice Act also make emotionally
powerful arguments based upon both history -- and current practice.
The history is obvious and well known; the current practice is that
all nine of the defendants for whom the federal death penalty has
been sought on the last year have been African-American. Finally,
for many proponents of the Racial Justice Act, the bill has
symbolic importance beyond its actual effect because it is an
explicit recognition that there is racial discrimination in the
criminal justice system.
3
U 005
DOJ-OPD
Opponents argue that, while discrimination and prejudice
should play no role in the criminal justice system, as drafted the
Racial Justice Act would either shut down the imposition of capital
punishment in the United States because of extensive Iitigation
costs or lead to the imposition of a quota system. They maintain
that it will be easy to demonstrate gross racial disproportions in
the administration of capital punishment and thereby create an
inference of discrimination, it will be all but impossible to rebut
the inference since the government will be unable to point to
factors in the particular case that make it an appropriate one for
the death penalty.
Opponents use this Title VII analogy: in an employment case,
an employer charged with discrimination against a particular
individual for denying a promotion and presented with statistical
evidence showing that African-Americans as a group are much less
likely than others to be promoted can defend by showing that the
particular employee was not qualified for the promotion. But under
the original RJA, a state faced with statistical evidence about
death sentences could not defend by showing that the particular
defendant's sentence was proper given the facts of the crime and
the defendant's prior record.
CONCLUSION
In sum, many of the modifications reflected in the
"alternative version" of the legislation are explicitly designed to
provide responses to the arguments made by opponents. Thus, the
alternative is defensible on policy grounds, and in a principled
debate.
But as noted above, while these changes do provide firm ground
from which to defend against the attacks, the modifications are
unlikely to silence many critics who are as committed to opposing
any version of the RJA as proponents are committing to supporting
the bill.
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001
E QUI PRO DOMINA * JUSTITIA OF 33
*
OFFICE OF THE ATTORNEY GENERAL
FACSIMILE TRANSMITTAL COVER SHEET
DATE:
4/12
TO:
PAt, Rahm Since
FACSIMILE NO.
TELEPHONE NO.
FROM:
Ron
FACSIMILE NO.
(202) 514-9077
TELEPHONE NO.
(202) 514-6909
NUMBER OF PAGES INCLUDING COVER SHEET 4
COMMENTS:
I will be at White House at 7:15am tomorrow, to head to
North Lawn for AG Reno live shot at 7:35. I will return to White House
for 9:00 AG Reno live shot. You can get comments to me at either time.
Thanks.
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002
DRAFT
April 12, 1994
MEMORANDUM FOR THE PRESIDENT
FROM:
PAT GRIFFIN, RAHM EMANUEL, BRUCE REED AND
RON KLAIN
SUBJECT:
CBC REQUEST FOR SUPPORT ON RACIAL JUSTICE ACT
This memorandum analyzes the Congressional Black Caucus'
request for your support for the Racial Justice Act (RJA).
ISSUE
On Tuesday afternoon, the CBC Leadership threatened to lead
a fight against the Crime Bill Rule (scheduled for a vote on
Wednesday), unless you give a prior commitment to support the
Racial Justice Act. (The RJA will be voted upon next week.) The
attached memorandum from the Justice Department explains the RJA
in depth; in brief, the RJA enjoins state death penalties, and
vitiates existing death sentences, if evidence of a statistical
imbalance among the races of capital defendants or victims in
capital cases is demonstrated.
BACKGROUND
To date, you have not supported the RJA, and press reports
have indicated that the Justice Department informally opposes it.
Throughout the drafting of the Crime Bill, we urged proponents of
the RJA to advance a more limited version (one that applied to
federal cases only) that we might be able to embrace. The CBC
rejected any compromise on that issue.
still, notwithstanding this difference on the RJA, we had
near unanimous support among the CBC for the Crime Bill Rule
(until Tuesday afternoon). To that point, 20 members of the CBC
had committed to the Attorney General to support the Rule; 15
were undecided; only two were leaning against. The basis of this
support was our help in insuring that the Rule permitted no cuts,
whatsoever, in the $7 billion in prevention programs the CBC has
backed; and indeed, the Rule does provide that absolute
protection for the prevention grants.
Then, after the Rule was reported from the Rules Committee,
Reps. Kweisi Mfume and John Conyers contacted our legislative
affairs staff to suggest that the CBC might, as a block, work to
defeat the Crime Bill Rule unless it has your prior commitment to
support the RJA when the House votes, next week, on an amendment
to remove it from the Bill.
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003
ARGUMENTS FOR AND AGAINST SUPPORTING THE RJA
The attached memorandum makes the substantive arguments for
and against the RJA. The legislative/political arguments are:
Arguments in Support
Supporting the RJA will get us the CBC votes we need to pass
the Rule -- without their support, we may lose the Rule.
We may be able to use a pledge of support for RJA to extract
commitments from the CBC to support the Crime Bill on final
passage (currently, we have fewer than 5 such commitments).
Support for RJA will improve long-run relations with the
CBC, civil rights groups, Rev. Jackson, and others who are
concerned about our policies on crime and welfare reform.
Arguments in Opposition
Support for RJA could drive away conservative House Dems,
who might be more skittish in joining us to defeat GOP
attacks on a "weak" bill and a "restrictive" rule.
Support for the RJA will alienate prosecutors, law
enforcement, and DAs, who vigorously oppose it -- and will
fervently oppose the Crime Bill if RJA is included in it.
Support for the RJA will lead to long-run attacks on the
crime issue, as the RJA has been called "quota justice" and
the "effective abolition of the death penalty."
One other issue is: If the Rule does fail, where do we go next?
Back to the CBC (whose demands will then escalate), or to the
Republicans, whose support we could gain by granting them more
amendments -- but only at the price of doing further, and perhaps
lasting, damage to our long-run relationship with the CBC.
SERIOUSNESS OF THE THREAT
Our subsequent recontacting of CBC members suggest that
several, perhaps even many, will stand by their prior commitment
to support the Rule. Our administration is continuing to work
the CBC, and is being helped by supportive black Mayors. Also,
the Speaker will meet with the CBC on Wednesday at lunchtime, to
promise the support of the House leadership on the RJA. This may
also help alleviate any need for a statement from you.
Still, a group dynamic will be in play on Wednesday when the
CBC meets, and the situation could get away from us quickly.
Unknown, and unknowable, is how many other House liberals would
join the CBC in bolting on the Rule: we can win on the Rule even
if the CBC deserts -- but not if they also take 12 more House
Democrats with them.
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OPTIONS
We have three options for our response to the Mfume-Conyers
request:
(1) Decline the Request. We could refuse to budge, politely,
and hope to hold enough votes to pass the Rule. But where
we go if the Rule loses -- discussed above -- is a major
issue that must be considered.
(2) offer Quiet Help. We could privately pledge that our
legislative affairs staff will help bolster whip efforts on
RJA, without promising your public support for the provision
substantively. If asked about our efforts, we could say we
are helping the CBC as an act of good faith, even though we
do not necessarily agree with their position on the merits.
(3) Authorize Foley to Commit Your Support to RJA. Finally, we
could authorize Speaker Foley to commit your support for the
RJA if he (in conjunction with our analysis) believes that
it is the only way to get the votes needed to pass the Rule
without Republican help. Certainly if this commitment is
offered, we should ask for CBC votes on both the Rule and
final passage -- because if the RJA survives, getting
moderate Democratic votes on final passage will be
difficult.
We would recommend either of the first two options (at least for
now) as we believe that -- because of our hard work with them on
this bill, and the prevention issue in particular -- we can still
hold several CBC Members on the Rule without moving on the RJA.
DECISION
OPTION 1
OPTION 2
OPTION 3
OTHER:
Attachment
July 14, 1993
MEMORANDUM FOR CIRCULATION
FROM:
BRUCE REED
JOSE CERDA III
SUBJECT:
UPDATE ON CRIME BILL -- INFORMATION
We have all but finalized language with Justice, OMB, Senator Biden and Chairman
Brooks on a modified version of last year's crime bill, which will include (1) the Brady Bill,
(2) a federal death penalty and habeas reform, (3) additional boot camps, and (4) 50,000 new
cops on the beat. (The other 50,000 of the President's 100,000 cops pledge will come from
other initiatives, including $150 million in policing grants already approved by Congress,
$500 million as part of the President's Empowerment Zones legislation, HUD's proposed
Community Partnerships Against Crime (COMPAC), the Department of Education's Safe
Schools legislation, and the public safety component of the President's National Service
proposal.)
Departures from last year's bill include: (1) making Title I of the bill the President's
policing initiative; (2) including a new habeas corpus reform compromise; and (3) omitting
the new mandatory minimums included in last year's bill (but leaving existing minimums
intact).
We are told that both Biden and Brooks want to introduce the bill before the August
recess. We can be ready at any time.
Issues that still need final resolution include:
Habeas Corpus Reform: We are 90% of the way to a "new and improved"
compromise on habeas. Senator Biden and Chairman Brooks have worked with the
National Association of Attorneys General and the National District Attorneys
Association to forge a new compromise. The AGs had their national meeting last
week and supported a general resolution that will allow them to support the new
compromise. The DAs will have their national meeting next week and will consider a
habeas resolution this Sunday.
We can still expect criticism from more conservative, individual AGs and DAs -- as
well as from members of the criminal defense bar and anti-death penalty groups.
-2-
Police Corps: While DPC has emphasized the President's desire to reduce the size
and cost of the Police Corps, but to retain the basic concept, the Attorney General and
Deputy Attorney General have expressed their reluctance to support such a measure.
They have asked for an opportunity to persuade Police Corps sponsors in Congress to
support a fundamentally different approach. Adam Walinsky, the architect of the
Police Corps, does not like the Justice approach. DOJ is scheduled to meet with
Senator Kennedy tomorrow on this matter.
Authorization Levels: OMB, DPC, Justice and the Hill have agreed to authorization
levels for the policing title that will require slightly more funding than is in the
baseline. However, we need to further examine the budget implications of other
authorizations left over from last year's bill.
DROP-BY AND PHOTO OP WITH MAYOR RIORDAN
DATE:
October 21, 1993
LOCATION:
Oval Office
TIME:
1:30 pm
FROM:
Bruce Reed
I. PURPOSE
Mayor Richard Riordan of Los Angeles is in Washington today to testify at a Schumer
subcommittee hearing in favor of the community policing provisions of the crime bill, and to
lobby members of the California delegation to vote for the bill.
Mayor Riordan was elected last year on a promise to put 3,000 more police on the
street. He has offered to do anything to help pass the crime bill, and will be a valuable ally
in showing bipartisan support.
II. BACKGROUND
Los Angeles may be the most underpoliced city in the country, with about half as
many cops per capita as New York or Chicago, less than one patrolling officer per square
mile, and more than 9 violent crimes per sworn officer -- 2-3 times the national average. A
ballot proposition to earmark new taxes for new police received 62% in the 1992 election,
but fell short of the two-thirds vote required for a tax increase. Last week, Riordan
announced a plan called Project Safety L.A. to reorganize and expand the police force by
3,000 over the next four years.
Mayor Riordan may bring along Police Chief Willie Williams, who is also here to
testify for the crime bill. As you know, Chief Williams was a community policing pioneer in
Philadelphia, and has made great strides in Los Angeles. Los Angeles has demonstrated that
more cops can reduce crime: The weekend of the King verdicts, LAPD increased police
presence by 600 officers -- which not only helped keep the peace, but reduced violent crime
by 12% across the city.
Mayor Riordan's only concern about the bill may be a desire to put even more money
into policing. The current version of the bill authorizes $3.4 billion over six years for 50,000
new officers. It requires a local match of 25-50%, and puts a $75,000 cap on what a city
can spend per cop over the life of the grant. (The Attorney General has authority to waive
these provisions.) The average cost of salary and benefits for a new cop in Los Angeles is
$50,000. We are open to suggestions about putting more money in the bill, so long as it
means more cops.
June 23, 1993
MEMORANDUM FOR DAVID GERGEN
FROM:
BRUCE REED
SUBJECT:
GUN VIOLENCE
The Benning Park shooting yesterday underscores the need to pass a comprehensive
crime bill that will give us more police on the streets and fewer guns.
The gunman apparently used a semiautomatic handgun which would not be restricted
by any of the semiautomatic assault weapons bans contemplated in Congress. The purchase
of such a handgun would, however, be affected by the Brady Bill.
If the President visits Benning Park, he should point to the Senate approval last night
of $200 million for community policing -- a downpayment on his 100,000 cops pledge --
which has now passed both houses. He should announce that we will put forward a crime
bill in the next few weeks that includes more cops, the Brady bill, and modified provisions
from last year's crime conference report.
There is no reason to wade into the assault ban debate today -- and we should not
lock ourselves into including an assault ban in the crime bill. But here's a summary for your
information. In the campaign, the President pledged to ban semiautomatic assault weapons
"that have no legitimate hunting or sporting purpose." Three proposals in Congress address
this question:
Senator DeConcini: DeConcini has twice sponsored legislation to ban 9 specific
assault weapons. This legislation does not include copies of the firearms to be
banned. This is the only assault weapons legislation that has actually passed either
house of Congress.
Senator Metzenbaum: Metzenbaum has proposed a lengthier ban on assault weapons
that would give the Secretary of the Treasury the authority to ban future copies.
Opponents of this proposal argue that, constitutionally, a separate act of Congress is
required to ban additional weapons. In any case, this proposal would have trouble
passing either house.
Representative Schumer: Schumer has proposed an assault weapons ban that lists 13
types of weapons and that allows the Secretary of the Treasury to suggest additions or
deletions to the list. Congress would have to vote on each change. This legislation
was defeated on the House floor the day after the Kileen, Texas killings.
We could also ban the importation of assault pistols by executive order, but this
represents a very small fraction of the guns most criminals use.
May 24, 1994
MEMORANDUM FOR DISTRIBUTION
FROM:
RAHM EMANUEL
Rh.
Subject:
Attached Memo
Attached please find a strategy memo on crime through the end of
June.
I cannot emphasize enough how critical it is that you do not
share this material with anyone. Leaks are not only damaging to
the Crime Bill effort, but they are also damaging to the
President.
No presidential events on crime are currently scheduled, and
possible events should not be discussed with anyone outside of
the White House.
DISTRIBUTION:
Liz Bernstein
Jose Cerda
Karen Hancox
Jennifer O'Connor
Chris Lin
Jess Sarmiento
Ken Schwartz
Lisa Mortman
May 16, 1994
MEMORANDUM FOR MACK MCLARTY
FROM:
RAHM EMANUEL
RON KLAIN
BRUCE REED
Subject:
Crime Strategy for May/June
I.
INTRODUCTION
A.
PURPOSE & MESSAGE
Over the next 6 weeks, the President will deliver a number of key
speeches, as Congress finalizes a national Crime Bill. These
simultaneous events should be seen as complementary and as an
opportunity to present a single message about crime and violence.
The commencement addresses and other major speeches that the
President will give over the next month give him the opportunity
to address the nation's moral fabric, i.e. what brings us
together as a country. The purpose of these events is to enable
the President to address the nation's character.
In these speeches, the President will talk about choices that
individuals have to make, and about facing the consequences of
those choices. His rhetoric will focus on challenging
individuals to take responsibility for their actions, for their
lives, and for their communities.
The movement of the Crime Bill through conference gives the
President the opportunity to address the #1 concern of the
American people -- crime and violence -- and to fashion a
response that the administration, and the Democrats, can be proud
of. The purpose of events surrounding the Crime Bill are two-
fold: to secure passage of the legislation, and to identify the
President with the issue of crime.
Pursuing the dual agenda of addressing the moral fabric and
addressing the issue of crime and violence has a third purpose:
to show that the President is breaking gridlock on behalf of the
American people.
B. TIMING
Following is a projected sketch of the next 6 weeks in terms of
timing for the Crime Bill:
May 16 to May 30: A warmup to the Crime Bill conference.
Off-radar meetings between the House and Senate staffs will
take place in this period. The President and Chairman
Brooks continue to communicate, and the Senate will name
conferees.
June 6 to June 13: After members return from Memorial Day
recess, the conference will begin in earnest. The conferees
will hammer out the differences between the two versions in
this period.
Week of June 13: Conferees finish this week.
Week of June 20: The vote in the House will occur.
Week of June 26: The Senate votes on the Crime Bill with
July 4 as key deadline.
II. COMMUNICATIONS STRATEGY
Although there is general consensus on 90% of the Crime Bill
(police, punishment, and prevention), the context in which we
will be pushing for its passage is an adversarial one. The press
will be looking for and playing up the differences between the
House and Senate versions, particularly the more liberal aspects
of the House version. The Republicans, fearful that the
Democrats have stolen the issue of crime, will be looking to deny
the President a victory.
The problematic pieces of the Crime Bill are the following:
Racial Justice Act, Assault Weapons Ban, and the characterization
of the prevention components as pork. The GOP has a political
agenda and will fight us on all three fronts, with the ultimate
goal of portraying the President and the Democrats as soft on
crime.
It is therefore incumbent upon us to pursue a communications
strategy and schedule to push the Crime Bill through Congress
while building the President's strong profile on the issue of
crime (see Washington Post/ABC poll). To this end, we plan to
organize events that highlight the tougher side of the Crime
Bill.
Following is a requested communications schedule for the
conference period. Many of these events could be worked into the
President's existing travel schedule, or could take place in the
DC Metropolitan area.
Midnight Basketball. The Crime Bill provides substantial
funding for prevention programs, including Midnight
Basketball, that are designed to keep kids off the streets
and away from crime. It is critical that we highlight the
prevention side of the bill during conference.
NBC Interview. Tom Brokaw is interested in covering the
President's participation in a Midnight Basketball game,
after which he would interview the President.
New Cops. As you know, the third round of police grants
was announced by the President on Thursday, May 12. The
President could speak to a new class of cops at their
swearing-in.
Robert Taylor Homes. The President's new sweeps policy for
public housing is extremely popular with public housing
residents, as well as with mayors and police chiefs. The
President could meet with Vince Lane and visit Robert Taylor
Homes in Chicago to highlight the sweeps policy and
emphasize the importance of people taking back their
communities. The President will already be in Chicago on
June 17 for the World Cup.
Petaluma, California. The President would go to Petaluma,
California -- the home of Polly Klaas -- to speak to
citizens about community responsibility in the fight against
crime. Here he would talk specifically about 3-strikes,
emphasizing how the citizens of Petaluma helped change our
laws.
Town Hall on Crime. The President should hold a Town Hall
on Crime, which would be broadcast by satellite to the 10
largest media markets. CBS has an offer into the White
House to do this.
DARE Event. DARE already has a request into the Scheduling
Department for the President to sign a Kids Bill of Rights.
DARE is comprised of kids and police officers, and this event
would highlight the balance in the crime bill. (preferably
week of June 13.)
Police Roll Call. The President could attend a police roll
call at a precinct that has community policing. He would
speak to the officers, praising the work that they do on the
streets every day.
Law Enforcement Day at White House. We should organize a
Law Enforcement Day, modeled after the upcoming Armed
Services Day at the White House. Police Officers and their
families would be invited to the White House for a tour,
after which the President could speak to them.
Boot Camp. The President should go to a boot camp to
highlight the job training piece of the Crime Bill.
Meeting with Conferees & Press Conference. The President
should meet with the Crime Bill conferees at the White House
to discuss what they want the Crime Bill to look like.
After the meeting, the President, Senator Biden, and
Congressman Brooks would hold a joint press conference.
(preferably week of June 13.)
Innovative Community. The President should participate in
an innovative community program to fight crime, such as an
Orange Hat Patrol. This would give the President an
opportunity to call on people to take control of their
neighborhoods, and get actively involved in the fight
against crime.
III. PUBLIC OUTREACH
Public outreach is a critical component of a crime communications
strategy. We are most successful when we increase public
attention to our efforts, and thereby increase public pressure on
Congress. In other words, we must get into members' districts.
To this end, Public Liaison will host approximately three
Leadership Days at the White House, featuring the Vice President
and Cabinet members. Invitation lists will be drawn from
targeted members of Congress. See below for discussion of
targeted members.
In addition to Leadership Days, we will gather and disseminate
research on target members' districts. Cabinet members will also
do regional media in targeted districts during the final three
weeks of June.
Attorney General Reno and Senator Bradley are working on a joint
op-ed on the Crime Bill. This will help kill the false notion
that Bradley is critical of the Crime Bill.
Finally, we will continue to work with police organizations to
get them to push for the Crime Bill through phone calls and
public events.
IV. LEGISLATIVE
A. MAJOR SUBSTANTIVE ISSUES OUTSTANDING FOR RESOLUTION
When one looks at the two bills (House and Senate), the extent to
which the resolution of virtually every major issue is clear --
and is likely to be in accord with our wishes -- is astounding.
With one exception (Assault Weapons), all eight of the major
Presidential agenda items have broad support for inclusion in the
final Conference Report.
Two issues dominate the Conference: the Assault Weapons Ban and
the RJA. There are three possible positions we can take on these
issues in Conference.
Include both in the Conference Report:
-- This option will be most popular with editorial pages,
House progressives, and the CBC. It will yield "soft-
on-crime" attacks, and will enrage prosecutors and
police groups around the country.
Winning passage of this mix in the House may be hard,
as some Members who voted for the Crime Bill but
against RJA or Assault Weapons (and particularly the 63
members who voted against both) may vote against the
Conference Report.
And overcoming a filibuster in the Senate is especially
difficult, as the RJA has just 41 votes in the Senate
and the Assault Weapon Ban is short of 60 votes itself.
Include only Assault Weapons in the Conference Report:
This scenario would anger the CBC and other House
liberals; Brooks may resist it, making it difficult to
win in Conference; and we will be criticized by
editorials and elites. On the other hand, it will be
praised by law enforcement and prosecutors.
In the House, it unquestionably loses us 15-20 CBC and
liberal members; and it is not clear whether it
prevents the defection of members who oppose the
Assault Weapon Ban.
--
For the Senate, while inclusion of the assault weapon
ban makes a filibuster likely, exclusion of the RJA
makes breaking that filibuster almost certain.
Include only RJA in the Conference Report; Move the Assault
Weapon Ban Separately:
:
This is only a theoretical possibility: because it is
only viable if we could get 51 votes in the Senate
against any assault weapon amendment, this is not a
genuine prospect.
The content of both provisions are also at issue, because winning
support for our compromise RJA from both the left and the right
will be hard, and because Chairman Brooks has asked us to
negotiate with him on the scope of the assault weapon ban if we
want it included in the Conference Report.
Depending on which scenario we decide to pursue, there will be a
different set of targeted members. In general, however, we plan
to target the following groups of members: in the House, members
who voted for the Crime Bill, against Assault Weapon Ban, and for
McCullom's RJA substitute; in the Senate, targets are moderate
Republicans and Democrats. (see attached lists)
B.
TIMING AND STRATEGY FOR CONFERENCE RESOLUTION
We continue to review and gather legislative intelligence about
the above options. We hope to soon be in a position to offer
some recommendations about these choices.
Regardless, we propose the following five steps as the next moves
for the Crime Bill legislatively:
Reinforce the Relationship with Chairman Brooks. We should
reinforce the relationship with Chairman Brooks whose good
will is essential to completing the Crime Bill Conference,
and winning its enactment. This should include continued
work by the Attorney General and the White House and should
involve some outreach from the President directly.
Move the Conference Along. The Senate will appoint conferees
this week; we need to continue our efforts to prod both
chambers into moving ahead. This involves continued calls
by the Attorney General to the Conferees, and probably a
call from the President to Senator Biden, to insure that our
efforts to deal with Brooks do not produce an overreaction
in the other direction.
On a more personal note, you and the Vice President should
reach out to other targeted members of Congress by hosting
meetings and private dinners.
Impact on the Substance of the Conference Report. While
most of the major items we seek in the Crime Bill are fairly
well defined and assured, many matters of significance to
the Cabinet agencies remain to be resolved. We need to
stake out firm positions on a number of policy questions,
and try to win our point on as many of these as possible.
To this end, we hope to be able to deliver to the Hill this
week approximately 60 pages in detailed comments on specific
issues in the bill. Next week, we will also begin daily
conference calls among the Cabinet departments to insure
coordination in our efforts.
Increase our Public Communications Efforts. The
Communications plan outlined above is an essential part of
our legislative strategy. We have had our greatest
successes legislatively on the Crime Bill (i.e. the House's
overwhelming passage of the bill; the win on assault
weapons) when we increase public attention to our efforts,
and thereby increase public pressure on Congress to act.
Scripting out the End Game. We believe that the Conference
product will not be produced through the usual process, but
only by achieving a Clinton-Brooks-Biden agreement that then
will be adopted by the Conferees (on a straight party-line
vote). The Republicans are very unlikely to be helpful in
Conference.
Consequently, our proposal is to urge that Chairmen Biden
and Brooks finish their work with us, and then, at the
appropriate time -- after the Conference has met for a day
or two and produced only Republican posturing -- announce an
"agreement on the Crime Bill. At that point, we would
employ a focused communications and legislative strategy to
win public -- and ultimately Congressional -- support for
the final product.