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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Cabinet Council on
Legal Policy (1 of 3)
Box: 6
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
WASHINGTON
AUG
1983
CABINET AFFAIRS STAFFING MEMORANDUM
DATE:
8/1/83
NUMBER: 118835CA
DUE BY:
SUBJECT:
Cabinet Council on Legal Policy - August 2. 1983
2:00 pm in the Cabinet Room - With the President
ACTION FYI
ACTION FYI
ALL CABINET MEMBERS
Baker
Deaver
Vice President
State
Clark
Treasury
Darman (For WH Staffing)
Defense
Attorney General
Harper
Interior
Jenkins
Agriculture
Fielding
Commerce
Labor
HHS
HUD
Transportation
Energy
Education
Counsellor
OMB
CIA
UN
CCCT/Gunn
USTR
CCEA/Porter
CCFA/Boggs
CEA
CCHR/Carleson
CEQ
OSTP
CCLP/Uhlmann
CCMA/Bledsoe
CCNRE/Boggs
REMARKS: The Cabinet Council on Legal Policy will meet on Tuesday,
August 2, 1983 at 2:00 pm for thirty minutes in the Cabinet
Room. There are four items on the agenda, and the briefing
papers and agenda are attached. Briefings will be presented
on the following issues: Victims of Crime (CM#395) ; Anti-Crime
Initiatives (CM#245) ; Sharing of Grand Jury Information (CM#397) ;
and Legislative Veto (CM#395). .
RETURN TO:
Craig L. Fuller
Tom Gibson
Assistant to the President
Associate Director
for Cabinet Affairs
Cabinet Affairs
456-2823
456-2800
PRO MENT DOMTH A JUSTITIA OF
Office of the Attorney General
Washington, B. C. 20530
*
43
July 29, 1983
MEMORANDUM FOR:
Members of the Cabinet Council
on Legal Policy
FROM:
William French Smi
thats
Attorney General
SUBJECT:
Legislation to Assist Victims of Crime
All too often, discussions of our national crime problem
focus upon statistics relating to courts, prosecutors, and inves-
tigators, to the total exclusion of the impact of crime upon the
people who are its victims. Regrettably, our legal system has
neglected the financial, emotional, and physical impact which a
criminal offense can have upon the victim.- Victims of crime
frequently are terrorized and sometimes injured. They turn to
the legal system for help and justice, but often find neither.
In recognition of the growing concern over the needs of
crime victims, President Reagan established a Task Force on
Victims of Crime on April 23, 1982. During 1982, the Task Force
held hearings in Washington and in five cities across the coun-
try. This past December the Task Force made 68 recommendations
to the President setting out a plan for a comprehensive and
detailed response to the problem of victims assistance by the
federal government, state and local governments, and the private
sector.
Victim Compensation Programs
One of the Task Force's major recommendations for federal
action was enactment of legislation that would provide funds to
the states to assist them to compensate and provide other assis-
tance to victims of crime. Already, thirty-five states (and the
District of Columbia and the Virgin Islands) have enacted legis-
lation providing for compensation of victims of violent crime
under certain circumstances. These payments are made to claim-
ants from funds the states have established for this purpose;
however, approximately half of these states have already found
these funds insufficient to meet outstanding eligibility claims.
Because of the shortfalls state governments have encountered
in administering their victims compensation funds, the Task Force
recommended direct federal assistance to states in this area.
2
Unless adequate funds are available, victims' claims may have to
wait months until sufficient fines have been collected or until a
new fiscal year begins and the budgetary fund is replenished.
However, while waiting for such funding victims may be sued
civilly, harrassed continually, or see their credit rating
vanish. Moreover, unencumbered emergency assistance is also
critical to victims of violence in other ways. Immediate needs
for food, shelter, and medical assistance cannot be deferred for
the weeks or months it may take to process paper work.
Federal assistance to states also is needed because states
shoulder the burden of compensating victims of federal, as well
as state, crimes. Currently, states which have compensation pro-
grams make no distinction between victims of federal and state
crimes. However, if their compensation programs continue to
experience budgetary shortfalls, states soon may have no choice
but stop compensating victims of federal crimes. Without federal
financial assistance to state compensation programs, therefore,
federal crime victims may receive no compensation in some states,
or receive compensation in others only when the state elects to
prosecute a crime over which there is joint federal and state
jurisdiction.
Direct federal assistance to states is preferable to other
alternative solutions to replenish the states' compensation
funds. The chief alternative that would assure compensation to
victims of federal crimes would be the creation of a new federal
bureaucracy to provide such assistance directly. However, this
approach is likely to be unnecessarily duplicative and
cost-ineffective. The Task Force rejected this cumbersome
approach, favoring instead an approach which would utilize
existing state compensation schemes.
Proposed Legislation
The Department of Justice is currently drafting legislation
to provide timely assistance for crime victims. The draft
legislation would create a Crime Victims Assistance Fund to
assist states in compensating victims of violent crime both
financially (e.g., for unreimbursed medical expenses and loss of
wages) and with specialized services (such as crisis
intervention and mental health counselling). A goal of the
legislation would be to provide federal assistance to the states
without unduly interjecting the federal government into the
working relationships now existing between the states, victim
service organizations, and victims. However, the legislation
will not call for any additional appropriations; instead, the
Crime Victims Assistance Fund will be supported by levies on
criminals, revenues already deposited in the Treasury, and other
non-appropriated sources of money.
In particular, the possible funding sources include:
- 3 -
-- penalty assessment fees and fines collected from
convicted federal defendants;
--- portions of monies paid to working federal inmates
parolees and probationers;
--
a percentage of assets seized by the government in
forfeiture proceedings;
--
profits offenders realize from the sale of
literary or other rights arising from a criminal
act; and
--
contributions from the general public (except
convicted or incarcerated federal criminals).
In addition, another source of funding would be the revenues
the government already receives from the federal excise tax
currently imposed on the sale of handguns, which is presently
earmarked for a wildlife management fund administered by the
Department of the Interior. Although these revenues are already
being put to good use, they are another conceivable source of
funds for the proposed Victims Assistance Fund.
MENT OF
Office of the Attorney General
PAID
Washington, D. C. 20530
POLICY
JUSTITIA
43
July 29, 1983
MEMORANDUM FOR:
Members of the Cabinet Council
on Legal Policy
FROM:
William French Smith
Attorney General
afterts
SUBJECT:
Briefing on the Administration Crime Bill
In the course of the past two weeks the Senate Judiciary
Committee has approved almost all of the proposals in the Admini-
stration's comprehensive crime package (S. 829). 1/ In addition
to re-approving important reforms that have previously enjoyed
general support in the Senate, such as revision of the bail and
sentencing systems, the Committee has adopted the more contro-
versial features of our program. These include, for example,
restoration of capital punishment, recognizing a "good faith"
exception to the exclusionary rule, and limiting the insanity
defense.
By agreement of the Committee, the bill has largely
been preserved intact, but four of the controversial proposals --
capital punishment, exclusionary rule reform, habeas corpus
reform, and Federal Tort Claims Act (FTCA) amendments -- have
been deleted from the comprehensive bill and are being considered
as four pieces of separate legislation. The separate capital
punishment, exclusionary rule, and habeas corpus bills have been
voted out by the Committee; the FTCA amendments will be con-
sidered shortly. As part of the Committee's agreement these
bills will receive floor consideration by the Senate at around
the same time as the comprehensive bill but will be voted on as
separate measures. Unfortunately, the agreement contemplates
that a bill introduced by Senator Biden incorporating the "drug
czar" proposal that was vetoed last year will also be brought to
the floor at that time.
1/ The Committee has not yet considered the amendments to the
Federal Tort Claims Act proposed in Title XIII of the bill.
All other titles have been acted on favorably either as part
of the comprehensive bill voted out by the Committee or as
separate legislation.
- 2 -
The general effect of the Committee's agreement is
twofold; first, the controversial proposals which are being
treated separately will not impede full Senate approval of the
general package, and secondly, the procedure will provide for
Senate floor consideration of each of the controversial proposals.
Of course this also means that these separate measures will not
be "carried" as part of a larger bill and will have to pass the
Senate on their own appeal. 2/
The specific measures which are included in our crime
package and have been approved by the Committee include the
following:
1. Bail Reform
Under current law, a judge in setting pre-trial release
conditions is authorized to consider the risk that the defendant
will not appear for trial, but is not authorized to consider the
danger to the community that may result from a favorable release
decision. Hence, when confronted with a demonstrably dangerous
defendant, a judge faces the dilemma of releasing him prior to
trial despite the danger he poses to public safety, or attempting
to find some justification -- such as risk of flight -- to
justify a high money bail the defendant cannot meet. Judges
thus often find it necessary to choose between protecting public
safety or endangering the community by applying the law as
presently written.
Title I of S. 829 would correct this situation by
authorizing consideration of a defendant's dangerousness in
making pre-trial release decisions and authorizing pre-trial
detention where no combination of release conditions can rea-
sonably assure the safety of the public and prevention of flight.
Title I would also change the rules governing release
of convicted defendants while an appeal is pending. Current law
creates a presumption in favor of release on bail after con-
viction and pending appeal, as if a person were presumed to be
innocent even after he has been found to be guilty. The Admini-
stration's proposals would reverse this presumption, limiting
post-trial release to cases where the defendant can show that he
will not flee or endanger the community and that his conviction
is likely to be overturned on appeal.
2/ References hereafter to "the bill" or "S. 829" are to the
original version of S. 829, incorporating our full legis-
lative crime program. As the accompanying text explains, a
few of the titles of the original bill are now proceeding as
separate legislation.
- 3 -
2.
Sentencing Reform
The second title of the crime bill would carry out a
comprehensive revision of the sentencing system. Under current
law, individual judges are provided with enormous discretion in
the imposition of sentences. A statute may provide, for example,
that a person convicted of a given offense may be sentenced to
life imprisonment, to imprisonment for any number of years, or to
no imprisonment at all, with the choice between these options
being entirely left to the discretion of the sentencing judge.
Empirical study of current sentencing practices shows that this
system has resulted in great disparities in the treatment of
similarly situated defendants based on differences in the personal
philosophies of individual judges.
Title II of the bill would replace the current system
with a system of guided discretion. A sentencing commission
would issue guidelines establishing narrow penalty ranges for
each combination of offense and offender characteristics, and the
sentences actually imposed would normally be within these ranges.
If a judge imposed a sentence outside of the guideline range he
would have to state specific reasons for doing so and the re-
sulting sentence could be appealed by the adversely affected
party.
A second major reform of Title II is the abolition of
parole. Currently, prisoners are normally released after serving
some part of the sentence imposed at trial through the action of
parole boards. This system is based on the now-discredited
notion that imprisonment is a therapeutic measure and that it can
be determined by observing a prisoner's behavior that at some
point he has been "rehabilitated" and can safely be released.
Under the Administration's proposals a prisoner would serve the
actual sentence imposed on him at trial less a small reduction
for good behavior in prison.
3. Limiting Impediments To Successful Law Enforcement
The Administration's proposals include reforms that
would limit certain rules that may now perversely protect the
guilty or increase the difficulty of successfully prosecuting
offenders. The specific proposals in this category are limi-
tation of the exclusionary rule, the insanity defense, and habeas
corpus. 3/
3/ As noted earlier, two of these proposals -- exclusionary
rule reform and habeas corpus reform -- have been deleted
from the comprehensive bill by the Committee but have been
approved by the Committee as separate bills.
- 4 -
Under current law, evidence that was obtained by an
unlawful search and seizure is excluded from use at trial. Title
III of the bill would substitute a more moderate rule under which
evidence would not be excluded if it was obtained by a search or
seizure which the officer reasonably believed to be lawful. The
same change has already been made at the federal level in some
parts of the country by judicial decision and has been adopted in
a number of states by statute.
Title V of the bill would limit the insanity defense to
cases in which a defendant was unable to appreciate the nature or
wrongfulness of his actions and would require the defendant to
establish insanity in this sense by clear and convincing evidence.
This would change current rules under which the alleged inability
of a defendant to control his actions may establish the defense
and under which the government must establish a defendant's
sanity beyond a reasonable doubt to obtain a conviction.
Title VI would limit the availability of federal
collateral remedies for state and federal prisoners, including
habeas corpus. This would provide a partial corrective to the
current inundation of the federal courts with frivolous and
harassing prisoner petitions and would limit the drain on state
and federal criminal justice resources that results from this
litigation.
4. Strengthening Remedies and Sanctions
The Administration's proposals include several measures
that would strengthen the basic tools of law enforcement. Title
IV of the bill would strengthen criminal and civil forfeiture
laws, enhancing our ability to seize the proceeds of crime and to
reach the operating capital of criminal enterprises. Title X
would reinstate the death penalty in certain homicide, treason
and espionage cases. 4/ Various other titles of the bill would
increase the penalties applicable to a wide range of offenses,
including narcotics offenses, labor racketeering, and currency
violations. Titles XIV and XV would create new federal offenses
or strengthen or extend existing criminal prohibitions in such
areas as murder-for-hire, crimes in aid of racketeering, use of
firearms in the course of federal crimes, crimes against federal
officials, product tampering, 5/ child pornography, fraud and
/ As noted earlier, capital punishment has been removed from
the comprehensive bill by the Committee but has been voted
out as a separate bill.
Product tampering has been deleted from the comprehensive
bill by the Committee because it is near enactment at this
point as separate legislation.
- 5 -
bribery related to federal programs and counterfeiting of secu-
rities.
5.
State And Local Justice Assistance
Two titles of the bill would lend federal support to
state and local criminal justice efforts. Title VIII would
authorize a modest program of financial assistance to state and
local law enforcement to help finance anticrime programs of
proven effectiveness. Title IX would facilitate donation of
surplus federal property to state and local governments for
urgently needed prison space.
* * *
The most basic obligation of government is the protection
of the personal security of its citizens. The priority we have
assigned to this function in the international context in our
national security program finds its parallel domestically in our
program of law enforcement and criminal justice reform. The
Senate Judiciary Committee's approval of nearly all of the
provisions of the Administration's legislative crime program is a
major victory in our effort to provide for the domestic defense
of the nation against the lawless elements of society. There
remains ahead floor consideration by the full Senate and the
difficult task of securing action on our proposals in the House
of Representatives. I wish to thank all of you for the support
and assistance you have provided and to solicit your continued
cooperation in the work that lies ahead.
OF SECTITUR
Office of the Attorney General
PRO
Washington, D. C. 20530
DOMINA
JUSTITIA
23
July 29, 1983
MEMORANDUM FOR:
Members of the Cabinet Council
on Legal Policy
FROM:
William French
lots
Attorney General
SUBJECT:
Sharing of Grand Jury Information
On June 30, 1983, the Supreme Court decided two cases
that significantly limit the extent to which federal prosecutors
may share grand jury materials with civil attorneys within the
Department of Justice and with attorneys in other government
agencies. These decisions, United States V. Sells Engineering,
Inc., No. 81-1032, and United States V. Baggot, No. 81-1938,
raise serious law enforcement problems for the Department of
Justice and all other federal agencies.
A.
Sells Engineering
The central issue in Sells was whether attorneys in the
Civil Division of the Department of Justice could obtain auto-
matic disclosure of grand jury materials for use in a civil suit
or whether they were required to obtain a court order. The
Supreme Court held that Department of Justice civil attorneys
must obtain a court order authorizing the disclosure of such
materials. Under the federal courts' criminal rules, such an
order may be granted only upon a showing of particularized need
-- that is, that the materials are needed to avoid a possible
injustice in another proceeding, that the need for disclosure is
greater than the need for continued secrecy, and that the request
only covers the materials needed. This standard is ordinarly
difficult to meet.
B.
United States V. Baggot
In Baggot, the Supreme Court held that the disclosure
of grand jury materials to an administrative agency pursuant to a
court order is permissible only "[i]f the primary purpose of the
disclosure is
to assist in preparation or conduct of a
judicial proceeding." Therefore, if the purpose of the disclo-
sure is simply to determine liability, as in a tax audit, or to
conduct a mere investigation as to whether a violation of law has
occurred, disclosure would not be authorized.
C. The Effect of Sells and Baggot
The Sells and Baggot decisions raise, but do not
address, many profound problems for the government as a whole,
and for the Department of Justice in particular. On their face,
Sells and Baggot may be read to preclude not only the sharing of
grand jury information between the Department of Justice and
other agencies for investigative and civil purposes, but also the
sharing of such information between attorneys in the same office
unless there is a court order authorizing such information. In
fact, it is possible to argue that Sells and Baggot may prevent
an attorney who participates in a grand jury investigation from
using even his own knowledge of the grand jury proceedings in a
subsequent civil case to which he may be assigned -- even if the
civil case is premised on the identical set of facts.
If, in subsequent litigation, these issues are resolved
against the government, the government's civil law enforcement
efforts could be seriously impaired. Moreover, it may cost the
government many millions of dollars in additional costs for
attorneys and investigators and in foregone damage claims. For
example, the Antitrust Division in the Department of Justice
estimates that efforts to obtain information already derived from
grand jury proceedings through civil discovery would cost an
additional $8.7 million for cases brought or contemplated since
January 1, 1981, involving government damage claims of over $25
million. Similarly, the Commercial Litigation Branch of the
Civil Division estimates that the lack of access to grand jury
materials would result in additional litigation costs of $1
million per year. Furthermore, civil fraud recoveries, which now
total $30 million per year, would be substantially reduced.
The Supreme Court decisions may also jeopardize law
enforcement operations in other ways. Department of Justice
attorneys often rely on the assistance of personnel and the
resources of other agencies. For example, the IRS contributes
significant resources to assist Department attorneys in grand
jury proceedings and complex criminal investigations requiring a
careful analysis of thousands of evidentiary items. Because
Baggot precludes agencies such as the IRS from using materials
uncovered in grand jury proceedings to investigate other possible
violations of law, agency officials may be reluctant to continue
to assist the Department.
D.
Recommendation
The Department of Justice is carefully analyzing the
practical effect of Sells and Baggot on the government. However,
until the Department has completed this study, it is important
that other departments and agencies -- some of whom have
independent litigating authority -- do not take litigating
positions that may preclude the Department's ability to obtain
favorable readings of Sells and Baggot in the courts.
Accordingly, every department and agency should clear in advance
with the Department the positions they intend to take in
litigation.
TRO DOMINA JUSTITA OF
Office of the Attorney General
Washington, B. C. 20530
*
41
July 29, 1983
MEMORANDUM FOR:
Members of the Cabinet Council
on Legal Policy
FROM:
William French Sm/
Attorney General
lots
SUBJECT:
Regulatory Reform and Legislative Veto
On June 23, 1983, the Supreme Court issued its decision in
INS V. Chadha, striking down as unconstitutional the legislative
veto provision found in the Immigration and Nationality Act.
Notwithstanding the narrow issue presented, Chief Justice
Burger's opinion for the Court was written broadly, striking down
the legislative veto concept across the board as an infringement
of the President's power to control the actions of the Executive
Branch and to participate (by approving or vetoing) actions of
Congress that affect the legal rights or duties of Executive
Branch officials or private persons.
Since the Supreme Court's decision in Chadha, the Department
of Justice has been working closely with other Executive agencies
(particularly the Counsel to the President, the Office of Manage-
ment and Budget, and the State and Defense Departments) to ensure
an appropriate and measured response to that decision. (See the
attached memorandum for a fuller discussion.) The executive
branch has been careful to avoid providing any excuse for ill-
considered congressional reaction to the Chadha decision. In
addition, the government has stressed the importance of defend-
ing, both before Congress and in court, the validity of the
remaining provisions of statutes that contained legislative veto
provisions.
We have been fortunate that the reaction in Congress to
Chadha has been a responsible one. While some members of Congress
have indicated their desire to institute radical new forms of
congressional review of executive action, most members appear
inclined to defer major action until Congress and the executive
branch have had more experience with congressional review in the
absence of the legislative veto mechanism. Thus, while Congress
may well ultimately enact some new form of oversight mechanism,
it appears in the short term that Congress will do nothing,
unless it appears that the executive branch is attempting a broad
reading of Chadha. A group under the leadership of the Cabinet
Council on Legal Policy will be established to examine these long
range considerations.
Because Chadha invalidated one of the most common mechanisms
for congressional review of administrative action, the future of
regulatory reform proposals in the aftermath of Chadha is some-
what uncertain. Nonetheless, it may be appropriate now that
Chadha has resolved the question of the constitutionality of the
legislative veto to give greater attention to substantially
different forms of regulatory reform legislation than the
comprehensive regulatory reform package (which contained a
sweeping legislative veto provision) that was before Congress
last year. In particular, the Administration might wish to give
consideration to various "fast track" regulatory reform proposals
that would reform the House and Senate rules to insure expedited
consideration of legislative initiatives that the President
designates as important to achieve policies of deregulation.
The President's Task Force on Regulatory Relief has been
considering one such proposal. The draft legislation would
authorize the President to submit to Congress "such reports as he
deems appropriate" dealing with matters of regulatory reform,
including regulatory programs he believes should be modified or
repealed. Congressional action on such reports and any proposed
legislation contained therein would be expedited in a number of
ways under the proposal. For instance, each committee consider-
ing a report submitted by the President would have a limited
amount of time in which to act upon the report, or be discharged
from further consideration of it. Also, once a bill implementing
any report had been placed on the calendar of the House of
Representatives or the Senate, it would be in order to move to
proceed to consider such a bill, and such motion "shall be highly
privileged and shall not be debatable." In a number of other
ways, the rules of the House and Senate would be amended to
require expedited consideration of a bill implementing a Presi-
dential report on regulatory reform. The ultimate aim would be
to prevent such a bill from simply dying in Congress as a result
of inertia or inaction.
U.S. Department of Justice
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Assistant Attorney General
M 28 1983
MEMORANDUM FOR THE CABINET COUNCIL ON LEGAL POLICY
RE: ANALYSIS OF SUPREME COURT LEGISLATIVE VETO DECISIONS
This memorandum presents a summary analysis of the
recent Supreme Court decisions regarding legislative vetoes
and their potential impact on existing statutes and other
sources of presidential authority.
1. Legislative Vetoes
Legislative vetoes are provisions pursuant to which
Congress, or a unit of Congress, is purportedly authorized to
adopt a resolution that will impose on the Executive Branch
(or the "independent" agencies) a specific requirement to
take or refrain from taking an action. The key characteristic
of all legislative veto provisions is that a resolution pur-
suant to such a provision is not presented to the President
for his approval or veto.
Legislative vetoes first surfaced approximately
fifty years ago, but in the past ten to fifteen years the
trickle became a torrent. Every President since Hoover has
opposed legislative vetoes on either policy or constitutional
grounds or both, with the intensity of their opposition tending
to increase in direct proportion to the length of their
experience with them as Chief Executive.
2.
The Supreme Court Decisions
Chadha involved a veto by the House of Representatives
in 1975 of the Attorney General's statutory decision to suspend,
on humanitarian grounds, the deportation of an alien who was
otherwise deportable. The Supreme Court decided Chadha on
June 23, 1983. The Chief Justice wrote the Court's opinion.
Justice White dissented on the merits. Justice Rehnquist
dissented on the grounds of severability (discussed infra).
3. Public and Legislative Branch Reaction
Most journalists and commentators initially portrayed
these decisions as major and unmitigated "victories" for the
presidency. Commentators from the Congress did not disagree
regarding the Court's death knell for legislative vetoes, but
some commented that power heretofore so generously delegated
to the Executive and independent agencies would be sharply
narrowed and authority previously enjoyed by the President
would be withdrawn.
Some proposals were introduced in the House of
Representatives to reduce the power of the Consumer Product
Safety Commission (CPSC) in the aftermath of Chadha by requiring
affirmative congressional approval of all rules issued by the
CPSC by a law before such rules could take effect. However,
unless the Executive Branch provokes a confrontation with the
Legislature through ill-considered and highly controversial
actions or statements, congressional reaction on a broad gauge,
i.e., to withdraw legislatively all delegated authority to
which a legislative veto is attached, is not likely to develop
widespread support. A sweeping and somewhat radical proposal
was actually advanced by Mr. Stanley Brand, General Counsel
to the Clerk of the House of Representatives, in his testimony
before the House Committee on Foreign Affairs on June 19, 1983.
His proposal met with a very icy reception by Chairman Zablocki
and did not appear to receive any support from other members
of that Committee. In addition, Deputy Attorney General
Schmults testified before the Subcommittee on Administrative
Law and Governmental Relations of the House Committee on the
Judiciary on July 18 and the House Committee on Foreign
Affairs on June 20 (accompanied by Deputy Secretary of State
Dam), and the overall reaction of those committees appeared to
be a go-slow, cooperative one. Mr. Dam will testify before
the Senate Committee on Foreign Relations on July 29 once again
on the import of Chadha in the foreign relations area.
4. Legislation and Presidential Authority Affected
The Office of Legal Counsel has determined that 126
public laws containing 207 separate legislative veto devices will
be affected by Chadha.
- 4 -
Some of the most significant and/or controversial
provisions are:
1. War Powers Resolution, 50 U.S.C. § 1544 (removal
of armed forces engaged in foreign hostilities may be required
by concurrent resolution);
2. International Security Assistance and Arms
Control Act, 22 U.S.C. $ 2776 (b) (concurrent resolution may
halt certain proposed arms sales);
3. National Emergencies Act, 50 U.S.C. § 1622
(concurrent resolution may terminate declaration of national
emergency under International Emergency Economic Powers Act
[IEEPA - used in Iran situation]
4.
International Security Assistance Act of 1977,
22 U.S.C. $ 2753(d) (2) (Supp III 1979) (concurrent resolution
disapproving defense equipment transfers);
5. Nuclear Non-Proliferation Act of 1978, 42 U.S.C.
§§ 2160(f), 2155(b), 2157(b), 2153 (d) (Supp III 1979)
(disapproval by concurrent resolution of exports of nuclear
material and technology);
6. Congressional Budget and Impoundment Control
Act of 1974, 31 U.S.C. § 1403 (one House veto of spending
deferrals) ;
7. Trade Act provisions. Various provisions
regarding duties, quotas, waivers (concurrent disapproval
provisions);
8. Energy provisions. Various provisions granting
presidential emergency powers (one- or two-House disapproval
provisions) ;
9. Federal Election Campaign Act Amendments of
1979, 2 U.S.C. § 438 (d) (2) (Supp III 1979) (one House veto of
Federal Election Commission rules);
10. Various Reorganization Acts;
11. Federal Pay Comparability Act;
- 5 -
12. District of Columbia legislation;
13. Interior Department actions such as off-shore
leasing and wilderness designations.
5. Severability
In Chadha, the Chief Justice's opinion appears to have
adopted a very strong presumption that legislative veto devices
will be stricken by the courts while leaving intact the remainder
of the statutory schemes in which these devices were inserted
by Congress. That strong presumption was reinforced by the
Court's summary affirmance on July 6 of the D.C. Circuit's
decision in the natural gas phase II pricing rule case, CECA V.
FERC, 673 F.2d 425 (D.C. Cir. 1982). The statute involved in
FERC, in contrast to the statute involved in Chadha, did not
contain a "severability clause," and its legislative history
permitted the House and Senate and a number of intervenors to
argue that the legislative veto device was inseverable. As
Deputy Attorney General Schmults stated in his testimony on
July 18 regarding the significance of the Court's summary
affirmance in FERC, "if the Court had wanted to reverse the
apparent trend toward 'severability' in the recent cases decided
by the D.C. Circuit, it presumably would have used that case as
a vehicle to do so."
In Congress, the attitude on the severability issue,
at least so far, seems to be one of acceptance of the high
likelihood that very few, if any, grants of power to the
Executive will be held to fall with the legislative veto
devices attached to them. Mr. Brand, in his testimony before
House Foreign Affairs, stated his view that "absent an over-
whelming record to support [inseverability], I believe the
courts will find severability in many cases." The conclusion
that Mr. Brand drew from this reality -- "that Congress is
better served by wholesale repeal of the delegations effected
by these statutes" -- was not well received by the House Foreign
Affairs Committee.
In court, the Department of Justice is presently
preparing to argue the severability of legislative veto devices
in litigation ranging from an attempt by the Exxon Corp. to
have set aside a $1.6 billion judgment entered against it in
June, 1983, to a suit brought by federal employee unions arguing
that the President's power to place in effect an "alternative"
- 6 -
pay plan is inseverable from the one-House veto device attached
to that presidential power and seeking substantial back pay
based on that argument. All this litigation is being coordinated
and supervised by the Civil Division of the Department of Justice.
6. Retroactivity
Some litigation may arise over the validity of past
agency actions pursuant to authorities or power which are
arguably void because inseverably connected with legislative
vetoes. For example, Merrill Lynch is currently arguing that
the EEOC's enforcement action against them cannot be maintained
because the EEOC acquired its enforcement power pursuant to a
reorganization plan that was issued under a statute containing
an inseverable one-House veto device. These issues will have
to be evaluated as they arise, but it is not likely that the
courts will overturn whole regulatory schemes or administrative
actions which have created vested rights.
7. Report and Wait Provisions
The Chadha decision stands for the proposition
generally that statutes which require actions to be reported
to Congress and remain in suspension for a certain period to
allow a legislative response will be upheld. We have assured
Congress in testimony discussed above that the Executive will
scrupulously observe such requirements. However, unless
Congress acts through substantive legislation, most actions
will become effective at the end of the waiting period.
8.
Other Developments
The Office of Management and Budget has circulated
in draft form and expects to issue in the very near future a
bulletin designed to ensure close coordination of all Executive
Branch actions to be taken pursuant to statutes containing
legislative veto devices. The information gathered in that
process, as well as that maintained by the Civil Division
regarding litigation, should keep us fully abreast of important
developments.
A working group of White House, OMB, Justice, State
and Defense officials has monitored developments within and
without the Administration since the Chadha decision and has
made recommendations where appropriate.
- 7 -
OKJC3
A long range planning group will be organized under
the Cabinet Council on Legal Policy to consider long term
responses to Chadha including reexamination of the role of
"independent" agencies, the delegation doctrine pursuant to
which rule-making authority is transferred to agencies, and
proposals for "fast-track" legislative review of administrative
actions and authorities.
SheodonBlar Theodore B. Olson
Assistant Attorney General
Office of Legal Counsel
- 8 -
THE WHITE HOUSE
WASHINGTON
October 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
83R
SUBJECT:
Cabinet Council on Legal Policy Planning
Session - Friday, October 14 - 3:00 p.m.
in the Roosevelt Room
In the attached memorandum to Craig Fuller, the Deputy
Attorney General concludes that it is almost inevitable that
"drug tsar" legislation will clear both Houses of Congress
by overwhelming margins. Schmults asks for authorization to
approach Senators Thurmond and Biden to negotiate a version
of such legislation the Administration would support.
Schmults describes his desired approach as "a Drug Policy
and Operations Board chaired by the Attorney General and
made up of members of the Cabinet Council on Legal Policy."
I am in no position to assess Schmults' views on the
inevitability of passage of drug tsar proposals, but I would
insist on a conclusive determination that we have no choice
in the matter before switching positions. Last year,
largely at the Justice Department's urging, the President
vetoed an otherwise desirable bill because it contained a
"drug tsar" provision, and sustained considerable political
damage in doing SO. At the Cabinet Council meeting you
should insist on greater specificity from Schmults as to
exactly what type of bill he has in mind. At present he is
simply asking for a blank check to support a bill that would
increase the powers of his department vis-a-vis the others
involved in the drug war (Treasury, Transportation, Carlton
Turner's office, etc.)
ID # 168802 CU
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Document No. 168802CS
CLOSE HOLD
WHITE HOUSE STAFFING MEMORANDUM
DATE: 10/13/83
ACTION/CONCURRENCE/COMMENT DUE BY:
SUBJECT: CABINET COUNCIL ON LEGAL POLICY PLANNING SESSION
FRIDAY, OCTOBER 14 - 3:00 P.M. IN THE ROOSEVELT ROOM
ACTION FYI
ACTION FYI
VICE PRESIDENT
HERRINGTON
MEESE
HICKEY
BAKER
JENKINS
DEAVER
McMANUS
STOCKMAN
MURPHY
CLARK
ROGERS
DARMAN
P
ROLLINS
DUBERSTEIN
SPEAKES
FELDSTEIN
SVAHN
FIELDING
VERSTANDIG
FULLER
WHITTLESEY
GERGEN
REMARKS:
AGENDA: Drug Tsar Legislation (paper attached)
CLOSE HOLD
RESPONSE:
Richard G. Darman
Assistant to the President
Ext. 2702
U.S. Department of Justice
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
13 1983
MEMORANDUM TO: Craig Fuller
Assistant to the President for
Cabinet Affairs
FROM: Edward C. Schmults
Deputy Attorney General
Base
RE: "Drug Tsar" Legislation: A Proposed
Administration Response
Background: For more than a year, there have been calls
in the Congress for creation of a "drug tsar" to oversee and
coordinate all federal drug enforcement efforts. We have
consistently resisted these proposals, first on the Floor of
the Senate last year where a Biden "drug tsar" amendment to
the Violent Crime and Drug Enforcement Improvements Act was
accepted by a 2-1 margin despite Chairman Thurmond's efforts
on our behalf. During the "lame-duck" session of the 97th
Congress, the "drug tsar" proposal was attached to the "mini-
crime bill." As you will recall, the Biden bill would have
created a "super Cabinet-level" drug tsar with vague and
sweeping powers to "direct" departments and agencies to
carry out the policies he establishes including the power to
reach down into departments and agencies and reassign enforce-
ment personnel. The President disapproved it primarily
because of this "drug tsar" provision.
Despite our continuing opposition to the "drug tsar"
concept, Senator Biden has succeeded in having his new "drug
tsar" bill (S. 1787) reported by the Senate Judiciary Committee
by a vote of 12 to 5 (3 of the 5 votes against were proxies
voted by Chairman Thurmond; in at least one case the proxy
was from a Senator who favors the tsar concept). The Biden
bill is substantially identical to the "tsar" provision of
the mini-crime bill pocket vetoed in January.
On the House side, Congressman Hughes has had his version
of a "drug tsar" proposal (H.R. 3664) reported by the House
Judiciary Committee. The Hughes' bill builds upon an
existing structure (the White House Drug Abuse Policy Office)
rather than creating an entirely new structure.
- 2 -
Senator Biden will, as part of his agreement with Chairman
Thurmond, be able to bring his bill to the Senate Floor as a
separate bill upon completion of Senate consideration of the
President's crime package, possibly within a few weeks.
Congressman Hughes can be expected to try to get his bill
approved by the House before the Senate acts on the Biden
bill.
Prognosis: House and Senate Floor action on "drug tsar"
legislation is imminent and the result will almost certainly
be overwhelming approval by both bodies. The simplistic
and superficial appeal of the "drug tsar" concept appears
irresistible. Even if the President was to veto a "drug
tsar" proposal we must recognize that the vote we anticipate
on initial passage would be SO strong as to suggest concern
about a veto override. The Administration would suffer from
the public's confusion of vetoing a "crime" bill.
Moreover, the Democrat strategy may be to secure
Congressional approval of a bail, sentencing, forfeiture and
"drug tsar" package leaving the balance of the President's
anti-crime package to gather dust in the House Judiciary
Committee.
A Revised Biden Bill. Despite the shortcomings of the
Biden "drug tsar" bill, there is reason to believe that Biden
may be willing to make a number of changes to accommodate our
concerns. In this regard, Biden has held out the intelligence
community as a model of a coordinated multidepartmental
effort. We believe his bill can be modified, therefore, to
make it more consistent with the organization of the intelli-
gence community while at the same time bringing it more into
line with our current cabinet system.
Recommendation: We recommend that the Department of
Justice be authorized to approach Senators Thurmond and
Biden. We believe that a version patterned after the
Director of Central Intelligence model can be structured in
such a way as to provide a single witness to appear before
Congressional committees to testify on anti-drug efforts and
accommodate certain other concerns without unnecessarily
infringing on the important operational programs of the
several departments. In summary, an alternative approach
could be to establish a Drug Policy and Operations Board
chaired by the Attorney General and made up of members of the
Cabinet Council on Legal Policy. Such a board would set
drug policy and oversee drug enforcement operations through a
participatory process that respects the powers of Cabinet
officers to supervise the internal affairs of their departments.
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
826R
SUBJECT:
Cabinet Council on Legal Policy: Status
of Administration's Anti-Crime Legislation
The status of the Administration's anti-crime legislation
has been included on the agenda of today's meeting of the
Cabinet Council on Legal Policy. The attached memorandum
from the Deputy Attorney General focuses on S. 1762, which
includes all of the President's anti-crime proposals except
habeas corpus reform, exclusionary rule reform, the death
penalty, and the Tort Claims Act amendments. The bill has
been reported out of the Senate Judiciary Committee and is
co-sponsored by Senators Thurmond, Laxalt, Biden, and
Kennedy, pursuant to an agreement that the four would resist
all amendments to the bill. Senator Baker was willing to
let S. 1762 reach the floor last year, but only if a time
agreement could be reached. Senator De Concini would not
agree to a time agreement that did not allow floor
consideration of the death penalty, and death penalty
opponents would not agree to a time agreement allowing
debate on that issue.
Schmults argues that the best chance for passage of
significant anti-crime legislation is to secure Senate
passage of S. 1762 (virtually assured if it can be brought
to a vote) and then use S. 1762 as a vehicle for putting
pressure on the House. If the House refuses to act, at
least the blame for failure to secure anti-crime legislation
will be squarely placed on the Democrat-controlled House as
the election approaches. Putting the ball in the House's
court by fall, however, requires prompt Senate action.
Schmults recommends that the question be put on the agenda
of the legislative strategy group, SO the members of that
group can consider what steps to take to urge Senator Baker
to bring S. 1762 to the Senate floor, a move that will
probably require time for debate on the death penalty issue.
In sum, there is nothing new to report on the fate of the
Administration's anti-crime legislation. Justice has
included it on the agenda in an effort to secure a greater
commitment of White House energy and resources to its
passage.
Attachment
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5/81
THE WHITE HOUSE
WASHINGTON
CABINET AFFAIRS STAFFING MEMORANDUM
Date: 1/13/84
Number: 168885CA
Due By:
Subject: Cabinet Council on Legal Policy - Monday, January 16, 1984
2:00 P.M. - Roosevelt Room
Action
FYI
Action
FYI
ALL CABINET MEMBERS
CEA
CEQ
Vice President
OSTP
State
ACUS
Treasury
Defense
Attorney General
Interior
Agriculture
Baker
Commerce
Deaver
Labor
Darman (For WH Staffing)
HHS
Jenkins
HUD
Mc Farlane
Transportation
Svahn
Energy
Fielding
Education
Counsellor
OMB
CIA
UN
USTR
CCCT/Gunn
CCEA/Porter
GSA
CCFA/
EPA
CCHR/Simmons
OPM
CCLP/Uhlmann
VA
CCMA/Bledsoe
SBA
CCNRE/
REMARKS: The Cabinet Council on Legal Policy will meet on Monday, January
16, 1984 at 2:00 p.m. in the Roosevelt Room.
The agenda will include the following items:
- Legal Equity for Women BAR
- Immigration Policy - JGR
- Crime Legislation
- Bankruptcy Judges sime
The briefing papers are attached.
RETURN TO:
Craig L. Fuller
Katherine Anderson
Don Clarey
Assistant to the President
Tom Gibson
Larry Herbolsheimer
for Cabinet Affairs
Associate Director
456-2823
Office of Cabinet
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
January 13, 1984
MEMORANDUM FOR:
Members of the Cabinet Council
on Legal Policy
FROM: - Edward C. Schmults
Deputy Attorney Genera
DI
SUBJECT:
Status of the Administration's Anti-
Crime Legislation
Enactment of the President's Comprehensive Crime Control
Act is most important. Enactment of its provisions will greatly
increase the effectiveness of the unprecedented advances we
have made through our various law enforcement initiatives over
the last three years. Securing Congressional approval of mean-
ingful criminal justice reforms this year is still possible but
prompt action is required. We must seize the opportunity. It is
particularly important that the Senate pass the legislation early
this spring, so that we may concentrate our efforts on the House.
I. Senate
In the Senate, the President's 42-point Comprehensive Crime
Control Act of 1983 (submitted to the Congress on March 16, 1983)
was favorably reported by the Senate Committee on the Judiciary
in July of 1983. Attached is a capsule summary of the President's
anti-crime package as it emerged from the Senate Judiciary Commit-
tee.
The President's 42-item "package" has been reported as
four new bills, in order to implement an agreement reached among
Chairman Thurmond and Senators Laxalt, Biden, and Kennedy. In
summary, the four Senators agreed to co-sponsor a "core" package
(S. 1762) which includes all of the provisions of the President
bill except for habeas corpus reform, exclusionary rule reform,
the death penalty, and Tort Claims Act amendments. They also
agreed to stand together against all efforts to amend the "core"
bill. The Committee reported separate bills on habeas, exclu-
sionary rule, and death penalty. The Tort Claims Act amendments
were reported subject to unanimous concurrence on its final
language between Senators Biden and Grassley and the Department
of Justice. To date agreement has not been achieved. The agree-
ment between the four Senators also includes a pact to stand in
opposition to any filibuster or other delaying device which
could jeopardize a floor vote on each of the controversial items:
habeas corpus reform, exclusionary rule, death penalty, and Federal
Tort Claims. In other words, they have agreed to work together to
secure floor votes on each of these items.
It must also be noted that at the time the four bills (the
core bill, habeas, death penalty, and exclusionary rule) were re-
ported, the committee also reported, as separate bills, Senator
Biden's "drug tsar" bill, and bills on sentencing and forfeiture
reform. Sentencing and forfeiture are two major titles in the
core bill.
Thus, in the Senate the current status of the anti-crime pro-
posals (plus the "drug tsar" proposal) is that the Committee on
the Judiciary has reported favorably on the following bills:
1. S. 1762 - sponsored by Thurmond (14 co-sponsors have been
added since introduction), containing 37 of the 42 items
proposed / by the President (plus four congressionally
initiated proposals to which we do not object);
2. S. 1763 - sponsored by Thurmond (12 co-sponsors have since
been added), habeas corpus reform;
3. S. 1764 - sponsored by Thurmond (5 co-sponsors have since
been added), reform of the exclusionary rule;
4. S. 1765 - sponsored by Thurmond (12 co-sponsors have since
been added), which is now the vehicle for the President's
reinstitution of the death penalty;
5. S. 668 - sponsored by Kennedy, identical to the sentencing
reform provision of S. 1762;
6. S. 948 - sponsored by Biden, identical to our forfeiture
reform proposals in S. 1762; and
7. S. 1787 - Senator Biden's "drug tsar" proposal.
Demands by Senator DeConcini that capital punishment be con-
sidered at the same time as the noncontroversial bill (S. 1762)
prevented our getting the core measure to the Senate Floor last
year. Senator Baker was willing to bring the core bill to the
floor, but he insisted that a time agreement be reached. DeConcini
would not agree to a time agreement which did not allow floor con-
sideration of the death penalty, and any agreement allowing such a
debate was rejected by opponents of that provision. We believe
* / One part of the President's crime package, product tampering
(the "Tylenol" bill), has been approved by the Congress as a
separate measure, leaving 41 of the original 42 items still pending
before the Congress.
- 2 -
that the core bill, S. 1762, will pass the Senate with an over-
whelming majority. We also believe that the other separate bills
have enough support to pass, if they can survive procedural
obstacles which will be attempted by opponents not party to the
Thurmond-Biden-Laralt-Kennedy agreement.
II. House of Representatives
In the House, the President's crime package was introduced as
H.R. 2151 by Representative Fish and now has 28 co-sponsors. No
action whatsoever has been taken by the House Judiciary Committee
on H.R. 2151. There has, however, been piecemeal action on some of
the issues in the President's package, as follows:
1. Justice Assistance Legislation -- the Judiciary
Committee has reported and the House has approved
H.R. 2175 (Rep. Hughes) which is a defective ver-
sion of Title VIII of the President's bill.
2. Insanity Defense Reform -- the full Judiciary
Committee has reported H.R. 3336 (Rep. Conyers)
which is generally consistent with Title V of
the President's bill.
3. Child Pornography -- the House has approved
H.R. 3635 (Rep. Hughes) which is similar to Title
XV, Part B of the President's crime bill.
4. Extradition Reform -- the House Judiciary Committee
has reported H.R. 3347 (Rep. Hughes) which is
similar to Title XIV, Part M of the President's
crime bill.
5. Forfeiture Reform - - the Subcommittee on Crime has
reported H.R. 3299 (Rep. Hughes) which would
accomplish most of the purposes of Title IV of
the President's crime bill, but the Hughes' bill
must be considered a weakened version.
6. Drug Tsar -- the House Judiciary Committee has
reported H.R. 3664 (Rep. Hughes) to establish a
federal drug tsar. Hughes' bill builds upon an
existing structure (the White House Drug Abuse
Policy Office) rather than creating a new
structure as is the case in Biden's bill.
In short, the House has only dealt with five of the items
found in the President's bill plus the "drug tsar". Further, the
House has not acted on the "big ticket" items of sentencing or
bail reform. It should be noted that Chairman Rodino did introduce
a sentencing bill the day the House adjourned. Unfortunately, this
- 3 -
otherwise positive step by the Chairman is diminished by the lan-
guage of his version. For example, the Rodino sentencing bill
does not permit Government appeal of excessively lenient sentences,
it preserves the Parole Commission (which we want to abolish), and
it does not strengthen criminal fine collection mechanisms.
III. Prospects
In the Senate, failure to secure Floor action on the core bill
last year was a setback. Nevertheless, Senate passage early this
year would place us in a good position from which to bring pressure
to bear on the House to move the comprehensive crime legislation.
Moreover, Senate leaders (including Biden) have agreed to use all
possible parliamentary steps to force a House vote on the package,
primarily by repeatedly tacking the core crime bill onto House-
passed bills and sending them back to the House.
Despite the reluctance of the House Judiciary Committee to act
on the President's crime bill, we believe that the Senate's core
bill, S. 1762, would have majority support if it reached the House
Floor. Therefore, our objective must be to get the issues to the
House Floor. Even if attaching the Senate-passed bill to other
House-passed bills falls short of forcing a Floor vote in the
House on the entire package, such efforts may force some House
action on major crime legislation.
We believe that the critical first step is Senate Floor action.
Such action would put the entire focus on House inaction. The
pressure of Senate passage should create opportunities in addition
to enabling the Senate to add the core bill to various House-passed
pieces of legislation. Members of the House will thus be more
amenable to taking some action on significant crime legislation.
Unlike the Senate, the House (especially the Committee on the
Judiciary) is almost incapable of processing omnibus bills. How-
ever, with Senate action as a forcing device, House Members should
become more willing to process more of the individual elements of
the President's bill, even if the bill is not considered as a whole.
With enough elements moving in the House we could gain a conference
with the Senate from which we might be able to obtain major portions
of our criminal justice legislative agenda.
IV. Needed Action
In short, the earliest possible Senate action on S. 1762 is
necessary if we are to be successful in securing enactment of
urgently needed crime legislation. Majority Leader Baker must be
urged to force the crime legislation to the Senate Floor, allowing
time to fight out the death penalty issue. We could then get the
core package out of the Senate in February. Once that is accom-
plished, we will -- assuming White House and Administration leader-
ship in an active public education effort -- have a significant
- 4 -
prospect of securing true criminal justice legislative reforms
this year. We would therefore urge that this entire matter
be placed on the agenda of an early meeting of the legislative
strategy group in order that the necessary, specific action-forcing
steps may be agreed upon.
Attachment
- 5 -
President Reagan's Comprehensive Crime Control Act
of 1983 as Reported by the Senate Judiciary Committee
S. 1762
Title I - Bail Reform would amend the Bail Reform Act of 1966
to:
-- permit courts to consider danger to the community in
setting bail conditions and to deny bail altogether where
a defendant poses an especially grave danger to others;
-- tighten the criteria for post-conviction release pending
sentencing and appeal;
- - provide for revocation of release and increased penalties
for crimes committed while on release; and
- - increase penalties for bail jumping.
Title II - Sentencing Reform would revise the sentencing system
to:
- - establish a determinate sentencing system with no parole
and limited "good time" credits;
-- promote more uniform sentencing by establishing a commis-
sion to set a narrow sentencing range for each federal
criminal offense;
- - require courts to explain in writing any departure from
sentencing guidelines; and
- - authorize defendants to appeal sentences harsher and the
Government to appeal sentences more lenient than the sen-
tencing commission guidelines.
Title III - Forfeiture Reform would strengthen criminal and civil
förfeiture laws by providing for:
-- forfeiture of profits and proceeds of organized crime
(RICO) offenses;
-- criminal forfeiture in all narcotics trafficking cases;
-- expanded procedures for "freezing" forfeitable property
pending judicial proceedings;
-- forfeiture of substitute assets where assets originally
subject to forfeiture have been removed from the reach of
the Government;
-- forfeiture of land used to grow, store and manufacture
dangerous drugs; and
-- expanded use of efficient administrative forfeiture pro-
cedures in noncontested cases.
Title IV - Insanity Defense Reform would narrow the insanity
defense currently available in the federal system to:
-- limit the defense to those who are unable to appreciate
the nature or wrongfulness of their acts;
-- place the burden on the defendant to establish the defense
by clear and convincing evidence;
-- prevent expert testimony on the ultimate issue of whether
the defendant had a particular mental state or condition;
and
-- establish procedures for federal civil commitment of
persons found not guilty by reason of insanity if no State
will commit him.
Title V - Drug Enforcement Amendments would:
-- strengthen federal penalties applicable to narcotics
offenses;
-- reduce the regulatory burden on law-abiding manufacturers
and distributors of legitimate controlled substances; and
-- strengthen the ability of the Drug Enforcement Adminis-
tration to prevent diversion of legitimate controlled sub-
stances to illegal uses.
Title VI - Justice Assistance Act would:
-- authorize a modest program of financial assistance to
State and local law enforcement to help finance anti-crime
programs of proven effectiveness; and
-- streamline the components of the Department of Justice
responsible for statistical, research and other assistance
to State and local law enforcement.
Title VII - Surplus Property Amendments would facilitate donation
of surplus federal property to State and local governments for
urgently needed prison space.
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Title VIII - Labor Racketeering Amendments would strengthen fed-
eral laws with respect to labor-related racketeering activity by:
-- raising from five to ten years the period of time that a
corrupt official can be debarred from union or trust fund
positions; and
-- making debarment effective upon the date of conviction
rather than the date all appeals are exhausted.
Title IX - Foreign Currency Transaction Amendments would improve
federal laws designed to prevent international "money laundering"
by:
-- adding an "attempt" provision to existing laws prohibit-
ing transportation of currency out of the United States in
violation of reporting requirements;
-- strengthening penalties for currency violations and
authorizing payment of rewards for information leading to
the conviction of money launderers; and
-- clarifying the authority of U. S. Customs agents to
conduct border searches related to currency offenses.
Title X - Miscellaneous Violent Crime Amendments.
A. Establish federal jurisdiction over murder-for-hire and
crimes in aid of racketeering.
B. Establish federal jurisdiction over solicitation to
commit a crime of violence.
C. Expand felony-murder rule (18 U.S.C. 1111) to include
"escape, murder, kidnaping, treason, espionage and sabo-
tage.
D. Establish a minimum mandatory 5-year sentence for use
of a firearm in a federal crime of violence.
E. Establish an additional minimum-mandatory 5-year sentence
for use of armor-piercing bullets in a federal crime of
violence.
F. Expand 18 U.S.C. 1201 to include kidnaping of federal
officials.
G. Establish a new federal offense for crimes against
family members of federal officials.
H. Expand the Major Crimes Act, which sets out offenses in
Indian country, to include maiming and sodomy.
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I. Expand 18 U.S.C. 31 to cover destruction of trucks.
J. Establish federal sanctions for causing serious damage
to an energy facility.
K. Expand 18 U.S.C. 1114 to include attempted assaults and
absaults upon U. S. intelligence officers, and to
allow the AG to designate other persons for coverage.
L. Create federal penalties for escape from custody result-
ing from civil commitment.
M. Amend extradition laws to codify case law and facilitate
extradition of foreign fugitives.
N. Amend 18 U.S.C. 844 to clarify present law to ensure that
tougher penalties for arson are applicable where firemen
suffer personal injury. (Congressionally initiated pro-
posal.)
0. Establish federal jurisdiction over robberies and burg-
laries directed at pharmacies and others registered
to dispense, manufacture or distribute controlled sub-
stances. (Congressionally initiated proposal.)
Title XI - Serious Non-Violent Offenses
A. Amend child pornography laws to delete commerciality
and obscenity requirements.
B. Amend 18 U.S.C. 2232 to cover warning the subject of a
search.
C. Establish federal sanctions for theft or bribery involv-
ing federal program funds.
D. Establish federal sanctions for counterfeiting of State
and corporate securities and a misdemeanor penalty for
forged endorsements on U. S. securities.
E. Amend 18 U.S.C. 2113 to cover receipt of stolen bank
property.
F. Add a new $ 215 to title 18 to cover bank-related brib-
ery.
G. Add a new $ 1344 to title 18 to cover bank fraud in-
cluding check kiting.
H. Improve penalties for trafficking in drugs, weapons or
other contraband in federal prisons.
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I. Establish federal penalties for fraud of $10,000 or more
involving livestock. (Congressionally initiated propo-
sal.)
Title XII - Procedural Amendments
A. Lower from 16 to 15 the age at which a juvenile may be
prosecuted as an adult for serious crimes of violence
and drug trafficking offenses.
B. Amend wiretap laws to permit emergency wiretaps in life-
endangering situations and expand the range of predicate
offenses to include child porn, illegal currency trans-
actions and crimes against victims and witnesses.
C. Revise 18 U.S.C. 3237 to permit prosecution of threat
offenses in any district from, to or through which the
threat travels.
D. Authorize civil injunctions against fraud pending crimi-
nal prosecution.
E. Authorize government appeal of new trial orders.
F. Improve the Witness Security Program through codifica-
tion of case law and other changes.
G. Amend tax venue statute to avoid unnecessary splintering
of criminal tax prosecutions.
H. Amend Foreign Agent Registration Act to shift powers
now held by Secretary of State to the AG. (Congression-
ally initiated proposal.)
S. 1763
Reform of Federal Intervention in State Proceedings would re-
duce federal court interference in State adjudications by:
-- requiring federal deference to "full and fair" State
court proceedings;
- - limiting the time within which State adjudications may
be challenged in federal court, and
- - making other improvements in federal habeas corpus laws.
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S. 1764
Exclusionary Rule Reform would create an exception to the appli-
cation of the Exclusionary Rule to prevent suppression of evidence
where it can be shown that officers were proceeding in a good
faith and objectively reasonable belief that they were acting in
compliance with the law.
S. 1765
Reinstitution of Gapital Punishment would establish constitution-
ally permissible. procedures for imposition of the death penalty
in certain homicide, treason and espionage cases.
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