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[JGR/Chadha re: District of Columbia] (7 of 12)
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[JGR/Chadha re: District of Columbia] (7 of 12)
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John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: [JGR/Chadha re: District of Columbia] (7)
Box: 9
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43 Box 9 - [JGR/Chadha re: District of Columbia] (7) - Roberts, John
G.: Files SERIES I: Subject File
THE WHITE HOUSE
WASHINGTON
November 21, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DDR
SUBJECT:
Your Suggested Change in Clarke/Rolark
Letter
Attached are two versions of the Clarke/Rolark letter, one
with the change you suggested (modified slightly for
grammatical purposes) and one without. I recommend the
version without your suggested change. Stating that the
Justice letter was "revised after we had the benefit of your
views" suggests (1) that we have already evaluated and
responded fully to their concerns, which is inconsistent
with the last paragraph of our letter, and (2) that we were
OK
deeply involved in drafting the letter, a view we want to
dispel rather than discourage.
Attachments
THE WHITE HOUSE
WASHINGTON
November 21, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983). A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent, although with several changes
from the draft you reviewed.
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
The Honorable David A. Clarke
The Honorable Wilhelmina J. Rolark
Council of the
District of Columbia
Washington, D.C. 20004
FFF: JGR:aea 11/21/83
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR ROBERT A. MCCONNELL
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
D.C. Chadha Correspondence
The attached letter from the D.C. Council Chairman and the
Chairperson of the Council Judiciary Committee, together
with a copy of my reply, is referred to you for your
consideration and direct reply. I think it best to keep the
debate on this matter, to the extent possible, between
District officials and the Justice Department rather than
District officials and the White House.
CC: Michael Horowitz
Counsel to the Director
Office of Management and Budget
FFF:JGR:aea 11/16/83
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
November 21, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS DDR
SUBJECT:
Your Suggested Change in Clarke/Rolark
Letter
Attached are two versions of the Clarke/Rolark letter, one
with the change you suggested (modified slightly for
grammatical purposes) and one without. I recommend the
version without your suggested change. Stating that the
Justice letter was "revised after we had the benefit of your
views" suggests (1) that we have already evaluated and
responded fully to their concerns, which is inconsistent
with the last paragraph of our letter, and (2) that we were
deeply involved in drafting the letter, a view we want to
dispel rather than discourage.
Attachments
THE WHITE HOUSE
WASHINGTON
November 21, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983) A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent. That letter contains several
changes from the draft you reviewed, and was revised after
we had the benefit of your views.
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable David A. Clarke
The Honorable Wilhelmina J. Rolark
Council of the
District of Columbia
Washington, D.C. 20004
FFF: JGR:aea 11/21/83
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
November 21, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983). A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent, although with several changes
from the draft you reviewed.
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable David A. Clarke
The Honorable Wilhelmina J. Rolark
Council of the
District of Columbia
Washington, D.C. 20004
FFF:JGR:aea 11/21/83
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
ann
November 16, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983). A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent, although with several changes,
from the draft you reviewed and revind apr we had the been 2 of
your 1
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. David A. Clarke
Ms. Wilhelmina J. Rolark
Council of the District of
Columbia
Washington, D.C. 20004
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
D.C. Chadha Correspondence
David Clarke, Chairman of the D.C. Council, and Wilhelmina
Rolark, Chairperson of the Council's Committee on the
Judiciary, have written you in response to the draft letter
from Robert McConnell on H.R. 3932, the D.C. Chadha bill.
As you know, OMB provided the Council with a copy of the
draft for comment. The letter itself was sent out early
this morning, with the changes we discussed yesterday.
The letter contends that our position entails "disastrous
consequences" for Home Rule, and would impede the ability
of the Council to enact appropriate criminal laws to protect
the citizens of the District. The letter reviews actions of
the Council with respect to criminal law, in an effort to
mount an argument that our fears of laxness are unjustified.
The letter also notes that Congress, unlike the Council, is
likely to ignore local District criminal law problems.
Briefly, the answers: Our proposal does not have
"disastrous consequences" for Home Rule. This bill is not,
in the first place, a Home Rule bill at all but a bill to
correct constitutional problems pointed out by Chadha. We
support giving the Council plenary authority in every area
except criminal law. Such an approach continues a
distinction in current law permitting easier Congressional
review of Council actions in the criminal law area.
As to what the Council has done in the criminal area, there
is some good and some bad. Our U.S. Attorneys Office,
however, which deals with these issues on a day-to-day
basis, advised us that zany ideas have been blocked only
because of the threat of Congressional veto. The U.S.
Attorneys Office was horrified at the prospect of the
Council legislating in this area without the check of
effective Congressional control.
Finally, the Council can still act in this area. The fear
that Congress will have to become intimately involved in the
minutiae of local law is unfounded. All that the Council
need do is obtain approval of its actions, which should be
forthcoming for reasonable proposals.
I do not think you should send a substantive reply to Clark
and Rolark. The letter they're concerned about was from
McConnell; their reply should be directed to him. This
approach will help keep the dispute between the District and
Justice, rather than the District and the White House, to
the extent that is possible in light of OMB's "leaks" to
District officials. A brief reply noting you have referred
the letter to Justice for consideration and response is
attached. I have copied Horowitz to let him know we think
the matter should be kept over at Justice.
Attachment
THE WHITE HOUSE
WASHINGTON
November 16, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S. Ct. 2764 (1983) A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent, although with several changes
from the draft you reviewed.
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. David A. Clarke
Ms. Wilhelmina J. Rolark
Council of the District of
Columbia
Washington, D.C. 20004
FFF:JGR:aea 11/16/83
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR ROBERT A. MCCONNELL
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
D.C. Chadha Correspondence
The attached letter from the D.C. Council Chairman and the
Chairperson of the Council Judiciary Committee, together
with a copy of my reply, is referred to you for your
consideration and direct reply. I think it best to keep the
debate on this matter, to the extent possible, between
District officials and the Justice Department rather than
District officials and the White House.
CC: Michael Horowitz
Counsel to the Director
Office of Management and Budget
FFF: JGR:aea 11/16/83
bcc: FFFielding/JGRoberts/Subj/Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O - OUTGOING
ASH
H INTERNAL
R
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
1
Name of Correspondent: David A. Clarke / Wilhelmina Rolask
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Support of DC Home Rule
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code YY/MM/DD
CUHOLL
ORIGINATOR 83,11,16
/
Referral Note:
WAT 18
D
83111116
5 83,11 17
Referral Note:
/
/
Referral Note:
/
#
Referral Note:
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A
Appropriate Action
% Info Copy Only/No Action Necessary
A Answered
C Completed
CC - Comment/Recommendation
R Direct Reply w/Copy
B- - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
Tax -Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = -Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
LETTER OF TRANSMITTAL
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE DISTRICT OF COLUMBIA,
Washington, D.C., December 5, 1978.
Mr. DAVID A. CLARKE, Esq.,
Chairman, Counsel on Judiciary, District of Columbia City Council,
Washington, D.C.
DEAR MR. CLARKE: The accompanying report contains the joint rec-
ommendations of the House District Subcommittee on Judiciary and
the Senate Subcommittee on Governmental Efficiency and the District
of Columbia regarding the Law Revision Commission's proposed Basic
Criminal Code.
This joint report highlights the major deficiencies and problem areas
in the Commission's code proposals, and suggests methods or alterna-
tives for correcting them. In some instances, the report comments on
certain minor or nonsubstantive technical problems which need to be
addressed in order to make the LRC proposals a more workable and
less ambiguous code.
Each subcommittee has independently completed an extensive and
thorough review and analysis of the hearings, statements, and pro-
mission's proposed Basic Criminal Code. The joint report Bets forth
posals compiled as a result of subcommittee considerations of the Com-
recommendations, changes and amendments to the LRC proposals
which both Subcommittees have identified as being in need of revision.
There are numerous other issues on which the subcommittees will com-
ment separately at a later date.
The revision of the District of Columbia Criminal Code has been a
tedious and careful process and has resulted in a voluminous and de-
tailed work product by the Law Revision Commission and the House
and Senate subcommittees. Their combined efforts have culminated in
a comprehensive and modern set of criminal laws for the District of
Columbia. The present criminal law of the District of Columbia is an outdated
relic of mosaic statutes, cases, and administrative interpretations
passed into law, in a piecemeal fashion, over a period of time that
stretches from 1901 to the present. Time has changed the social mores
and standards by which we live today. The criminal laws of the Dis-
trict have not kept pace with that change. With the proposals made by
the Law Revision Commission and the extensive hearings record and
recommendations from the subcommittees, the City Council will stand
in the unique position of being able to begin the modernization process
without further delay.
In the spirit of home rule, we are delighted to begin the process of
transferring jurisdiction of the proposed criminal code to the City
3
VI
Council 80 that they can complete the task of codification by adding
the essential ingredient of their knowledge of the District of Columbia.
We look forward to continued oversight, communication and exchange
between Congress and the Council relative to the code, and to rapid
progress towards completion of the task that we have begun.
Respectfully submitted,
THOMAS F. EAGLETON,
Chairman, Senate Subcommittee on Governmental Efficiency.
ROMANO L. MAZZOLI,
Chairman, House Subcommittee on Judiciary.
C.S.STAB
STAB
Guide to
Proposed Reforms
8:1 THE,OFF OFFICIAL T JOURNA as OR THE
DISTRICT OF COLUMBIA BAR
EMBER SEPTEMBER OCTOBER 981
THE BALLOT BOX AND THE SUPREME COURT
THE BAR'S RESPONSE TO LAWYER ALCOHOLISM
ONG TOA
A H 7d
964643
C
MS ANTIF M MEISTER
1303 MADISON STREET NW
WASHINGTON, DC 20011
TYE
D.C. Crime Reform
Proposed
Guide to
CRIME:
CUTTING
NAME
BY DAVID A. CLARKE AND
of crime; lawbreaking is not unrelated
make recommendations for reform of
ANNE MEISTER
to problems in housing, education, rec-
the local laws. Specifically, the com-
reational resources or unemployment.
mission was required to:
A contribution can be made by legis-
lative reforms, provided the reforms
give special consideration to the
are reasoned and address the aspects
examination of the common law and
of the crime problem that can be reme-
statutes relating to the criminal law in
died, in part, by changes in the lan-
the District of Columbia, and all relevant
guage of the law. Reforms also must
judicial decisions, for the purpose of dis-
covering defects and anachronisms in
be designed to meet evolving commu-
the law relating to the criminal law in the
nity concerns and community values.
District of Columbia and recommending
To quote Roscoe Pound: "The law
needed reforms.¹
must be stable, but it must not stand
still."
This article discusses the history of
This task was tremendous because
local criminal law reform, the legisla-
the commission faced a body of crimi
tive process for such reforms, and the
nal law that had not been comprehen-
measures introduced before the Coun-
sively reviewed or revised since 1901.
cil of the District of Columbia to make
In 1975, the commission received par-
reforms in the District's criminal laws.
tial funding, and in 1976 the two-year
ban on Council action in this area was
extended for an additional two years.
History of Local
The commission focused its atten-
tion on criminal law reform and
Criminal Law Reform
developed final recommendations for a
revised "basic" criminal code for the
Like many aspects of this city's his-
District of Columbia by March 1978.
tory, the history of local criminal law
These recommendations were char-
reform in the District of Columbia is
acterized as a "basic" criminal code
unusual. Even with the establishment
since the recommendations proposed
of a limited home rule government in
made revisions in laws treating tradi-
1975, Congress reserved exclusive
tional crimes against persons and pro-
jurisdiction over revisions to the crimi-
perty, such as murder, rape, robbery,
nal law titles of the District of Colum-
theft and arson, but did not address so-
bia Code. It was not until 1979 that pri-
called crimes against society, such as
mary legislative jurisdiction over the
prostitution, gambling and drug
local criminal laws was transferred to
offenses. In the areas considered, the
the Council of the District of Columbia,
commission recommended sweeping
as the locally elected legislative body.
changes in the substantive law and
When Congress enacted the District
provided a presumptive sentencing
of Columbia Self-Government and
model for these sentences it proposed
Crime is an issue that touches all of us.
Governmental Reorganization Act to
to recodify, leaving the existing inde-
In the District of Columbia, as in many
provide for an elected local govern-
terminate sentencing model for the
urban jurisdictions, the problem of
ment, the newly created government
remaining offenses.
crime is a reality of everyday life and
was prohibited from enacting legisla-
Congress held a series of hearings on
'fear of crime has reached alarming
tion in a number of important areas
these recommendations, but ultimately
proportions. In response to this rising
(D.C. Code, sec. 1-147(a)(9)(Supp. V
determined to allow the council to
concern about crime, the D.C. City
1978)). Included in the restrictions was
complete the task. As a result of this
Council has given serious considera-
a two-year ban upon Council enact-
transfer, the Criminal Code Project
tion to many suggested reforms to our
ment of any legislation with respect to
was created as a special unit of the
local criminal laws. Proposals have
title 22 of the District of Columbia
D.C. Committee on the Judiciary,
been introduced to make changes in
Code, relating to crimes; title 23, relat-
designed to assist in the committee's
the District's laws that deal with
ing to criminal procedure; and title 24,
review of criminal law legislation. Fol-
drugs, sexual assault, prostitution,
relating to prisoners and their treat-
lowing this transfer of authority, the
theft, white-collar crime, and sentenc-
ment. During the period between the
commission's recommendations were
Illustration by Michael David Brown
ing, among others. Yet none of the
1973 passage of the Home Rule Act
introduced as the starting point for
suggested reforms, either alone or in
and the scheduled expiration of this
local debate on these issues. The Com-
combination, offers a complete solu-
limitation on the new government's
mittee on the Judiciary scheduled an
tion to the problem. There is no single
power, Congress enacted the District
unprecedented series of eight public
solution because there is no one cause
of Columbia Law Revision Commis-
hearings on the proposal.
sion Act (D.C. Code, sec. 49-401 to
At the hearings little testimony was
Councilmember David A. Clarke, who repre-
403 (Supp. V 1978)). This act created a
presented that expressed overall sup-
sents Ward 1, is Chairperson of the Committee
on the Judiciary of the Council of the District of
prestigious advisory commission, with
port of the commission's recommenda-
Columbia. Anne Meister is the former Director
members appointed by a variety of fed-
tions, apart from that presented by the
of the Criminal Code Project.
eral and local sources, to examine and
commission itself. Opponents of the
Sentember/October 1981
Volume 6 Number 1
27
commission's proposal included the
held on June 2, 1981. As described in
approval resolution. However, acts
U.S. Attorney for the District of
the following section, these bills are at
that seek to amend the criminal law
Columbia, the executive branch of the
various stages of the local legislative
titles of the District of Columbia Code
D.C. government, the Board of Judges
process.
are subject to disapproval by either
and the Advisory Committee on Crimi-
house of Congress. If an act is not dis-
nal Rules of the D.C. Superior Court.
approved within thirty legislative days
Opposition to the proposal centered
Legislative Process
(not calendar days), it becomes law.
around four major concerns: (1) the
An alternative procedure for the en-
practical obstacles of operating a dual
For Local
actment of legislation is the initiative
system in which some, but not all,
process, by which proposed legislation
criminal offenses were recodified; (2)
Criminal Law Reform
is submitted to District voters in sum-
the difficulty of understanding and
mary form as an initiative measure. If
The legislative process for local
applying the new terminology used in
approved by a majority of the regis-
criminal law reform is somewhat un-
the proposal, especially the new,
tered, qualified electors voting on the
usual. Congressional review of acts to
uniform state of mind definitions used;
measure, the initiative is sent to Con-
amend the criminal law titles of the
(3) the relative benefit of the proposed
gress for review.
District of Columbia Code, titles 22, 23
revision when weighed against the
The twelve criminal law reform pro-
and 24, differs from the review accord-
costs of its implementation; and (4) the
posals that will be discussed in this
ed to other legislative measures. In all
potential cost of the proposal,
article are at various stages of the local
other respects, the legislative process
estimated at $132.6 million in added
legislative process. One of these pro-
is the same.
capital and operating costs during the
posals, the D.C. Uniform Controlled
Once a bill has been introduced and
Substances Act of 1981, recently
first five years.
referred to one of the nine standing
became law. Another, the D.C. Sexual
In June 1980, the Committee on the
committees of the Council, (criminal
Assault Reform Act of 1981, is under-
Judiciary issued an interim report on
law legislation is referred to the Com-
criminal law reform in which the com-
going congressional review and may
mittee on the Judiciary), a public hear-
mittee determined not to enact the
have become law by the date of this
ing may be scheduled. Notices of all
Law Revision Commission's proposal.
publication. A third proposal, the D.C.
public hearings are published in the
Bail Amendment Act of 1981, was dis-
Rather, the committee decided to
D.C. Register at least fifteen days in
direct its resources toward the devel-
approved by the Committee on the
advance of the date of the hearing.
Judiciary, but the Control of Prostitu-
opment of legislation in areas specifi-
The chairperson of the committee is
cally identified during the course of the
tion and Sale of Drugs in Public Places
generally responsible for setting the
Criminal Control Act of 1981 was
hearings as posing special problems to
agenda of that committee. If the com-
or of particular interest to the commu-
approved and is awaiting review by the
mittee takes o'action on a bill, the bill
nity. Some of these areas were includ-
full Council. The remaining proposals
dies at the expiration of the Council
ed in the commission's proposal and
are pending action by the Committee
period. If a bill is placed on the agenda
on the Judiciary.
some were not.
of the committee, following staff
Consequently, the committee set as
research and review of the comments
priority reform of local laws, such as
received, the committee members
drug laws and white-collar laws, which
meet to mark up the bill. At mark-up,
Drug Reform
do not provide an adequate basis for
amendments may be made by the com-
local law enforcement in the event of a
mittee members and a formal vote is
The District of Columbia Uniform
transfer to District officials of prosecu-
taken to approve or disapprove the
Controlled Substances Act of 1981
tion authority. The committee also set
measure. If approved, the final version
became law on August 5, 1981. Pat-
as priority the consideration of matters
of the committee action on the bill is
terned after the model developed by
that were identified during the course
called the committee print and this
the National Conference of Commis-
of the hearings as areas of pressing
committee print, along with a report
sioners on Uniform States Laws and,
community concern, such as reform of
detailing the purpose and impact of the
to a certain extent, the current federal
the sexual assault laws, drug laws,
bill, is sent to the full Council for
law, this legislation makes sweeping
penalties for weapons offenses, bail
review.
reforms in the local drug laws. Prior
laws and problems raised by juvenile
The Council passes a bill (as opposed
District law in this area consisted pri-
crime. Over the next several months,
to an emergency act, a budget request
marily of the 1938 Uniform Narcotics
the work of the Criminal Code Project
act or a resolution) by voting twice to
Drug Act, D.C. Code, sec. 33-401 to
concentrated on drafting proposed leg-
approve the measure in substantially
425, and the 1956 Dangerous Drug
islation in many of these areas.
the same form. Once passed. the bill is
Act for the District of Columbia, D.C.
This year. eleven bills have been
sent to the Mayor. who may approve
Code, sec. 33-701 to 712. These prior
introduced to reform criminal law in
or veto the measure. If vetoed by the
laws lacked.clarity in defining those
the District of Columbia. These bills
Mayor, the measure still may be enact-
substances placed under control and
became the subject of another series of
ed by a two-thirds majority vote of the
penalized all first-time drug offenses
public hearings on criminal law reform
Council. Once a bill has been approved
as misdemeanors, regardless of the
held by the Committee on the Judici-
by the Mayor or the Mayor's veto has
substance involved, the type of con-
ary on March 12 and 13, 1981. Just
been overridden, the bill becomes an
duct engaged in and the parties to the
prior to these hearings, a twelfth crimi-
act and is sent to Congress for review.
illegal transaction. In addition, these
nal law reform bill was introduced and
Generally, Congress may disapprove
prior laws did not address adequately
an additional hearing on this bill was
an act only by passing a joint dis-
the diversion of drugs into illicit chan-
28
District Lawyer
nels and used a cumbersome and time-
term of imprisonment that may be
controls. These provisions will serve to
consuming method for updating the list
imposed. Special penalties also are
identify those persons in the District of
of substances subject to control. As a
provided for persons who are twenty-
Columbia who have legitimate access
result of these inadequacies, major drug
one years of age or older who distrib-
to controlled substances and to docu-
cases in the District of Columbia gener-
ute controlled substances to a minor or
ment the movement of controlled sub-
ally were prosecuted by the U.S. Attor-
enlist the assistance of a minor to sell
stances in the District. Other adminis-
ney in the federal court system, rather
or distribute controlled substances for
trative reforms include a substantial
than in the D.C. Superior Court. Conse-
the benefit of the adult. Paralleling the
expansion of the forfeiture powers of
quently, the local preventive detention
provisions of the current federal law,
the District of Columbia, delineation of
laws were not applicable to these cases.
the new local drug law also penalizes
more specific standards for the issu-
In contrast, the District of Columbia
persons who attempt or conspire to
ance and implementation of adminis-
Uniform Controlled Substances Act
commit a controlled substances
trative search warrants, and a provi-
of 1981 creates a comprehensive sys-
offense and permits conditional dis-
sion for the admissibility of chemist
tem governing the use of controlled
charge of first offenders found guilty
reports without a personal appearance
substances in the District. It clearly
of simple possession for personal use.
by the chemist if the results of the
identifies those substances subject to
The District of Columbia Uniform
analysis are not in dispute. Finally, the
control and significantly expands the
Controlled Substances Act of 1981 also
new drug law authorizes the Mayor to
coverage of the law by controlling all
substances, excluding alcohol and
tobacco, with a known potential for
abuse. Depending upon factors such
as the degree of abuse potential, the
known effect, harmfulness and level
of accepted medical use, each con-
trolled substance is placed into one of
five schedules. The highest schedule,
Schedule I, contains substances that
have a high potential for abuse and no
accepted or safe medical use in treat-
ment. The remaining schedules, II
through V, control substances that
have an accepted medical use but, in
varying degrees, a lesser potential for
abuse and for physical or psychic
effects on users. The new drug law
also creates an administrative system
for scheduling new substances and re-
scheduling those substances already
subject to control. The use of an
administrative system, rather than
the regular legislative process, is
designed to enable the District gov-
ernment to react promptly to the
introduction of new drugs and to
changes in the known abuse potential
of existing substances.
Penalties under the new drug law,
which are generally much higher than
creates a new, closed regulatory sys-
develop a series of educational pro-
those provided under the prior local
tem for the legitimate handling of con-
grams for adult and juvenile violators
laws, vary according to the gravity of
trolled substances, in order to control
about the dangers of drug use and
the offense committed and the sched-
better the diversion of these sub-
abuse.
ule of the substance involved. While
stances to illicit sources. This regula-
simple possession for one's own use
tory system requires registration of all
continues to be sanctioned as a misde-
persons who wish to dispense, distrib-
Sexual Assault Reform
meanor offense, penalties for the man-
ute, manufacture or conduct research
ufacture, distribution, or possession
with controlled substances in the Dis-
The District of Columbia Sexual
with intent to manufacture or distrib-
trict of Columbia; sets requirements
Assault Reform Act of 1981 was enact-
ute range from up to one year impris-
related to the recordkeeping, inventor-
ed by the Council on July 14, 1981,
onment and a $10,000 fine for schedule
ies, order forms and prescriptions of
signed by the Mayor on July 21, 1981,
V substances, to up to fifteen years
registrants; restricts the distribution
and currently is undergoing congres-
imprisonment and a $100,000 fine for
and dispensing of controlled sub-
sional review. Patterned after the pro-
schedule 1 or II narcotics. Special pen-
stances by registrants; and imposes
posal developed by the D.C. Law Re-
alties are provided for repeat offenders
separate penalties for offenses com-
vision Commission on sexual assault
that double the maximum fine and
mitted in violation of these regulatory.
offenses, this legislation seeks to con-
September/October 1981
Volume 6 Number 1
29
As amended in committee, this bill
would revise the solicitation for the
purposes of prostitution statute, D.C.
Code, Sec. 22-2701, by raising the
fine from $250 to $300, and by clarify-
ing that the prohibition against solicit-
ing acts of prostitution includes the
specific, enumerated acts contained in
the bill when engaged in for the pur-
pose of prostitution. This bill also
would revise the peddling of drugs on
streets statute, D.C. Code, sec. 2-617,
to clarify that these same specific enu-
merated acts, when engaged in for the
purpose of selling controlled sub-
stances, are included in the prohibi-
tion against offering for sale by ped-
dling. The specific acts are described
in the bill as follows: "remaining or
wandering about a public place and
repeatedly beckoning to, or repeated-
ly stopping, or repeatedly attempting
to stop, or repeatedly attempting to
engage passers-by in conversation, or
solidate and modernize local law in
As originally proposed, the District
repeatedly stopping or attempting to
this area. Key provisions of this act
of Columbia Sexual Assault Reform
stop motor vehicles, or repeatedly
would:
Act of 1981 would have replaced this
interfering with the free passage of
(1) eliminate all gender-based refer-
gender-based classification with a
other persons."
ences in sexual assault crimes;
classification based upon age differ-
(2) increase the protections afforded to
ences between the two parties, pat-
terning the law after a model used, in
Theft and
children who are wards by expanding
the existing prohibition against sexual
part, in thirty-four jurisdictions and
recommended by the D.C. Law Revi-
White-Collar Crimes
activity by blood relations to apply also
to adoptive parents, stepparents, cer-
sion Commission. The prohibitions
The Theft and White-Collar Crime
tain relatives related by marriage, and
against sexual activity with an older
Act of 1981 is another major piece of
other persons who live in the same
or younger child contained in the bill
household and who misuse their super-
proposed legislation. This bill con-
would apply even if the sexual activity
visory or disciplinary control to cause
tains numerous reforms to the laws of
were consensual, unless the parties
the sexual act;
theft, fraud, bribery, perjury, black-
were married to one another. Sexual
(3) impose special prohibitions against
mail, extortion, obstruction of justice
acts compelled by the use of force or
sexual activity with inmates or patients;
and forgery. Earmarked during the
threats would be punishable as sexual
(4) eliminate the current spousal ex-
criminal law reform hearings as an
assault in the first degree, regardless
emption for the most serious types of
area of District law that has hampered
of the age of the victim.
sexual assault; and
effective law enforcement efforts on
Concern over the mistaken public
(5) eliminate criminal prohibitions
the local level,' this bill is designed to
perception of the bill's provisions led
against private, noncommercial. con-
remedy specific deficiencies in the
sensual sexual activity between adults,
the Council to delete this provision
law rather than to serve as a compre-
except for conduct that violates the cur-
from the bill and substitute a gender-
hensive revision. The bill would elimi-
rent incest law.
neutral version of the current statu-
nate artificial distinctions between the
tory rape law. As a result, this act, as
Due to misleading coverage by the
various forms of theft by consolidat-
amended, would impose a penalty of
local press that characterized the
ing larceny offenses, false pretenses,
up to twenty years' imprisonment
measure as a bill to legalize teenage
embezzlement and receiving stolen
upon any person who engages in sex-
sex, the debate over this act focused
property into a single theft offense. It
ual activity with a child under the age
on changes to the current statutory
also would permit the values of items
of sixteen.
rape law. The current statutory rape
stolen as part of a common scheme or
law in the District of Columbia prohib-
plan to be aggregated for the purpose
its a male of any age from engaging in
of being prosecuted as a felony rather
sexual activity with a female under
Control of Prostitution
than as multiple misdemeanors and
the age of sixteen. While this law pro-
and Sale of Drugs
would provide an enhanced penalty for
tects females, it does not protect
those who steal from a senior citizen.
young males, although the Children's
The Control of Prostitution and Sale
In order to provide more effective
Hospital Child Protection Unit re-
of Dangerous Drugs in Public Places
tools for combating consumer fraud,
ports that more than 25 percent of the
Criminal Control Act of 1981 was
the law of false pretenses would be
sexually abused children it handles
approved by the Committee on the Ju-
changed to cover attempted false pre-
are male.
diciary at its July 22, 1981 meeting.
tenses and promises of future perform-
30
District Lawyer
ance made without intent to perform.
a fiduciary trust and misuse of public
Any alien who was not notified prop-
Perjury also would be redefined SO as
office. Many of these provisions stem
erly. and who could show that his or
to include false statements made under
from the recommendations of the D.C.
her conviction might have these col-
penalty of perjury but not under oath.
Law Revision Commission.
lateral consequences, would be enti-
The current obstruction of justice
The need to develop a local criminal
tled under the bill to withdraw the
statute would be expanded to prohibit
statute of limitation was supported
guilty plea and enter a plea of not
obstructions other than those accom-
during the criminal law reform hear-
guilty.
plished by means of an overt threat or
ings in particular due to the elimination
In an attempt to promote the use of
the use of force.
of all capital crimes" in the District of
restitution, reparations and commu-
Another major feature of the bill
Columbia. One major amendment sug-
nity service, the bill also contains a
would be the development of a number
gested by the U.S. Attorney for the
general provision that statutorily
of new statutory offenses, including:
District of Columbia that is currently
would authorize the court to order
(1) a statute prohibiting the taking or
being considered would impose no
these remedies in addition to any other
offering of an unlawful gratuity;
time limitation on all prosecutions for
condition of the sentence imposed or
(2) a statute prohibiting payoffs for past
murder, including murder in the sec-
as a condition of probation. This provi-
official behavior;
ond degree.
sion was developed in response to
(3) a statute prohibiting trafficking in
community comments during the crim-
stolen property:
inal law reform hearings, and would
(4) fraud statutes that create two
Sentencing
serve as a legislative endorsement for
degrees of fraud and prohibit schemes to
the increased use of these sentencing
defraud:
Improvements
options in appropriate criminal cases.
(5) a shoplifting statute;
Last, the bill as introduced would
(6) a commercial piracy statute that pro-
The District of Columbia Sentencing
establish standard rules for the making
hibits thefts of recordings and other
Improvements Act of 1981, also expect-
and disclosure of presentence reports.
commercial property;
ed to be marked up by the Committee
However, since the language of the bill
(7) a forgery of objects statute; and
on the Judiciary this fall, would make
merely codifies the current court rules,
(8) a credit card fraud statute.
certain, discrete changes in local sen-
these provisions probably will be
tencing procedures. The most impor-
deleted at the time of committee mark-
The bill also would repeal the cur-
tant change suggested by this bill
up.
rent criminal statutes regarding crimi-
would restore split sentencing as a sen-
nal libel, mislabeling potatoes and
tencing option. Split sentencing is a
kosher meats, and procuring the enlist-
sentence in which a judge orders the
Mandatory Sentencing
ment of criminals.
defendant to serve a set period of
imprisonment followed by a set period
Three mandatory sentencing bills
of probation. Split sentencing by local
now are pending before the Committee
Criminal Statute
judges was prohibited in 1979 by a
on the Judiciary. The first, the Added
court decision based on an interpreta-
Punishment for Crimes Committed
of Limitations
tion of the current statutory law. As a
With A Dangerous Weapon Act of
consequence, judges now are forced to
1981, would impose a five-year man-
The District of Columbia Criminal
choose between incarceration and pro-
datory minimum sentence upon those
Statute of Limitations Act of 1981 is
bation in sentencing. The language of
convicted, for the first time, of com-
expected to be marked up by the Com-
the bill also would promote sentencing
mitting a "crime of violence" while
mittee on the Judiciary this fall. The
flexibility by permitting a judge to sus-
"armed," and would increase to ten
bill would, for the first time, create a
pend the imposition, as well as the exe-
years the current five-year mandatory
local statute of limitations for criminal
cution, of a sentence.
sentence for repeat offenders. This bill
offenses. At present, the District of
The pending sentencing bill would
would not change the current statutory
Columbia relies upon the applicable
limit ali sentences of probation to five
definition of a "crime of violence,"
federal law. This federal law sets no
years or less, and would provide that a
which includes not only offenses such
time limitation on prosecutions for cap-
defendant may not be placed on proba-
as murder, rape, kidnapping and rob-
ital crimes and a five-year limitation on
tion without his or her consent. This
bery, but also such crimes as larceny
prosecutions for other criminal
five-year limit on probation sentences
and housebreaking. The bill also would
offenses.'
would codify local sentencing practice.
not amend the current reference to
In general, the limitations that would
Another provision of the bill would
"armed" offenses as offenses commit-
be imposed by the bill differ from the
require the court to notify aliens of the
ted "while armed with or having read-
current federal law by providing for no
potential, collateral consequences of a
ily available any pistol or other firearm
time limitation on prosecutions for first
guilty plea by giving the following
(or imitation thereof) or other danger-
degree murder, by setting a ten-year
advisement on the record:
ous or deadly weapon.
Conse-
time limitation on prosecutions for sec-
quently, the offenses that would be
and degree murder, by extending the
If you are not a citizen of the United
covered by these mandatory minimum
time limitation for felony prosecutions
States, you are hereby advised that con-
viction of the offense for which you have
sentences range from murder by use of
to six years, by restricting the time
been charged may have the conse-
a sawed-off shotgun to shoplifting a
limitation for misdemeanor prosecu-
quences of deportation, exclusion for
knife. Under this bill, offenders would
tions to three years, and by creating
admission to the United States, or denial
be denied probation, sentencing under
special, extended time limitations for
of naturalization pursuant to the laws of
the Federal Youth Corrections Act or
prosecutions based on fraud, breach of
the United States.
the possibility of parole prior to the
Centember/October 1981
Volume 6 Number 1
31
expiration of their minimum sentence.
be pressured to plead to lessor unarmed
als for imposing mandatory minimum
A similar piece of proposed legisla-
counts. Courts would be crowded with
sentences on persons who commit a
tion also would impose a five-year
trials in which there was overwhelming
"crime of violence" while armed with.
mandatory minimum sentence on first
evidence of guilt but the defendant could
a pistol or firearm or who manufac-
not afford to accept a plea to an armed
offenders convicted of committing a
ture, distribute, or possess with intent
count. Prisons would be crowded with
"crime of violence" while "armed,"
those serving fixed sentences. Parole
to manufacture or distribute, certain
and a ten-year mandatory minimum
authorities would be deprived of discre-
controlled substances. The Board of
sentence on repeat offenders. How-
tion to evaluate the suitability of a pris-
Elections and Ethics has approved this
ever, the bill, the 1981 Amendment to
oner for parole during the mandatory
proposed initiative for circulation. If
Section 22-3202 of the District of
minimum term.'
the initiative survives any challenges,
Columbia Code, would limit the appli-
Supporters of mandatory minimum
and if 5 percent of the registered
cation of these mandatory minimum
sentencing, such as the Metropolitan
voters sign petitions demanding that
sentences to a "crime of violence" in
Police Department, advocated the use
the matter be placed on the ballot, then
which a firearm, pistol or imitation
of sterner sanctions and the need for
this initiative measure will be voted on
firearm or pistol was used or was read-
consistency of sentences for like
in the forthcoming election.
ily available. The bill also differs in
offenses and like offenders. Other sup-
that it would not bar application of the
porters pointed out the possible deter-
Federal Youth Corrections Act to first
rent effect of these sentences.
offenders.
Other Crime
A preliminary test of Council senti-
The third mandatory minimum sen-
ment toward mandatory minimum sen-
tencing bill pending before the Commit-
Related Legislation
tences arose during the floor debate on
tee on the Judiciary, entitled the Man-
the District of Columbia Uniform Con-
The Drug Paraphernalia Act of 1981
datory and Increased Penalty for Offenses
trolled Substances Act of 1981. At that
would prohibit the use of, or posses-
Committed During Release Act of 1981,
time, one councilmember presented a
sion with intent to use, drug parapher-
would impose a five-year mandatory
nalia. It also would prohibit the sale or
minimum sentence on persons convict-
manufacture of such paraphernalia
ed of committing a felony offense while
under circumstances in which the sell-
on pretrial release. The bill also would
er knows or has reason to know that
impose a one-year mandatory mini-
the paraphernalia will be used in viola-
mum sentence on persons convicted of
tion of the provisions of the bill and im-
committing a misdemeanor offense
pose a special penalty upon adults who
while on pretrial release. Under the bill,
deliver drug paraphernalia to certain
a prison term must be imposed since
minors.
judges would be precluded from grant-
Unlike the drug paraphernalia provi-
ing probation or suspending sentence
sion contained in the new drug law,
for these mandatory minimum sen-
this bill would define the term "drug
tences. These mandatory sentences
paraphernalia" broadly. During the
would have to be served consecutive to
course of the criminal law reform hear-
any other sentence imposed and would
ings, serious concerns were raised
apply even if the original charge, for
regarding the constitutionality of this
which the offender was placed on pre-
proposed bill, which follows the model
trial release, was dismissed.
During the criminal law reform hear-
C
drafted by the federal Drug Enforce-
ment Administration. This model has
ings held this year, concerns were
been under attack in both state and
raised by the U.S. Attorney for the
federal courts throughout the country
District of Columbia, the D.C. Depart-
and judicial decisions have split over
ment of Corrections and the D.C.
number of amendments, some of
the constitutional issues raised. Until
Board of Parole, and many community
groups that regard the value of manda-
which would have imposed mandatory
such time as these issues are finally
minimum sentences for the manufac-
determined by the courts, the commit-
tory sentences in general. Written
comments by Division V of the D.C.
ture, distribution, or possession with
tee is expected to delay consideration
intent to manufacture or distribute,
of this bill.
Bar, which opposed enactment, point-
certain controlled substances. After
The 1981 Amendment to Section
ed out the practical difficulties that
the Council's general counsel opined
6-1876 of the District of Columbia
mandatory minimum sentences can
that the amendments were sufficiently
Health and Safety Code would make
create:
broad as to provide a mandatory mini-
changes in the penalties imposed for
Judges would be deprived of dis-
mum sentence for simple transfer by
violations of the local gun control law.
cretion to tailor sentences to fit the
one person to another of a controlled
However, this bill is drafted to amend
crime and the background of the defend-
substance, such as a sleeping pill, the
the lesser penalties contained in the
ant. Prosecutors would gain some
Council defeated the proposed amend-
gun control law when it was originally
leverage in plea bargaining, but would
ment by a vote of ten to three.
enacted in 1976, rather than as later
be faced with the dilemma of either forc-
Recently, a councilmember has filed
amended by the Council.
ing a defendant to go to trial by refusing
to make a plea offer to an unarmed
with the Board of Elections and Ethics
By a vote of three to one, the Com-
count or making a disporportionately
a proposed voter initiative. This initia-
mittee on the Judiciary voted to disap-
lenient offer. Innocent defendants would
tive essentially would enact his propos-
prove the District of Columbia Bail
32
District Lawyer
months, the committee will undertake
a final review of the pending proposals,
BIL
No.
Act
No.
Law
Short Title
Sponsors
based upon comments received during
No.
and after the criminal law reform hear-
ings. In addition, the committee plans
-
-
Inc. Parminentalia An of 1981
Moore
4-3
to review proposed legislation on relat-
Added Punishment for Crimes
Kant
ed criminal law issues, such as a pro-
4-109
-
-
Committed With A Dangerous
posal to provide immunity to insurers
Weapon Act of 1981
who report suspected cases of arson to
-
1981 Amendment to Section
Ray
the local authorities and a proposal to
4-119
6-1876 of the District of
Shackleton
provide compensation to victims of
Columbia Health and Safety
crime. A more long-range goal of the
Code
Committee on the Judiciary and its
-
1981 Amendment to Section
Ray
4-111
-
staff is preparing new legislative pro-
22-3202 of the District of
posals to continue its work toward
Columbia Criminal Code
comprehensive review of the local
4-120
-
-
District of Columbia Sentenc-
Clarke
criminal law.
ing Improvement Act of 1981
Rolark
Criminal law reform is not a static
Shackleton
Clarke
process; it responds to new develop-
4-121
-
-
District of Columbia Statute of
ments in local crime problems and it
Limitations Act of 1981
Rolark
Shackieton
depends upon the input of concerned
citizens. The D.C. Bar already has con-
4-127
t-iill
-
District of Columbia Sexual
Clarke
Assault Reform Act of 1981
Rolark
tributed to this process through its
Shackleton
representation on the D.C. Law Revi-
4-123
4-51
4-29
District of Columbia Uniform
Clarke
sion Commission, through the written
Controlled Substances Act of
Rolark
comments submitted by Division V
1981
Shackleton
and through the insights shared by its
Wilson
individual members.
Now an even greater challenge
4-125
-
-
Mandatory and Increased
Winter
Penalty for Offenses Commit-
exists for the Bar and its members as
ted During Release Act of
the city faces the first ballot initiative
1981
in the criminal law area. During the
4-127
District of Columbia Bail
Clarke
future debate, the Bar is the one ele-
-
Amendment Act of 1981
ment of our community most able to
District of Columbia Theft
Clarke
4-133
-
help the community-at-large under-
-
and White-Collar Crimes Act
stand the content and the potential
of 1981
impact of the proposed initiative.
Control of Prostitution and
Wilson
4-184
-
Sale of Dangerous Drugs in
Public Places Criminal Con-
trol Act of 1981
Copies of this legisiation may be obtained, free of charge. from the Legislative Ser-
1 D.C. Code $ 49-402(a) (Supp. V 1978).
vices Unit of the Council of the District of Columbia by phoning 724-8050, or by
, Statement of Executive Branch Agencies
writing to Room 28, District Building. Washington. D.C. 20004.
on the Bills to Expand and Amend the D.C.
Criminal Code Presented to the Committee
on the Judiciary, Council of the District of
Columbia (March 12, 1981).
3 18 U.S.C. s 3282 (1976). This general
Amendment Act of 1981 at its July 22,
without bond, of a person charged with
statute of limitation applies except as other-
1981 meeting. This attempt to amend
first degree murder who poses a risk of
wise expressly provided by law.
the District's release and pretrial
flight or danger to the community.
See Whalen V. United States, 445 U.S.
detention laws failed, in part, because
684, 686 n. 2 (1980); Furman V. Georgia, 408
of concerns about the effectiveness
U.S. 238 (1972); United States V. Lee, 489
A Look Ahead
F.2d 1242, 1247 (D.C. Cir. 1973).
and potential fiscal impact of the pro-
$ Davis V. United States, 397 A.2d 951
posed changes. As presented to the
committee, the bill would have:
As past experience has demon-
(D.C. 1979).
strated amply, on both a national and
D.C. Code S 22-3202 (1973). Other dan-
(1) increased the maximum time of
detention, under the preventive deten-
state-by-state basis, reform of crimi-
gerous or deadly include but are not limited
to "a sawed-off shotgun, shotgun, ma-
tion laws from sixty to ninety days for
nal law is a lengthy process. The pro-
chine-gun. rifle; dirk, bowie knife, butcher
good cause shown;
posals passed by and pending before
knife, switchblade knife, razor, blackjack,
(2) increased the holding period for
the Committee on the Judiciary consist
billy, or metallic or other false knuckles."
detaining persons arrested while on fed-
of partial reforms dealing with distinct
, Report of the Criminal Justice Adminis-
eral or out-of-state probation or parole
and separate areas of criminal law and
tration Committee of the Division of the Dis-
from five to ten days; and
addressing the more pressing local
trict of Columbia Bar on the 1981 "Anti-
(3) authorized the pretrial detention,
crime problems. In the upcoming
Crime" Legislation (April 29, 1981) 1.
33
Sentember/October 1981
Volume 6 Number 1
STATE
U.S. Department of Justice
Office of Legislative Affairs
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
MEMORANDUM
November 21, 1983
TO: Richard A. Hauser
Deputy Counsel to the President
The White House
FROM: Michael W. Dolan
Deputy Assistant Attorney General
Office of Legislative Affairs
SUBJECT: Legislation Affecting Federal Interest in the District
of Columbia.
The following new item should be added to my memorandum of
November 14th:
7. U.S. Attorney Use of Employment Security Building. The
Department continues to oppose H.R. 3707, a bill to transfer the
Employment Security Building to the District of Columbia. As the
attached correspondence indicates, the building is needed for the
relocation of the offices of the United States Attorney for the
District of Columbia.
cc: Joseph diGenova, U.S. Attorneys Office, D.C.
Jay Stephens, Associate Attorney General's Office
John Roberts, White House Counsel's office
Harold Koh, Office of Legal Counsel
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable David A. Stockman
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
This is in response to a request from your staff for the views of the Depart-
ment of Justice on the Pennsylvania Avenue Development Corporation (PADC)
comments on H.R. 3707, a bill "To convey the District of Columbia Employment
Security Building to the District of Columbia and to provide for the payment
of a note entered into to finance the construction of such building." The
Department of Justice opposes this legislation, as I expressed in my letter
to Congressman Walter E. Fauntroy, which was transmitted to the Office of
Management and Budget for clearance on November 1, 1983. In its views on
H.R. 3707, the PADC takes no firm stance either for or against the legis-
lation, but suggests an amendment to empower a cost-free transfer of the
Employment Security Building and its underlying land, should passage of the
bill result in ownership by the District of Columbia. The Department of
Justice is opposed to such an amendment, and wishes to reiterate its position
that the interests of the Federal Government would be best served if the
subject building and land were occupied by the Department of Justice, U.S.
Attorney's Office for the District of Columbia. Instead of an amendment to
H.R. 3707, the Department of Justice recommends against the enactment of this
bill.
As stated in my letter to Congressman Fauntroy, the U.S. Attorney's Office
occupies space in the U.S. Courthouse and the District of Columbia Court-
house. However, the allocation of space in both courthouses is controlled by
the Chief Judges of their respective courts. The Attorney General has been
notified by the Chief Judges that the U.S. Attorney's Office must relocate
from the courthouses to make room for expansion by the courts (Enclosure).
It is the wish of the Chief Judges and it is a necessity for continued
efficient operation of the U.S. Attorney's Office that the new location for
the U.S. Attorney be near both courthouses.
The Employment Security Building is the only Federal building which meets the
pressing need of the U.S. Attorney's office to relocate. The building is
within a short walking distance of both courthouses and contains enough
office space to adequately accommodate the U.S. Attorney's Office. The terms
of the deed of conveyance make it the prerogative of the Secretary of Labor
to designate the occupants of the Employment Security Building. Transfer of
title to the District of Columbia would preclude the exercising of this
prerogative and would, accordingly, eliminate what appears to be the only
acceptable solution to the critical space problem facing the U.S. Attorney's
Office.
- 2 -
For these reasons, the Department of Justice recommends against the enactment
of H.R. 3707, and recommends against the submission of such views to Congress
which do not likewise recommend against the bill's passage.
Thank you for the opportunity to reiterate the Department's concerns on this
issue.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
Enclosure
UNITED STATES COURT OF APPEALS
WASHINGTON, D. C. 20001-2867
not
J. SKELLY WRIGHT
UNITED STATES CIRCUIT JUDGE
October 25, 1983
The Attorney General
United States Department of Justice
Washington, D.C. 20730
Dear Mr. Attorney General:
We are writing to support the request of the United
States Attorney for the District of Columbia for office
space outside of but within close proximity to the United
States Courthouse.
Regrettably, because the need by our Courts for space
in the Courthouse has increased substantially over the last
several years, we must now reclaim major portions of the
areas currently occupied by United States Attorney per-
sonnel. Having the United States Attorney's Office in the
Courthouse has clearly contributed to the efficiency of the
judicial system. However, the Courts' space needs must now
take priority.
We do very much recognize the need for the United
States Attorney to be located at least within close prox-
imity to the Courthouse. Therefore, we encourage you to
pursue actively a space alternative for the United States
Attorney which will both enhance the efficiency of that
Office and provide ready access to the United States Courts
for the District of Columbia Circuit.
Sincerely,
Skelly Wright
Acting Chief Judge
U.S. Court of Appeals
D.C. Circuit
Aubrey E. Robinson Jr.
Chief Judge
U.S. District Court
D.C. Circuit
XC: United States Attorney for D.C.
U.S. Department OI Justice CIEARANCE -11/1/83
Office of Legislative Affairs
IdENticAl LEttER
to MARJORIE Holt.
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Walter E. Fauntroy
Chairman, Subcommittee on Fiscal
Affairs & Health
Committee on the District of Columbia
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This letter offers the views of the Department of Justice on H.R.
3707, introduced on July 29, 1983, and currently scheduled for hearings before
the Subcommittee on Fiscal Affairs & Health of the Committee on the District
of Columbia. For the reasons detailed below, the Department recommends against
passage of the proposed legislation.
If enacted, H.R. 3707 would transfer to the District of Columbia,
without monetary consideration, all right, title and interest of the United
States in the District of Columbia Employment Security Building. This building
is located at 500 C Street, N.W., less than a block from both the U.S. Court-
house and the D.C. Courthouse.
By deed of conveyance executed on April 26, 1961, the District
of Columbia conveyed to the United States in fee simple the land on which
the building is now situated in order to enable the federal government to
construct quarters for the U.S. Employment Service and the D.C. Unemployment
Compensation Board. These quarters were "to be exclusively occupied by the
aforesaid Service and Board for a period of ten years or so long as such
use is determined by the Secretary of Labor of the United States or his succes-
sor in function to be necessary or advantageous. (Emphasis added.)
Construction of the building was financed by the Kansas City Life Insurance
Company which holds a 20-year note dated August 21, 1964. The U.S. Department
of Labor, which originally made payments on the note directly, currently
enables the District of Columbia to meet the obligation by providing an annual
Employment Security Administration Grant to the District from which the period-
ic payments are deducted. The note should be paid in its entirety by October
1984.
This grant is made pursuant to Titles III and IV of the Social Security
Act, as amended (42 U.S.C. §§ 501 et seq. and 1101 et seq.) and the Wagner
- Peyser Act, as amended (29 U.S.C. § 49 et seq.)
The Honorable Walter E. Fauntroy
- 2 -
The U.S. Attorney's Office for the District of Columbia -- the
largest such office in the country, consisting of more than 200 attorneys
and a comparable number of support staff -- currently occupies space in the
U.S. Courthouse and in the D.C. Courthouse. The allocation of space in both
courthouses is controlled by the Chief Judges of their respective courts.2/
Over the past years, the gradual expansion of the federal and D.C. courts
has necessitated a conversion of office space to secured chambers and court-
rooms which in turn has resulted in a commensurate reduction and/or realloca-
tion of space available to the U.S. Attorney's Office. This development
has culminated in a determination by the federal judges to convert space
in the U.S. Courthouse now occupied by the Criminal and Civil Divisions of
the Office by October 1, 1984, as the first step toward reclaiming all U.S.
Attorney's Office space in the building; and a determination by the D.C.
judges to convert space in the D.C. Courthouse now occupied by the Superior
Court Operations of the Office in order to accommodate seven new judges,
whose legislative authorization is expected by October 1, 1984. We expect
that the entire U.S. Attorney's Office will be evicted from both courthouses
within two years. Thus, the space problem confronting the U.S. Attorney's
Office here is critical and necessitates expedited consideration.
If the U.S. Attorney's Office is to continue to function effectively
and efficiently, it must remain proximate to both courthouses. The daily
business of the Office involves numerous court appearances as well as the
transport of witnesses and of evidence (including weapons, drugs and voluminous
records). Requiring Assistant U.S. Attorneys to travel any appreciable dis-
tance would compromise the valuable service that they perform to the courts
and to the community. Further, in order to optimize efficient management,
all divisions of the Office should be centrally located.
In our view, the Employment Security Building is the only federal
building which meets the pressing need of the U.S. Attorney's Office to relo-
cate near the U.S. and D.C. Courthouses. The building is within a short
walking distance of both courthouses and contains more than 140,000 square
feet of office space which would adequately accommodate all divisions of
the Office. It is clear from the terms of the deed of conveyance that as
long as the United States holds title to the building, the Secretary of Labor
may exercise his prerogative to designate the U.S. Attorney's Office as the
future occupant of the building. Transfer of title to the District of Columbia
would preclude the exercise of this prerogative and would, accordingly, elimi-
nate what would appear to be the only acceptable solution to the critical
space problem facing the U.S. Attorney's Office. We therefore recommend
against passage of H.R. 3707.
2/
Indeed, the United States Courthouse is the only federal courthouse
in the country with respect to which the judiciary is statutorily empowered
to allocate space. 40 U.S. C. § 130.
3/
This imperative is consistent with the requirement that the assignment
or reassignment of federal space be "the most cost-effective solution practi-
cable in each circumstance." 41 C.F.R. § 101-17.102(a); see also, U.S.
Court Design Guide (GSA, May 1, 1979) (The United States Attorneys "form
an integral part of court activities.").
The Honorable Walter E. Fauntroy
- 3 -
The Office of Management and Budget has advised this Department
that there is no objection to the submission of these comments from the stand-
point of the Administration's program.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
FILE COPY
LEGISLATIVE AFFAIRS
I
98TH CONGRESS
1ST SESSION
H. R. 3707
To convey the District of Columbia Employment Security Building to the District
of Columbia and to provide for the payment of a note entered into to finance
the construction of such building.
IN THE HOUSE OF REPRESENTATIVES
JULY 29, 1983
Mr. FAUNTROY introduced the following bill; which was referred to the
Committee on the District of Columbia
A
BILL
To convey the District of Columbia Employment Security Build-
ing to the District of Columbia and to provide for the
payment of a note entered into to finance the construction
of such building.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That (a) the Secretary of Labor shall convey to the District of
4 Columbia, without monetary consideration, all right, title,
5 and interest of the United States in and to the parcel of land
6 located in the District of Columbia in lot 826 of square 491
7 described in a deed from the District of Columbia to the
8 United States dated April 20, 1961, and recorded on April
2
1 26, 1961, as instrument number 11232 in liber 11589,
2 folio 135 of the District of Columbia (commonly known as the
3 location of the District of Columbia Employment Security
4 Building).
5
(b) The Secretary of Labor shall convey to the District
6 of Columbia without monetary consideration, all right, title,
7 and interest of the United States in and to any structures,
8 buildings, and improvements on the parcel of land conveyed
9 pursuant to subsection (a).
10
SEC. 2. (a)(1) The liability of the United States for the
11 payment of a note dated August 21, 1964, entered into with
12 the Kansas City Life Insurance Company to finance the con-
13 struction of the District of Columbia Employment Security
14 Building shall not be affected by this Act.
15
(2) The Secretary of Labor shall not make any payment
16 on the note described in paragraph (1) before such payment is
17 required to be made by the terms of the note unless the
18 Mayor of the District of Columbia approves making such pay-
19 ment before such date.
20
(b)(1) The Secretary of Labor shall insure that the pay-
21 ments on the note described in subsection (a)(1) are made on
22 the dates required by the terms of such note and that the
23 District of Columbia reimburses the United States for the
24 amount of each such payment.
HR 3707 IH
3
1
(2) To insure that the payments on the note described in
2 subsection (a)(1) are made and that the District of Columbia
3 reimburses the United States for the amount of each such
4 payment, the Secretary of Labor may use funds appropriated
5 under the authorizations contained in sections 501 and
6 901(c)(1) of the Social Security Act (42 U.S.C. 701 and
7 1101(c)(1)) for the District of Columbia to reimburse the
8 United States for any such payment.
O
HR 3707 IH
Los Angeles Times
DATE: 11-30-83
PAGE: Part I p.4
A New Assault on the Capital
The 600,000 residents of the District of Columbia,
district one senator and two representatives. It now
who already are denied voting representation in
has only one non-voting member of the House.
Congress, must now contend with another federal
The old argument that the federal government's
attempt to deprive them of self-government. The
right to ensure public order in the nation's capital
new issue is home rule-the right of elected district
has precedence over the civil rights of its residents
officials to change its criminal laws.
is not applicable in this case or in most other cases in
Under a proposal by the U.S. Department of
which Congress treats the locals as colonials.
Justice, the smallest amendment to the district's
Were circumstances to require it, the federal
criminal code would have to have the approval of
government has the instant authority to suspend
Congress before it could take effect.
the city's charter and to assume full control of
Local officials were given no explanation for this
municipal affairs.
latest attack on self-rule, although the obvious
The constitutional amendment that would grant
conclusion to be drawn is that the Administration
citizens of the district full representation in
believes that they are not as competent to govern
Congress has little prospect of success. Only 13 of
themselves as are the mayors and councils of other
the necessary 38 state legislatures have ratified it,
major cities.
and it is no credit to the California Senate that it
Apart from the right to self-determination, it
persistently refuses to join the Assembly in
strikes us that Congress has more important issues
approving the amendment.
to debate than the anti-crime laws of a single city.
Citizens of Washington must wonder what they
In recent years the trend in Congress has been
have done to deserve this new assault on their right
toward greater self-determination for the capital;
to self-determination at the same time that their
witness the majority votes in the House and Senate
hopes of participating in the national government
for a constitutional amendment that would give the
are all but vanishing.
DOJ-1:183-06
The Washington Times
DATE:
11-21-83
PAGE:
11-A
The bomb, Justice, and the District
Talk about bombs and fallout. D.C's 1974
council and the mayor. But all this misses
home-rule charter said either house on the
the point.
Hill could veto a city-passed law. But last
spring the Supreme Court struck down one-
The question boils down to whether Con-
house legislative vetoes. The fallout from
gress should take the time to put aside
the court's bomb cast a shadow over Dis-
issues like natural gas deregulation, the
trict lawmaking. So the Barry administra-
defense budget, or federal crime-code
tion proposed a solution. Let a city law
reform in order to pass judgment on every
stand unless the Senate, the House and the
change, great and small, in the D.C.
president nix it. The House agreed. The
criminal code. Yes, if you understand that
Senate was about to take it up when Justice
the congressional veto approach gives the
threw its own bomb.
city the initiative and that Congress is
Justice wants to make a special case out
unlikely to take up its time in gray-area
of D.C.'s criminal laws, requiring that any
criminal legislation enacted by the city,
District change be approved by both houses
where liberal politicians have shown an
of Congress and the president before
occasional inclination to try to dec-
becoming law. Justice says the federal gov-
riminalize certain "victimless" crimes.
ernment has a special responsibility for the
Remember, too, that although the Dis-
city's diplomats and federal workers. True,
trict enacted tougher sentencing laws -
although hundreds of thousands of federal
mandatory terms for drug and gun-related
bureaucrats live and work outside D.C.
crimes - than the feds have, credit goes to
Ditto for diplomats who live in the suburbs
D.C.'s voters, who did it through initiative,
or work at the U.N. and in consular offices
over the objections of city council members
in other cities. All come under local and
and the mayor.
state criminal laws over which the feds have
Justice's bomb may blow away a bit of the
no control.
city's home-rule powers but will, if enacted
Furthermore, Mayor Barry's right in
by Congress come January, keep constitu-
saying Congress and the president can
tional authority over the federal district
repeal any District law regarding crime or
where, on balance, it's safer - at both ends
anything else, and can put a new law on the
of Pennsylvania Avenue, instead of the mid-
District's books without approval by city
dle, in city hall.
DOJ-1985-01
39
Memorandum
OF
United States Attorney
District of Columbia
Subject:
Date:
Chadha
Dec. 7, 1983
To:
From: didis
John G. Roberts, Jr.
J.E. diGenova
Associate Counsel to
U.S. Attorney
the President
The attached is for your information
per our conversation.
Memorandum
OF
Subject
Date
Amendments to the District of Columbia
December 1, 1983
Self-Government and Governmental
Reorganization Act
To
From
Joseph JidiA E. diGenova
Robert A. McConnell
Assistant Attorney General
United States Attorney
Office of Legislative Affairs
Thru: John Logan
Office of Legislative Affairs
On November 22, 1983, this Office was asked to com-
ment upon three letters. Those three letters were addressed
to Senator Charles McC. Mathias, Chairman of the Subcommittee
on Governmental Efficiency and the District of Columbia of
the U.S. Senate Committee on Governmental Affairs. The
letters were from Marion Barry, Jr., Mayor of the District of
Columbia, David A. Clarke, Chairman of the Council of the
District of Columbia, and a group of bond counsel to the city.
All were dated November 17, 1983. All concur in the legal
opinion first voiced by this office that the bond portion of
H.R. 3932 could be enacted and thus save the pending bond
issues previously authorized by the Council but left in doubt
by Chadha. (See Section 1 (i) of H.R. 3932).
As you know, during the stages where we became in-
volved, our office told the Mayor and others that the bonds
could be saved by exactly the language they approve of in the
letters we have been asked to comment upon. Earlier in the
debate, however, their position was that only H.R. 3932, as
written, would suffice to get an unqualified opinion from bond
counsel relative to the bond issues. Staff from both the
House and Senate Committees were saying publicly through the
press that the proposed limited bill to deal only with the
bonds was not legally sufficient. Apparently, in the closing
hours of the session they thought otherwise. The Mayor's
letter, the bond counsel letter and the Chairman of the City
Council's letter all agree that the saving legislation (which
did not deal with the broad Chadha questions) was sufficient
to secure the bond issues. It seems to me that these letters
provide the Department with ample justification for its posi-
tion relative to the bonds and should be held ready for use
during the upcoming debate on amendments to the Home Rule Act.
-2-
I should add one cautionary note. The debate must
be couched in appropriate terms. It is, in my view, a legal
as well as a policy debate. The legal question posed is:
What is the post-Chadha equivalent of the one house legisla-
tive veto. In only one place in the Home Rule Act did
Congress retain this vehicle of the one house veto: that
was in the area of review of criminal laws enacted by the
Council. The equivalent legally of that is a two house re-
solution of approval. That is so because the purpose of the
one house veto in the original Home Rule Act was to enable
Congress, with its busy schedule, to stop something; not to
affirmatively act upon something. If Congress and the
Department wish to retain that ability to stop something
then the two house resolution of approval is the only way.
Under the scheme, if either house fails (i.e., one house)
to approve an act of the Council in the criminal law area,
then the bill fails. Thus, you have a one house veto under
constitutionally approved rubrics. There would be no func-
tional legal change in the status of this portion of the
Home Rule Act. The effect is identical. That assumes, of
course, that all wish to retain this degree of control. Such
a course seems wise given the degree of Federal interest out-
lined in Bob McConnell's letter of November 15, 1983 to
Chairman Roth.
U.S. Department of Justice
Office of Legislative Affairs
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
December 9, 1983
MEMORANDUM TO: Mr. Joseph Di Genova
United States Attorney
for the District of Columbia
Mr. John Roberts
Office of the Counsel to the
President
Mr. Koh
Shom
Office of Legal Counsel
FROM:
Michael W. Dolan
Deputy Assistant Attorney
General
Office of Legislative Affairs
SUBJECT: H.R. 3932
Enclosed for your review is a draft reply to Mayor Barry's
letter and Councilmembers Clarke's and Rolark's letter concerning
H.R. 3932. Please give either myself or John Logan a call with
any comments as soon as possible.
Thank you.
Enclosure
DRAFT
Honorable David A. Clarke
Chairman
Council of the District of Columbia
Honorable Wilhelmina J. Rolark
Chairperson
Committee on the Judiciary
Council of the District of Columbia
Dear Mr. Clarke and Ms. Rolark:
As Fred Fielding indicated in his November 21st letter to
you, your correspondence of November 15th has been referred to me
for reply. Your letter presented your views on a draft position
that the Administration was preparing on H.R. 3932, a bill seeking
to correct the constitutional infirmities in the District of Columbia
Self Government and Governmental Reorganization Act raised by the
Supreme Court's decision in Immigration and Naturalization Service
V. Chadha, U.S. , 103 S.Ct. 2764 (1983).
Your views on this significant legislation are important to
us. Indeed, it is unfortunate that we were never brought into
the debate on the bill until the Chairman of the Senate committee
with jurisdiction asked the Department for its views. A copy of
our formal report to the Senate committee is attached. Our letter
presents amendments that would satisfy our concerns. I am hopeful
that we can use the Congressional inter-session recess to reach
an agreement on the possible amendments to H.R. 3932.
Before closing, there is one other point I want to make in
reply to your letter. I hope that you understand that our position
on H.R. 3932 in no way implies a criticism of the Council of the
District of Columbia or its achievements in the criminal justice
area. Nor does our position reflect a diminished enthusiasm for
the important principle of Home Rule. Rather, our position presents
our best efforts to amend the Home Rule Act in the wake of Chadha,
a decision that removed from the statute a mechanism that purported
- 2 -
to control the degree of discretion delegated by Congress. This
unconstitutional device is no longer a compromise vehicle. It is
the alternatives which our letter attempted to address and what
our efforts should be directed toward.
Sincerely,
Robert A. McConnell
Assistant Attorney General
U. S. Department of Justice
OF
Office of Legislative Affairs
DRAFT
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Marion Barry, Jr.
Mayor
District of Columbia
Washington, D.C. 20004
Dear Mr. Mayor:
As Fred Fielding indicated in his November 17th letter
to you, your letter of November 15, 1983 to the President has
been referred to me for reply. Your correspondence discusses
your position on H.R. 3932, legislation directed to correct the
constitutional infirmities in the District of Columbia Self-
Government and Governmental Reorganization Act raised by the
Supreme Court's decision in Immigration and Naturalization Service
V. Chadha, U.S. , 103 S.Ct. 2764 (1983).
The Administration appreciates your perspective on this
matter and the courtesy your office has extended in advising us
of your views. I hope you understand that the Department's posi-
tion on this legislation was discussed in response to a request
for our views from the Chairman of the Senate Committee with
jurisdiction over the legislation. As part of the process where-
by the Department comments on numerous bills pending before the
Congress, our position was determined and reviewed as quickly
as possible. It is surprising that neither the House Committee
nor the District of Columbia sought the Department's views on
this matter, especially since we have always expressed a substan-
tial interest in legislation affecting criminal justice in
the District of Columbia.
The issue at stake, the repeal of the legislative veto pro-
visions in current law and determining the proper alternative,
is, in a sense, one of first impression. Until the Court's de-
cision in Chadha, the legislative veto was a much used compromise
device. It purported to permit Congress to hold in check discre-
tion which had been delegated by law. The Supreme Court's deci-
sion, of course, precludes further utilization of this mechanism.
Whether delegated authority should be subject to reversal only
by enactment of a joint resolution, or whether the exercise of
discretion should be implemented only by the enactment of a
joint resolution, or whether some other discretion limiting device
should be used, must now be resolved in a large number of statutes.
Because there is no ready replacement for the legislative veto
device, each statute must be carefully examined to determine the
appropriate balance of competing interests involved.
Our report to the Senate Committee, a copy of which is
enclosed, expresses our position on this issue as it relates
to Titles 22, 23 and 24 of the District of Columbia Code.
I hope that we can use the inter-session recess period to
agree on amendments that we can all support.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
- 2 -
OF
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
15 NOV 1983
Honorable William V. Roth, Jr.
Chairman
Committee on Governmental Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Pursuant to your request, this letter presents the views of
the Department of Justice on H.R. 3932, a bill "to amend the
District of Columbia Self-Government and Governmental Reorganiza-
tion Act, and for other purposes," as passed by the House of
Representatives on October 4, 1983. We oppose the enactment of
this legislation unless it is amended consistent with the discus-
sion set forth below.
H.R. 3932 would amend the District of Columbia Self-Govern-
ment and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat.
774 (1973), as amended, ("Act"). The legislation is in response to
the Supreme Court's decision in Immigration and Naturalization
Service V. Chadha, 103 S.Ct. 2764 (1983) which struck down as
unconstitutional so-called "legislative veto" devices. 1/ The
Act contains several such devices 2/ purporting to authorize Con-
1/ The Supreme Court has also affirmed the invalidity of two
other legislative veto provisions. See Process Gas Consumers
Group V. Consumers Energy Council or America, 103 S. Ct. 3556
(1983), affirming Consumers Energy Council of America V. FERC,
673 F.2d 425 (D.C. Cir. 1982), and Consumers Union, Inc. V. FTC,
691 F.2d 575 (D.C. Cir. 1982).
2/ The Act contains four provisions which may be characterized
as legislative vetoes. These are:
(1) Section 303 (b) provides that "an amendment to the charter
shall take effect only if
both Houses of Congress
adopt a concurrent resolution
approving such amendment."
(2) Section 602 (c) (1) provides that with respect to acts ef-
fective immediately due to emergency circumstances and acts pro-
posing amendments to Title IV of this Act "no such act shall take
effect until the end of the 30-day period
and then only if
during such 30-day period both Houses of Congress do not adopt a
concurrent resolution disapproving such act."
gress to disapprove actions of the District of Columbia Government
without complying with the constitutional requirements of legis-
lation.
The Administration generally supports the approach of H.R.
3932, which would correct the constitutionally invalid portions
of the Act by requiring Congressional action disapproving acts
passed by the D.C. City Council to take the form of legislation
passed by both Houses and presented to the President for approval
or disapproval. In one narrow area, however, the Administration
believes that it would be more consistent with Congress' prior
treatment under the Act to require affirmative approval of acts
passed by the D.C. City Council rather than opportunity for
disapproval. We recommend that H.R. 3932 be amended to provide
that City Council laws amending Titles 22, 23 and 24 of the
District of Columbia Code -- which relate to criminal law,
criminal procedure and prisoners-- only take effect upon passage
by Congress of a joint resolution of approval. This approach
will cure the constitutional infirmities pointed out by the
Chadha decision, while retaining the special treatment accorded
Titles 22, 23, and 24 under the existing Act.
Under the Constitution, Congress has the exclusive power to
legislate for the District of Columbia. Art. I, $8, cl. 17. Pur-
suant to this authority Congress has enacted Titles 22, 23 and 24
of the D.C. Code. The Department of Justice, through the United
States Attorney for the District of Columbia, has been vested
with the prosecutive authority in the United States District
Court and the District of Columbia Superior Court. D.C. Code
523-101. Indictments are sought, and prosecutions pursued in the
name of the United States of America. Similarly, this Department,
through the U.S. Marshal for the District of Columbia conducts
the service of criminal process, provides courtroom security,
transports prisoners, and returns to the District of Columbia
defendants arrested in other jurisdictions and wanted for prose-
cution in the District of Columbia. The U.S. Marshals Service
utilizes its authority under law to serve Superior Court felony
subpoenas anywhere in the United States. D.C. Code 11-942(b).
Footnote 2 continued from page 1
(3) Section 602 (c) (2) provides that any Act affecting Title 22,
23, or 24 of the District of Columbia Code "shall take effect
only if one House of Congress does not adopt a resolution
disapproving such act."
(4) Section 740(a) provides that either the House or the
Senate may adopt a resolution terminating emergency presidential
authority over the Metropolitan Police Department.
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Finally, all persons convicted in the District of Columbia are
committed to the custody of the Attorney General, who, through
the Department's Bureau of Prisons, designates the place of
confinement. D.C. Code $24-425. 3/
The Superior Court of the District of Columbia, where juris-
diction for local offenses rests, is a federal court created pur-
suant to Article I of the Constitution. Palmore V. United States,
411 U.S. 389, 397 (1973). The judges of the Superior Court and
the Court of Appeals are appointed by the President. D.C. Code
$ § 11- 101, 11-102, 11-301, and 11-1501(a). A single jury system
for grand and petit juries serves both the Superior Court and
Federal District Court. A grand jury of one court may return
indictments to the other. D.C. Code $ 511 - 1902, 11-1903(a). The
federal government is, accordingly, deeply interested in the
prosecution of crimes under the D.C. Code, their determination
before the courts, and the handling of prisoners convicted under
the Code.
The federal government owns approximately 41% of all land
in the District. Over 200 buildings are owned or leased by the
federal government. Over 445,000 federal employees work in the
Washington Metropolitan area. As a result, the District draws
both the nation's citizens and those of other countries for pur-
poses ranging from conducting business with the federal govern-
ment to touring the capital. Moreover, the existence of a sizable
diplomatic community underscores the federal interest in the
enactment, enforcement and interpretation of the criminal laws
governing the District.
3/ By agreement with the Government of the District of Columbia
most District of Columbia prisoners are sent to the Lorton
Reformatory.
4/ Our concerns in these areas do not take place in a vacuum.
Presently before the D.C. Council are three bills, Bill 5-16, the
Parole Act of 1983, Bill 5-244, the Prison Overcrowding Emergency
Powers Act of 1983, and Bill 5-245, the District of Columbia Sen-
tencing Improvements Act of 1983, which raise substantial concern.
Bill 5-16 would reduce the minimum period of detention to 10 years
and would be applicable to individuals incarcerated for such crimes
as rape, murder and armed offenses. Bill 5-244 would permit, as
a means of budget control, the release into the community of con-
victed individuals. Bill 5-245 would expand the time for granting
a motion to reduce a sentence from 120 days to one year. While
this Department has strongly opposed these proposals (and of
course, the Council has yet to act upon them), we believe more
importantly, that Congress, through the legislative process,
should retain the opportunity to review the wisdom of such
proposals.
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Special treatment for Titles 22, 23 and 24 is consistent
with the existing Act and its legislative history. Specifically,
in only one area did Congress reserve to itself to veto by vote
of only one House the acts of the City Council - Titles 22, 23
and 24 of the D.C. Code. Act $602(c)(2). See also H.R. Rep. No.
482, 93d Cong., 1st Sess. (1973). In fact the original bill, as
passed by the House of Representatives, prohibited the soon to
be established Council from legislating in the criminal law
area. H.R. 9682, 93d Cong., 1st Sess., $602 (a) (8) (1973). The
Senate version contained no such prohibition. S. 1435, 93d Cong.,
1st Sess. (1973). The conference version represented a compromise
by inserting a one house veto. Pub. L. No. 93-198, $602 (c) (2),
87 Stat. 774 (1973) 5/
The Supreme Court's decision in Immigration and Naturaliza-
tion Service V. Chadha, 103 S. Ct. 2764 (1983), now requires this
arrangement to be reworked. 6/ Our objection to H.R. 3932 is that
the federal government is now asked to surrender permanently its
authority in an area of its plenary responsibility. We believe
that in light of the historic responsibility of the federal
government for criminal law enforcement in the district, the
interests of both the citizens of the District of Columbia and
the Nation as a whole are better served by continuing the special
treatment accorded Titles 22, 23 and 24 and maintaining the pri-
mary responsibility of the Congress and the President in this
area. This responsibility can be preserved by requiring a
joint resolution of approval for D.C. Council amendments to
Titles 22, 23 and 24 of the District of Columbia Code. In this
(Footnote Continued from Page 3)
4/ Additionally, in 1981, the D.C. Council passed a Sexual Assault
Reform Act. Among its provisions was one which lowered the age
of consent for minors in statutory rape cases. Another provision
would have reduced the maximum sentence for both forcible and
statutory rape from life to 20 years imprisonment. The penalty
for incest was reduced. The proposal also reduced the penalty for
forcible rape to a 10 year maximum if the victim was physically
or mentally incapable of consenting or resisting. The House of
Representatives passed a resolution disapproving the proposal.
H. Res. 208, 97th Cong., 1st Sess., 127 Cong. Rec. H6762 (1981).
5/ We also note that during the first two years subsequent to the
date which elected members of the initial Council took office,
the Council was prohibited from legislating in this area while a
study of the District of Columbia Criminal Code was undertaken
for the Congress. This was later extended to four years. See
$602 (a) (9) of the Act.
6/ See Statement of Edward C. Schmults, Deputy Attorney General,
before the Subcommittee on Administrative Law and Governmental
Relations, Committee on the Judiciary, House of Representatives
(July 18, 1983).
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connection, it should be noted that this proposal will give the
District government more authority than it has under present law
in every area except the criminal field.
It is important to be aware that the question at stake trans-
cends the issues of the moment and that there is no inherent con-
flict between the District and federal government. The issues
in H.R. 3932 result from the unique federal and district relation-
ship embodied in present law. This Department values its repre-
sentation of the citizens of the District of Columbia and shares
their goal of ensuring that a fair, efficient, and effective
criminal justice system be in place. In conclusion, we oppose
enactment of H.R. 3932 unless it is amended consistent with the
views expressed in this letter.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
7/ We are sensitive to the need of the District of Columbia to
have the ability to raise revenues through the municipal bond mar-
ket. Section (1) (i) of H.R. 3932 is directed toward ratifying
previous actions of the D.C. Council with respect to these bonds.
We would suggest, however, that $ (1) (i) be clarified so as not to
imply that actions of the D.C. Council which never became
effective, whether because they were subject to Congressional
action or otherwise, are ratified.
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