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On Crime and Christmas Trees Irhe U.S. Senate is supposed to be the great II debating society where six-year, staggered terms insulate members from the flux of public opinion. But when it comes to fighting crime this year, the House of Representatives has taken the more progressive, long-term approach. Representative Jack Brooks, the House Judiciary Chairman from Beaumont, agreed to pull down his omnibus crime package for more deliberation after freshmen Democrats and Republicans and black and Hispanic caucus leaders expressed concerns. Instead, the House passed a package of bills designed to put more police officers on the streets, provide more drug treatment for prisoners and to create more recreational programs for young people, as well as passing the Brady bill, which requires a fiveday waiting period for handgun purchases. In the Senate there was no such temperance as Senator Joe Biden of Delaware on November. 3 passed his own sweeping bill that would expand the federal death penalty to 52 crimes, enhance penalties for “hate crimes,” transfer juvenile cases to adult courts and trample on the minimal rights currently afforded undocumented immigrants. More than 70 amendments were hung on the crime bill like so many ornaments on a Christmas tree; many were approved on voice votes after little debate and the amendments only increased the alarm of civil libertarians for what started out as a bad bill. Some of the objectionables included New York Republican Alfonse D’ Amato’ s amendment, approved on a 74-25 vote, which would authorize the death penalty for any crime that results in the death of a victim when the defendant uses or carries a firearm. As the American Civil Liberties Union noted, “This amendment would federalize and make capital virtually all street level crime when a gun is involved.” It is little comfort that federal authorities would take’ over the dirty business of executions; the arbitrary nature of federal death penalty prosecutions is exposed in the fact that 73 percent of the 30 capital prosecutions under the Anti-Drug Abuse Act of 1988 have been sought against African-American defendants, with Hispanic defendants accounting for half of the remaining eight cases. The U.S. military has eight people on death row; six are African Americans, one is Filipino and one is Caucasian, the ACLU reported. Another D’ Amato amendment would authorize the death penalty for “drug kingpins,” which opens up all sorts of possibilities for overzealous prosecutors to clear the streets of undesirables. An amendment by Joseph Lieberman, Democrat of Connecticut, adopted on a 66-34 vote, provides a death penalty for carjackers. Carol Moseley-Braun, Democrat of Illinois, got 65 votes for her amendment to require that juveniles 13 or older be tried as adults for certain violent federal crimes. The provision would remove judicial discretion to take into account factors such as a youth’s previous record, social background and treatment efforts. An amendment by Texas’ own Phil Gramm and Utah’s Orrin Hatch, adopted on a voice vote, would require life imprisonment for third-time drug and violent crime convicts and increase mandatory minimum sentences for criminals using firearms. The ACLU noted that mandatory minimums also have had a racially disproportionate effect. The bill also bashes aliens. One of the little-noticed provisions would allow the use secret proceedings to deport aliens who are alleged to have ties with terrorist organizations. Deportable offenses could include fundraising or organizing on behalf of alleged terrorist organizations, the ACLU reported. Accused aliens, including legal residents, would be entitled to hearings, but they would have no right tolnow who their accusers were, what specific charges were brought against them or what evidence had been produced, if the court found it necessary to withhold the information for reasons of national security, the Washington Post reported. Given the fact that one person’s terrorists are another’s freedom fighters, this provision should give pause, but there was not much pause in.the Senate debate. That star-chamber provision was accepted without a record vote. State and local agencies, including schools and health providers, would have to aid the INS in apprehension of undocumented aliens. Another amendment would deny federal benefits to undocumented aliens, including the right to legal representation when they are arrested. The Senate also voted mandatory life sentences for anyone convicted of three violent felonies when the third crime takes place on federal property. The lone dissenter was Robert Packwood of Oregon. Definition of child pornography would be expanded to include photos of children in swimsuits or underwear who are not engaged in sexual activity but are in suggestive poses. At risk of criminal prosecutions, the ACLU said, would be medical texts, music videos, film of aerobics, dance or sporting events, advertisements for children’s wear and even family pictures. Far fetched, you say? Do the words Moral Majority mean anything to you? The Senate also approved Diane Feinstein’s hate crimes amendment to lengthen federal prison sentences by one-third for crimes against persons targeted because of their religion, national origin, ethnicity, gender, sexual orientation or disability. This may be a politically correct provision, but Nat Hentoff, writing in the Village Voice, noted that the Supreme Court has given prosecutors a lot of leeway in trying to establish hate as a motive. During the feeding frenzy our own Kay Bailey Hutchison sponsored an amendment, approved on a voice vote, that would deny Pell grants to finance college-level courses for individuals incarcerated in federal, state or local penal institutions. While this provision may not violate civil liberties, the ACLU wondered why the government would discourage higher education of inmates when studies consistently show that offenders who leave prison with a college education are less likely to commit new crimes than counterparts who leave with a high school diploma. Six months after Congress rejected a modest $30 billion economic stimulus package proposed by President Clinton, it approved a $22 billion trust fund to finance the omnibus crime legislation. The Senate also would require states to modify their sentencing and detention policies to conform with the federal law in order to qualify for federal grants. “Over the years I have seen 19 ‘get tough on crime’ bills,” said Representative John Conyers, Democrat of Michigan, a senior member of the House Judiciary Committee and the Congressional Black Caucus. “Despite the fact that our prison population has quadrupled, crime has continued at intolerably high levels. The Senate seems to think that if they repeat or enhance the same old lines about more prisons, more death-penalty crimes and longer sentences, something is going to change. Little will change until this country addresses the roots of crime and related problems rather than continuing the mindless escalation of the punishment for committing crime.” Conyers has joined Representative Craig Washington, a Houston Democrat, and a handful of black, Hispanic and progressive white members of Congress to sponsor the Crime Prevention and Criminal Justice Reform Act, which would repeal mandatory sentences, prohibit the imposition of the death penalty in a racially discriminatory pattern, establish due process before assets could be seized by the government and mandate a fiscal impact statement on all crime bills. Washington sees little chance of derailing the Senate plan when Congress comes back next month, but he hopes at least they can get Congress to take a closer look at what it is doing. Protection of civil liberties may seem a pass notion these days, as posturing takes precedence over policymaking, but Brooks and the House progressives deserve credit and reinforcements for their deliberative approach in these perilous times. JC 4 DECEMBER 24, 1993