Legislating Repression

The Federal Crime Bill and the Anti-Terrorism and Effective Death Penalty Act

by C. Stone Brown

from the book

Criminal Injustice

edited by Elihu Rosenblatt

South End Press, 1996



Crime, whether real or imagined, serves a variety of interests in U.S. society. Crime is a commodity that gets politicians elected, creates millions of jobs, and yields enormous profits to news media conglomerates, who compete to report the most heinous crimes. Television, especially, is Washington's propaganda dispenser. And to keep the public from rejecting draconian legislation such as the Violent Crime Control and Law Enforcement Act of 1994 and the Anti-Terrorism and Effective Death Penalty Act of 1996, the public was force-fed a dosage of tabloid crimes that would convince them to not only accept but embrace such legislation-even if that meant forfeiting basic constitutional rights.

For many, the Violent Crime Control and Law Enforcement Act of 1994 (known as the Crime Bill) represents one victory in the continuing battle to counter the supposed escalation of crime over the past three decades. This reasoning suits the interests of lawmakers who use crime as an election springboard. However, it contradicts reality. As David Burnham points out in his book Above the Law, "during the whole twenty-year period that presidents from Nixon to Clinton were agitating the public about the national crime menace, the best available evidence shows American people were actually experiencing less and less crime.'' If crime rates have actually been decreasing over the past 30 years, then why is the United States incarcerating more people (1.5 million) than ever before? One answer to that question can be found within the provisions of the Crime Bill legislation.

The Crime Bill

The Crime Bill, one of the most significant pieces of legislation to be passed in this decade, will roll back rights and restrict liberty well into the 21st century. Take, for instance, the Crime Bill initiatives pushed through by House and Senate Republicans. House Bill HR 666, nicknamed "The Beast," handcuffs the Fourth Amendment by allowing evidence seized in an illegal search to be used in criminal proceedings. HR 666 permits the police to search your property without a warrant under protection of a "good faith" rule: if the police think they could have obtained a warrant, an exception will be made. Have law enforcement officers exhibited behavior in the past that would reasonably lead the public to believe that they would act in "good faith"? Ironically, the bill itself lacks good faith, since it uses a double standard; this law is enforced in drug cases, but not in cases involving gun trafficking or tax crimes.

The passage of Senate Bill S3 is even more damaging to the Fourth Amendment. Bill S3 severely restricts civil remedies for illegal searches and completely removes the exclusionary rule. If one of the federal law enforcement agencies (such as the Federal Bureau of Investigation; Alcohol, Tobacco, and Firearms; or the Drug Enforcement Administration) steamrolls its way into your home without a warrant, handcuffs you, assaults you and your family, and finds no evidence of criminal activity-tough luck.

The largest single allocation in the Violent Crime Control and Law Enforcement Act of 1994 is for prison construction, which has little to do with crime prevention, revealing the true motives of the bill's sponsors. Apparently the idea of crime prevention is not a viable alternative for the authors of the Crime Bill-even though it would cost society a great deal less. The Grants for Prison Construction Based on Truth-in-Sentencing (Title V) authorizes $10.5 billion to be spent in rising increments over six years ($232 million in 1995, $997.5 million in 1996, $1.3 billion in 1997, $2.5 billion in 1998, $2.7 billion in 1999, and $2.3 billion in 2000). The Crime Bill is intended to increase the growth of prison construction, not decrease crime. Crime Bill statisticians have obviously used computer models to project the growth of crime rates beyond the year 2000, and to ensure that none of the buildings constructed with our $10.5 billion will be vacant, the Crime Bill establishes more stringent laws and longer sentencing. Furthermore, since job training, education, anti-violence counseling, and other rehabilitative services don't promote prison construction, very little of the Crime Bill funds were allocated for these activities.

Three Strikes

Baseball and crime are as American as apple pie, and if used with political skill, both can be expected to yield substantial votes in the political arena. The legislative marriage of crime and baseball was an inevitable union in a nation that leads the world in incarcerating its citizens. For Washington politicians, a Willie Horton-type advertising pitch can garner the same amount of votes as throwing out the first pitch on baseball's opening day.

The "Three Strikes, You're Out" law is yet another legislative gimmick that is supposed to make people feel safer through the questionable means of putting repeat offenders in jail for life, without regard for the seriousness of the crime. In reality, this law clogs state court systems with petty cases and condemns more nonviolent offenders to life sentences.

Unfortunately, the public swallowed the Three Strikes pill before considering what the side effects might be. While Three Strikes advocates claimed that the legislation would take criminals off the streets, with the massive influx of new convicts, thousands of non-felons had to be released instead. In addition, one criminologist noted, "We are finding people willing to die in a gun fight with cops, rather than spend their life in prison." Indeed, this is no game for officers who find that suspects with two strikes are often "three" times as tough to apprehend for the third strike. Since the third strike will put them in jail for life, they have nothing to lose by killing police officers to evade justice. Far from decreasing violent crime, Three Strikes is likely to escalate it.

Another false deference to the need for public safety is the allocation of funds to place 100,000 new police officers on U.S. streets. The thought of having 100,000 new officers on the streets is very comforting to certain segments of the public. Of course, the word "street" is political code language for "urban crime," which is the true target of the Crime Bill and the focus of crime hype-overlooking the crimes of corporate and suburban America. It is in the low-income neighborhoods of U.S. cities that the majority of added police presence will be felt. However, more police officers won't necessarily equal less crime; as far back as the first Kerner Commission Report on Urban Civil Disorders (1968),3 studies have shown that increased police presence often leads to an escalation in criminal activity, which invariably leads to a cycle of more arrests and more jails. Which brings us back to the motive of the sponsors of Three Strikes laws: prison construction.

Countering Terrorism

The Oklahoma City and World Trade Center bombings-and the media furor that surrounded them-gave birth to U.S. "terrornoia." Suddenly the possibility of large-scale terrorist activity, long since a reality in Europe and other parts of the world, had made its way to America's doorstep. Tragedies in and of themselves, these events also fostered a climate that allowed legislators apparent free rein to create laws that would erode rights provided for under the U.S. Constitution. At the signing of the Anti-Terrorism Act, President Clinton remarked:

From now on, we can quickly expel foreigners who dare to come to America and support terrorist activities. From now on, American prosecutors can wield new tools and expanded penalties against those who terrorize Americans at home and abroad. From now on, we can stop terrorists from raising money in the United States to pay for their horrible crimes. From now on, criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences, and families of victims will no longer have to endure years of anguish and suffering.

The president's comments were obvious allusions to the bombings in Oklahoma and New York, and spoke to his desire to prevent such tragedies from ever happening again (the supposed purpose of his counter-terrorism legislation). The word "counter" was undoubtedly used in the Crime Bill for its presumptive connotation; the label positions the United States as a victim, rather than as an aggressor, its true status. The notion of the United States passing legislation to "counter" terrorism is a cruel political joke for many people and nations around the world.

In Triumph of the Market, Edward Herman observes:

In the mainstream paradigm, the West is the victim of terrorism because of its openness and the envy and hatred of the subversive forces of the world (Saddam Hussein and Iraq, Muammar Qadaffi and Libya, and, in the Evil Empire years and the vision of Ronald Reagan... the Soviet Union).

The sponsors of the Anti-Terrorism Act recognized the power this deceptive phrase has to gain public support. Like the passage of the Crime Bill, signing the Anti-Terrorism and Effective Death Penalty Act of 1996 (once known as the Omnibus Counter-Terrorism Act of 1995) into law was dependent on the effectiveness of the propaganda campaign waged on the public.

In marked contrast to the media hysteria that followed both bombings, the passage of the 1996 Anti-Terrorism Act received suspiciously little media fanfare. This is especially troubling considering the threat this act poses to bedrock principles upon which the First, Fifth, and Sixth Amendments stand. The Anti-Terrorism Act allows the government to activate "alien terrorist removal procedures" without having to give even a nod to due process-a clear violation of the Fifth Amendment. Furthermore, despite the fundamental Sixth Amendment right of the accused to confront their accusers and any evidence presented against them, under this act, non-citizens can be accused, tried, and deported without ever appearing in court. In fact, this law allows the government to avoid even informing the accused that an investigation or "trial" took place.

As if this were not frightening enough, the Anti-Terrorism Act also relaxes electronic surveillance laws, expanding the government's ability to investigate (spy on) groups or organizations the government "suspects" of terrorism. Moreover, the bill grants the president sweeping new powers to selectively target unpopular domestic groups, as well as arbitrarily criminalize activities he or she determines a threat to national security.

In February 1995, approximately 10 weeks after the Oklahoma bombing (and well after it was known that "Islamic fanatics" had nothing to do with the attack), President Clinton issued Executive Order 12947. This order, later attached to the Anti-Terrorism Act, bars all financial transactions with at least 12 Middle East groups officially designated as terrorist organizations, and prohibits U.S. citizens from providing these groups with even humanitarian support. It also provides the Secretary of State with the power to selectively add an unlimited number of other organizations (domestic or international) at his or her discretion, without any formal review.

Executive Order 12947 also permits the Justice Department to request physical searches (under the authorization of the Federal Intelligence Surveillance Act [FISA] Court) without ever obtaining a search warrant in open court. This "secret court" has the power to authorize electronic surveillance within the United States in the name of national security, and while previously any evidence collected by FISA mandate could not be used in criminal court, Clinton's executive order has relaxed this restriction.

How will Executive Order 12947 affect domestic political activism? Presidential executive orders are not up for public review, and consequently are often abused by the administrations that issue them. As recently as 1981, the Reagan administration implemented a series of secret executive orders that made it easier for the government to meet its Central American foreign policy objectives. And these objectives led to the maiming, and slaughter of innocent people. The Reagan administration's repression of the Committee in Solidarity with the People of El Salvador (CISPES) is one example of how the government can abuse power by selectively targeting groups or organizations that oppose its policy objectives. In Break-ins, Death Threats, and the FBI, Ross Gelbspan notes:

The FBI requested and won approval from the Justice Department to launch an investigation into CISPES on grounds that it was representing a hostile power-the Salvadoran FMLN [Farabundo Marti National Liberation Front] rebels-and, as such, had violated the Foreign Agents' Registration Act. That was the beginning of a massive FBI operation which targeted more than one thousand domestic political groups-and hundreds of thousands of citizens-opposed to the president's policies in Central America.

Executive Order 12947, signed into law by Bill Clinton, mirrors such operations from the Reagan-Bush era. It seeks to stamp out any activism that counters the administration's domestic and foreign policy objectives.

The Death Penalty

Under the Crime Bill, 60 new offenses are punishable by death, including terrorist homicides; murder of a federal law enforcement official; and large-scale drug trafficking, drive-by shootings, and car-jackings that result in death. The bill also calls for the death penalty for large-scale, continuous drug enterprise offenses, even if no death resulted.

The death penalty provisions of the Crime Bill not only extend capital punishment crimes, but remove basic constitutional due process. They threaten to create "assembly-line" executions by placing strict imitations on habeas corpus appeals in federal court. Advocates of the death penalty have argued that capital punishment is ineffective as a deterrent because the time between arrest, conviction, and execution is too long. Supposedly in order to turn the death penalty into an "effective deterrent," the sponsors of the Crime Bill and other repressive legislation have targeted habeas corpus.

The habeas corpus remedy has been available to federal prisoners in this country since the Judiciary Act of 1789. Habeas corpus commands the government to "bring the body" that is under custody before the court, and establish to a neutral and detached legal tribunal that the prisoner's sentence or incarceration is lawful. For those who oppose the death penalty, and for innocent convicts who await execution, habeas corpus is the last line of defense from the executioner. The Crime Bill death penalty provisions mandate that convicted defendants are prevented from having meaningful independent federal court review on claims of wrongful conviction or sentencing. For instance, the new law limits prisoners on Death Row to a single federal appeal, which must be filed within six months after the state appellate process has expired. Furthermore, it prohibits federal judges from granting appeals unless they find that the state court acted "unreasonably." It is conceivable under this legislation that a defendant could be executed without getting even one appeal in federal court. This will certainly increase the chances that an innocent person will be executed.

We are taught that U.S. laws have been written to match the penalty to the crime, and to protect the innocent from prosecution. The appeals process in death penalty cases are in place for this reason; the public and the courts want to be absolutely certain that the state is executing the right person. By reducing the number of appeals and all but destroying habeas corpus, the federal Crime Bill virtually eliminates our basic constitutional right to due process.

The Anti-Terrorism and Effective Death Penalty Act attempts to finish the job the Crime Bill started. Under this act, prisoners are prevented from submitting a second or successive petition unless they first receive permission from a three-judge panel of the Court of Appeals. And even the Court of Appeals is bound to specific exceptions to a general rule established by Congress for granting petitions. At the time of this writing, the Supreme Court was set to hear a case that would challenge the constitutionality of the Anti-Terrorism Act's habeas corpus provisions. Felker v. Turpin, a Georgia death penalty case, will question the circumstances under which a state prisoner will be able to file a second or successive habeas corpus petition. It is likely that although certain provisions of the act will stand, making it extremely difficult for prisoners to appeal, other provisions will be stricken as unconstitutional.

Many legal observers and progressive activists are asking what "terrorism," (by definition a federal crime) has to do with the right of state prisoners to appeal their convictions. The answer must be-nothing at all. One can only conclude that the habeas corpus reform provisions of the Anti-Terrorism Act aren't intended to prevent terrorism, but to prevent state prisoners from exercising their constitutional right to due process.

The public is quick to call for a tougher stance on crime, but slower to understand the consequences of such a stance. Under the Crime Bill and the Anti-Terrorism Act, evidence illegally seized can now be used in court, prison construction is touted as the best approach to reducing crime, and immigrants can be accused of a crime and deported without even knowing a trial took place. These are just a few of the consequences of "getting tough on crime." Is this what the public voted for? Before being so hasty to demand harsher legislative solutions to crime, we should remember Benjamin Franklin's warning: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor freedom."

Criminal Injustice