The Federal Crime Bill and the Anti-Terrorism
and Effective Death Penalty Act
by C. Stone Brown
from the book
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.
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
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
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"
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
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
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."