[Senate Hearing 106-725]
[From the U.S. Government Publishing Office]
S. Hrg. 106-725
OVERSIGHT OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE RESPONSIBILITIES AND ACTIVITIES OF THE CRIMINAL DIVISION OF THE
DEPARTMENT OF JUSTICE
__________
JULY 27, 1999
__________
Serial No. J-106-40
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
67-363 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
______
Subcommittee on Criminal Justice Oversight
STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama PATRICK J. LEAHY, Vermont
Garry Malphrus, Chief Counsel
Glen Shor, Legislative Assistant
(ii)
C O N T E N T S
----------
STATEMENT OF COMMITTEE MEMBER
Page
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 1
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 3
Feingold, Hon. Russell D., U.S. Senator from the State of
Wisconsin...................................................... 22
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...28, 30
Schumer, Hon. Charles E., U.S. Senator from the State of New York 33
CHRONOLOGICAL LIST OF WITNESSES
Statement of James K. Robinson, Assistant Attorney General,
Criminal Division, U.S. Department of Justice, Washington, DC.. 7
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Robinson, James K.:
Testimony.................................................... 7
Prepared statement........................................... 10
APPENDIX
Questions and Answers
Responses of Assistant Attorney General James K. Robinson to
questions from Senators:
Leahy........................................................ 45
Hatch........................................................ 66
Feingold..................................................... 70
Thurmond..................................................... 82
Additional Submission for the Record
Letter to Senator Strom Thurmond, from Paul G. Cassell, professor
of law, University of Utah, dated July 23, 1999................ 162
OVERSIGHT OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE
----------
TUESDAY, JULY 27, 1999
U.S. Senate,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:02 p.m., in
room SD-628, Dirksen Senate Office Building, Hon. Strom
Thurmond (chairman of the subcommittee) presiding.
Also present: Senators Sessions, Schumer, Leahy, and
Feingold [ex officio.]
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. The subcommittee will come to order.
I am pleased to hold this oversight hearing on the Criminal
Division of the Department of Justice. The Criminal Division is
charged with some of the most critical functions of the Justice
Department. It represents the front lines in the Federal
Government's fight against crime. It must confront a host of
serious crimes, including the war on drugs, money laundering,
terrorism, child pornography, and gun crimes. It enforces over
900 Federal laws and oversees the activities of the 94 U.S.
attorneys throughout the country.
Mr. Robinson assumed the position of Assistant Attorney
General for the Criminal Division over 1 year ago, after it had
been vacant since August 1995. We are pleased that this
essential Division has an able chief to lead it today.
The Congress has made every effort to support the needs of
the Justice Department. The Department's budget has risen
dramatically in recent years. It has almost doubled, from close
to $11 billion in 1994 to almost $21 billion in 1999. We will
continue to support the Department of Justice in an appropriate
manner. However, there are issues of concern that we feel
should be discussed.
The Judiciary Committee for some time has confronted the
Department on the enforcement of the law on voluntary
confessions. Section 3501 of title 18 was passed by the
Congress soon after the Miranda v. Arizona decision in an
attempt to determine when a voluntary confession is admissible
in court. In the recent case of United States v. Dickerson, the
Fourth Circuit held that the statute was constitutional, and
criticized the Justice Department for refusing to permit its
career prosecutors to use this law against criminals. If the
Dickerson case is considered by the Supreme Court, the Justice
Department should urge the Court to uphold this law.
Earlier this year, this subcommittee held an oversight
hearing on this matter and heard from Reagan and Bush
administration officials who told us that those administrations
did not have a policy against the enforcement of section 3501.
Unfortunately, the Justice Department chose not to appear at
that hearing, so I hope we can discuss this issue today.
Another important issue is the enforcement of the death
penalty on the Federal level. The American public
overwhelmingly supports the death penalty. While 38 States now
permit the death penalty and many routinely use it, the death
penalty has not been carried out on the Federal level since
1963. In 1988, the Congress enacted a death penalty provision
for murder involving drug kingpins, and in 1994 greatly
expanded the number of death penalty-eligible crimes.
In response to the 1994 law, Attorney General Reno
established an elaborate internal review committee to consider
whether Federal prosecutors are permitted to seek the death
penalty. The Protocol provides for formal input by the defense
attorney to the review committee, but apparently not equal
input from a representative for the victim. I hope that this
review process at Main Justice does not discourage U.S.
attorneys from seeking the death penalty in appropriate cases.
Regarding another issue, this subcommittee, in conjunction
with Senator Sessions' Subcommittee on Youth Violence, held a
hearing earlier this year on the lack of gun prosecutions
during much of the Clinton administration. It is much more
effective to fight violent crime by separating dangerous
criminals from guns than to restrict the rights of law-abiding
citizens to bear arms.
This subcommittee has also held hearings this year on
issues that the Department and I agree could be quite
detrimental to effective Federal law enforcement. Last week, we
held a hearing on the use of Federal asset forfeiture and its
critical role in taking the profits out of many crimes,
including drug offenses. Although reform is needed in this
area, we cannot do so in such a way that it gives criminals the
upper hand.
Earlier this year, the subcommittee discussed the McDade
legislation, which requires that Federal prosecutors follow all
State ethics rules in all jurisdictions in which they operate.
It is important that we continue to review this issue to make
certain that the implementation of McDade does not interfere in
areas such as complex undercover investigations or Federal
grand jury practices.
As several Senators stated during Mr. Robinson's
confirmation hearing early last year, it is important for Mr.
Robinson to appear before the Judiciary Committee frequently to
discuss the important issues facing the Criminal Division.
Mr. Robinson, we are pleased to have you with us today.
Senator Feingold, do you have a statement?
Senator Feingold. Mr. Chairman, I will wait until the
question time to make my statement and ask questions.
Senator Thurmond. Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I am delighted
to have Mr. Robinson here. I enjoyed talking with him before he
was confirmed, and recognize the importance of the office that
you hold. As I noted at the time, you have not had intensive
experience as a prosecutor, but 3 years as a U.S. attorney.
Traditionally, the Criminal Division chief has been virtually a
career prosecutor, but I don't think that is disqualifying and
I did vote for you. I do believe that in a few areas you have
shown some progress under your leadership, just having a brief
opportunity to review some of the numbers in this year's
report.
I would like to mention a few things that I think are
important before we really get down to questions. I believe it
is important for the Department, something that we as taxpayers
ought to be concerned with, and I hope that you will focus on
it.
I think I have a few charts. Let's look at the Triggerlock
chart, maybe, first. We had hearings set for a Monday in my
subcommittee on Project Exile and the work that is done, which
is sort of like Project Triggerlock in Richmond, that your
Department of Justice was doing very well, and we wanted to
highlight that.
On the Saturday before that hearing, the President made it
his radio address, the subject, had our witnesses there with
him, and he directed them to increase prosecutions, work
together to increase the prosecution of criminals with guns.
Later within the month, the Attorney General appeared, and I
frankly did not feel like at all she had instigated any
significant change in policy.
Even with this year's numbers--there was a modest
increase--you can see that the Federal prosecutions of firearms
laws according to your own statistical data are down about 46
percent. That is a dramatic drop since 1992, and I think it
gives us pause when we are told repeatedly we have got to pass
some new Federal gun law if those laws are not being
prosecuted.
The school yard law--don't take a firearm on a school
yard--we made that a Federal crime, but there were less than 10
cases nationwide prosecuted under that. So I think the
Department needs to look at that, as well as look at the
numbers of persons who are prosecuted who attempt to purchase a
firearm in violation of the law when they have a prior criminal
history and are prohibited, the attempt to purchase if they are
discovered by the instant check process at the gun dealer's
store. None of those apparently are being prosecuted.
And frankly I am not of the opinion that ATF can claim they
are totally capable of investigating that. I think it takes a
partnership between the Criminal Division and the ATF to
identify the cases that ought to be prosecuted and set about to
prosecute them.
I also was looking at the assistant U.S. attorneys. That is
your bread and butter, your front-line troops, the people who
really do the job. Those numbers have gone up in full-time
equivalents since 1993. One year is a drop, but you are now up
to 4,600, almost 4,700, a 12-percent increase. And I think you
as a manager, the person accountable for the taxpayers to
utilize those magnificent prosecutors, need to make sure we are
getting good work from them.
I did notice from looking at your statistical report that
since 1993, tort-related work hours per attorney have dropped
significantly, from 309 hours in 1993 to 218 hours in 1998.
That is a 29-percent decrease in the number of tort-related
hours worked per attorney, from 309 to 219. So I think you
really have to look at that and the leadership has got to come
from the top.
And I know you should respect U.S. attorneys, and I do, but
within limits they have got to respond to the national
leadership of the President. He appoints them and he has a
right to expect that they aggressively pursue a criminal
agenda.
Finally, I would mention to you, and maybe we can talk
about it later, my concern about bankruptcy fraud as part of
our bankruptcy bill. There is quite a bit of fraud there.
Judges tell me there is blatant fraud sometimes and they have a
difficult time getting those investigated. There are no more
than one or two prosecutions per district nationwide per year,
and I think it is something we can improve.
Mr. Chairman, thank you for your leadership. People care
about a lot of things, but they are concerned about public
safety, they are concerned about fraud and rip-off of the
taxpayers. This Criminal Division is the national agency most
responsible for dealing with those issues and we need to make
sure it is as productive as it possibly can be.
Thank you, sir.
[The charts of Senator Sessions follow:]
[GRAPHIC] [TIFF OMITTED] T7363.001
[GRAPHIC] [TIFF OMITTED] T7363.002
Senator Thurmond. Thank you very much.
The panel consists of Mr. James Robinson, the Assistant
Attorney General for the Criminal Division. Mr. Robinson earned
a bachelor's degree at Michigan State University and a law
degree from Wayne State University. He has been an associate
and partner in the Detroit law firm of Honigman, Miller,
Schwartz and Cohn. Mr. Robinson also served as U.S. Attorney
for the Eastern District of Michigan. Before assuming his
current position, he was dean and professor of law at Wayne
State University Law School.
Mr. Robinson, we are happy to have you with us and would be
glad to hear from you at this time.
STATEMENT OF JAMES K. ROBINSON, ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Robinson. Mr. Chairman, thank you very much. I am
delighted to be back here, Senator Sessions, with you as well,
and also happy to talk with Senator Feingold at the appropriate
time. If it is permissible, I would like to make a brief
opening statement. I won't read my whole testimony, which will
be submitted for the record.
I am pleased to appear before the subcommittee today on
behalf of the Criminal Division of the U.S. Department of
Justice, and I thank the Chair and the members of the
subcommittee for this opportunity to describe the
responsibilities and activities of the Criminal Division,
including a number of initiatives we are undertaking to deal
with new challenges facing Federal law enforcement.
For the past 13 months, it has been my privilege to serve
as the Assistant Attorney General for the Criminal Division, a
post frankly I was interested in securing ever since I was the
U.S. attorney in Detroit from 1977 to 1980. Because I was a
Democrat, there was a little drought in between, so my
opportunity for public service in the Justice Department had to
wait a while. And although I tried to get the job in 1992, it
didn't come until later, but I was delighted for the
opportunity to serve.
During the period of my service for the last 13 months, I
have come to respect deeply the commitment, integrity and
dedication of the career attorneys in the Justice Department,
the outstanding assistant U.S. attorneys, as Senator Sessions
has mentioned, and the career lawyers in the Justice
Department, particularly in the Criminal Division. They are the
backbone of the Justice Department. They are here day in and
day out doing the people's work.
There are five deputy assistant attorneys general in the
Criminal Division with whom I am privileged to work everyday.
Among them, they have more than 125 years of combined
prosecutorial experience, although, as Senator Sessions knows,
I would have to asterisk that by indicating that Deputy
Assistant Attorney General Jack Keeney has 48 of those 125
years. He is a real gem and has made a major contribution over
a lifetime to the Justice Department.
When I arrived a little more than a year ago, a number of
important positions within the Criminal Division were vacant. I
made it a high priority to seek out outstanding prosecutors to
fill these positions as head of the Fraud Section, the
Organized Crime Section, the Office of International Affairs,
Chief of International Training, one of the five deputy
assistant attorney general positions, and also the current head
of the Capital Crimes Unit in the Division. These are
outstanding lawyers who will serve long after I am gone from
this position. I am confident that I have made good choices and
that they will serve the country well during many years to
come.
The mission of the Criminal Division, as alluded to briefly
by the chairman, is to develop, enforce and exercise general
oversight with regard to the prosecution of Federal criminal
law, working, of course, with U.S. attorneys in the 94 judicial
districts throughout the United States. We also work with
criminal prosecutors in the other divisions of Main Justice
that have criminal responsibility in Tax and Antitrust and the
Civil Division as well.
We oversee the enforcement of over 900 Federal criminal
statutes, establish national law enforcement policy for the
Department, and advise the Attorney General on matters
concerning Federal criminal law. We give priority in the
Department and in the Criminal Division to crime threats that
have a Federal or a uniquely national dimension, including, of
course, drug trafficking, organized crime, terrorism, white-
collar crime, alien smuggling, gang-related violence, and
crimes occurring in Indian country, among others.
We also aggressively investigate and prosecute elected and
appointed officials at all levels of the government who abuse
their office and the public's trust. Many of our most effective
law enforcement initiatives involve Federal, State and local
enforcement working cooperatively together.
As crime and justice issues increasingly transcend national
boundaries, our international presence in the Criminal Division
has grown dramatically in recent years. The Division also
provides training and technical assistance to foreign law
enforcement agencies. We negotiate and implement international
treaties for mutual legal assistance and for extradition, and
engage in joint law enforcement investigations with other
countries.
The Department has taken a proactive approach to developing
criminal law policy. An excellent example of this is the
Attorney General's Council on White-Collar Crime, of which I
serve as the Executive Director. Membership in the Council
includes representatives from regulatory, investigative and
prosecutive agencies throughout the Federal Government. The
Council attempts to identify fraudulent trends, to sponsor
training and enforcement initiatives, and to develop programs
aimed at the prevention of fraud.
Attorney General Reno believes that we should use our law
enforcement experience and perspectives to assist in preventing
fraudulent activities, in addition to our important
responsibilities to respond to crimes after they occur.
The Department has also been proactive in identifying and
developing a response to the growing problem of Internet fraud.
On May 4, 1999, the President announced the Department's
Internet Fraud Initiative which is aimed at preventing fraud,
in addition to prosecuting it when we find it. The growth of
the World Wide Web presents a whole new world of opportunity
for international and national criminals, and it is something
that we feel very strongly that the Department needs to get
ahead of the curve on.
Throughout the past year, Criminal Division attorneys have
been instrumental in obtaining important convictions across the
Nation. Attorneys from the Terrorism and Violent Crime Section
were instrumental in the indictment and transfer to United
States custody in June 1998 of Mohammed Rashed on charges
relating to his alleged bombing in 1982 of a Pan Am flight from
Tokyo to Honolulu.
Terrorism and Violent Crime Section attorneys also played a
key role in the development and indictment of the case against
two Libyan operatives for the bombing of Pan Am Flight 103.
They will be heavily involved in assisting Scottish prosecutors
during the trial of that case which is scheduled to occur in
the Netherlands.
Attorneys from our Organized Crime and Racketeering Section
stepped in when the local U.S. attorney's office was recused in
a corruption case in Texas and gained the convictions of former
members of the Houston City Council. They are also involved in
tracking new and deadly Asian and Russian organized crime
groups, a growing threat that we are working hard to get in
front of.
Another important role fulfilled by the Criminal Division
is that of national coordinator in major enforcement
initiatives. The Criminal Division focuses its narcotics
enforcement efforts and resources to complement the efforts of
other participating agencies in regional, national and
international narcotics enforcement initiatives.
In close cooperation with the U.S. attorneys, the Drug
Enforcement Administration, the FBI and other Federal, State
and local investigative agencies, the Criminal Division
provides guidance, direction and resources at the national
level for drug investigations and prosecutions.
Most of the regional and national level investigations and
prosecutions coordinated and supported by the Department of
Justice are conducted as part of the Organized Crime Drug
Enforcement Task Force program. This past year has been the
single most productive year in OCDETF's history. The number of
investigations initiated in fiscal year 1998 was 1,356, more
than the number which were initiated in fiscal year 1996 and
fiscal year 1997 combined.
In fiscal year 1998, there were 3,502 OCDETF indictments
and informations returned, compared to 2,401 in 1997, and
10,064 defendants were charged, compared to 7,619 in fiscal
1997. Already, in fiscal year 1999, 1,095 new OCDETF
investigations have been initiated, and more than 2,109
indictments or informations have been returned and 5,622
defendants charged.
Because criminal groups so often cross jurisdictional and
geographic boundaries, the level of coordination among Federal,
State and local law enforcement evidenced by OCDETF is an
important part of any effective enforcement effort. When
criminals cross international borders, as seems to be so often
the case these days, this international cooperation is
essential.
As international crime has grown because of the expansion
of such technologies as the Internet and the relative ease of
international travel, we in the Criminal Division have been
working hard to develop effective strategies to deal with
international and transnational crime. The effort has led to
unprecedented levels of coordination and cooperation with
foreign law enforcement. Recently, attorneys from our Child
Exploitation and Obscenity Section participated in an
international investigation and prosecution of child
pornography passed over the Internet.
In keeping with the idea of no ``safe haven'' for criminals
outlined in the administration's international crime control
strategy, we are also involved in encouraging our international
neighbors to pass laws criminalizing wrongful behavior so that
criminals will have no safe place to hide. Attorneys from our
Office of International Affairs negotiate mutual legal
assistance treaties with foreign countries, and we handle
extraditions and evidence requests for local prosecutors across
the Nation. We also are involved in international training with
foreign prosecutors and foreign law enforcement, and we
increasingly assign attorneys from the Criminal Division
throughout the world to assist in these international efforts.
I want again to thank the chairman and the subcommittee for
the support for the Criminal Division over many years and this
opportunity to provide a brief overview of our activities. I am
proud of what we have been able to accomplish during the last
13 months on my watch, and confident that the Criminal Division
will continue its proud history of excellence and dedicated
service on behalf of the people of this great country.
The issues that have been raised by the Chair and by
Senator Sessions are ones that I would have anticipated that we
would discuss, and I certainly have made an effort to try to
prepare myself to deal with those issues and hopefully others
that you may have. To the extent that there are matters, for
which I can't provide the immediate answer, I would be happy to
try to get that information to you as quickly as possible.
I know we said a year ago that it would be a good thing for
the Assistant Attorney General for the Criminal Division to
come back, and I appreciate this opportunity. We probably could
have done it sooner, but I am delighted for this chance and
hopefully we can continue to have this opportunity for this
important oversight activity.
If I could ask the Chair that my written remarks be
accepted as part of the record?
Senator Thurmond. Without objection, so ordered.
Mr. Robinson. Thank you very much, and I would be happy to
do the best I can to respond to the questions that you might
have. Since I anticipated Senator Sessions' questions, if you
would like I would be happy to talk about that issue or any
others that you would like to raise with me, Mr. Chairman.
[The prepared statement of James K. Robinson follows:]
Prepared Statement of James K. Robinson
Mr. Chairman and Members of the Subcommittee: I am pleased to
appear before you today on behalf of the Criminal Division of the
United States Department of Justice. I would like to thank the Chairman
and the members of the Subcommittee for this opportunity to briefly
describe the responsibilities and activities of the Criminal Division,
including a number of initiatives we are undertaking to deal with new
challenges to federal law enforcement.
The mission of the Criminal Division is to develop, enforce, and
exercise general oversight for the prosecution of federal criminal
laws, in cooperation with the United States Attorneys, except those
that are specifically assigned to other Divisions. The Division
oversees enforcement of more than 900 federal statutes; develops and
facilitates implementation of national law enforcement policy; advises
the Attorney General on matters concerning the criminal law; monitors
sensitive areas requiring coordination, such as Title III wiretaps,
attorney subpoenas, attorney fee forfeitures, and international law
enforcement; provides leadership for cooperative federal-state-local
law enforcement efforts; and coordinates law enforcement issues
relating to national security.
We give priority attention to crime threats that have a Federal or
uniquely national dimension, including drug trafficking, organized
crime, terrorism, white collar crime, alien smuggling, gang-related
violence, and crimes occurring in Indian country. We also aggressively
investigate and prosecute elected and appointed officials at all levels
of government who abuse their office and the public's trust. And as
crime and justice issues increasingly transcend national boundaries,
our international presence has grown. We provide training and technical
assistance to foreign law enforcement agencies, negotiate and implement
international treaties for mutual legal assistance and extradition, and
engage in joint law enforcement investigations with other countries.
violent crime
Our strategies in seeking to reduce violent crime, especially
organized crime and drug and gang-related violence, include efforts to
fully implement the Violent Crime Control and Law Enforcement Act of
1994, as well as other relevant statutes. We seek to identify,
penetrate and dismantle major and emerging organized criminal
enterprises, including street gangs engaged in illegal activity. We
also support comprehensive attacks on violent crime through the
establishment of multi-agency, intergovernmental task forces.
Organized Crime
With critical assistance from our Organized Crime and Racketeering
Section (OCRS), John A. Gotti, son of the former boss of the Gambino La
Cosa Nostra family in New York City, was recently indicted and
convicted along with a number of his associates. In the last two years,
RICO and other indictments have been brought against La Cosa Nostra
bosses and captains in Miami, Boston, Chicago, Detroit, Youngstown, Las
Vegas, Los Angeles and New York. A number of convictions have been
already obtained and other trials are pending.
Labor Racketeering
In January 1999, the Department of Justice extended its agreement
with Laborers' International Union of North America (LIUNA) to conduct
a program of internal reform directed at the removal of La Cosa Nostra
(LCN) from within LIUNA. OCRS continues to closely monitor the program.
During the three-year period since the original agreement was entered
into in January 1995, LIUNA has achieved numerous reforms, including
removal of over 100 persons from LIUNA for barred conduct, the adoption
of an ethical practice code for union officers, and the creation of a
permanent internal union disciplinary structure. Thus far, 13 members
and 29 associates of the LCN have been removed from LIUNA. We achieved
similar success in connection with a consent order involving the
leadership of the Hotel and Restaurant Workers Union.
Russian Organized Crime (ROC)
A defendant named Ludwig Fainberg recently pleaded guilty to RICO
charges including allegations that he had attempted to purchase a
Soviet submarine to smuggle drugs from Colombia. Oleg Kirillov, a
leader of the organized crime group based in Russia's third largest
city, Nizhny-Novgorod, was convicted after trial on charges including
RICO, visa fraud, narcotics offenses, extortion, and money laundering
in the Southern District of Florida. The Nizhny-Novgorad organized
crime group is considered by law enforcement to be a very significant
ROC group.
In the Eastern District of New York several members of the Gufield/
Kutsenko brigade, a group with ties to Vyachaslav Ivankov, the
incarcerated leader of Organisatsiya and a close associate of
Solntsevskaya leader Sergei Mikhailov, were indicted for RICO
extortion, hostage taking, arson, fraud, and trafficking in women.
Asian Organized Crime
On the West Coast, prosecutions continue relating to robberies of
numerous computer chip companies. The Los Angeles and San Francisco
Organized Crime Strike Force Units have brought 12 indictments charging
over 120 defendants with offenses arising from the robberies of over
100 computer chip companies resulting in the loss of over $40 million.
Over 70 defendants have been convicted, and charges against other
defendants are pending. In a related computer chip robbery indictment
brought in Seattle, Washington, six of eight defendants have been
convicted.
Two members of a Fukienese gang based in New York pled guilty in
the Central District of California to hostage taking relating to the
kidnapping of the 17 year old son of a wealthy Taiwanese businessman.
This case involved significant investigative cooperation between police
in the People's Republic of China (PRC) and United States law
enforcement. This cooperation went well beyond the mere sharing of
information. Aspects of the scheme, including the ransom drop, were
carried out in the PRC, and defendants were simultaneously arrested in
the United States and the PRC. The boy was rescued. The PRC will try
the defendants that were arrested in the PRC, and the prosecutors in
the PRC and the United States continue to cooperate with each other.
Terrorism
Our Terrorism and Violent Crime Section (TVCS) is involved in the
development, implementation, and support of nationwide programs,
consistent with the Anti-Violent Crime Initiative, designed to upgrade
violent crime enforcement efforts generally and to address evolving
violent crime problems. These programs focus priority attention on such
violent crime issues as gang and firearms violence. Additionally,
Section attorneys participate directly in a limited number of important
prosecutions where their expertise can be of particular assistance. For
example, TVCS attorneys participated in the development and trial of a
major motorcycle case in Tampa and a major street gang case in Los
Angeles.
TVCS is an integral part of the government's extensive efforts
relating to both international and domestic terrorism, focusing on
prevention, crisis response, case development, and prosecution. TVCS
serves as the Department's coordinator of crisis response efforts,
including managing and handling training for Attorney Critical Incident
Response Group prosecutors and a designated Crisis Management
Coordinator for each U.S. Attorney's Office. Within hours of the tragic
bombing of the Murrah Federal Building in Oklahoma City in 1995, two
TVCS attorneys proceeded to the scene to assist in the crisis response
and case development efforts, and subsequently in the prosecution of
the case. Additionally, TVCS is deeply involved in preparations to
address the threat posed by chemical, nuclear, and biological
terrorism.
Terrorist attacks on U.S. interests overseas must, in most
instances, be prosecuted in the District of Columbia. TVCS attorneys,
together with the U.S. Attorney's Office in D.C., have direct
responsibility for the development and prosecution of such cases. In
fulfilling this role, TVCS attorneys were instrumental in the
indictment and transfer to U.S. custody in June 1998 of Mohammed Rashed
on charges relating to his alleged bombing in 1982 of a Pan Am flight
from Tokyo to Honolulu. Similarly, TVCS attorneys were involved in the
1997 prosecution and conviction of Tsutomu Shirosaki for the 1986
rocket attack on the U.S. Embassy in Jakarta, Indonesia. TVCS attorneys
also played a key role in the development and indictment of the case
against two Libyan operatives for the bombing of Pan Am Flight 103, and
will be heavily involved in assisting Scottish prosecutors during the
trial of the case in the Netherlands.
In the domestic terrorism area, a TVCS attorney and a Fraud Section
attorney have been directly involved in the prosecution of the
notorious Montana Freemen defendants, who engaged in a series of
violent and fraudulent acts culminating in a protracted standoff with
the FBI. Another TVCS attorney co-tried a RICO case against two white
supremacists in Arkansas, which recently resulted in the conviction of
both defendants and the imposition of the death penalty against one.
nazi war crimes
The Office of Special Investigations, which handles all cases
involving suspected participants in Nazi-sponsored acts of persecution
committed during the period 1933-45, was undefeated in litigation
during the past 12 months, winning court decisions in twelve of these
uniquely challenging cases. OSI won 4 denaturalization cases in federal
district courts, 4 deportation cases in U.S. immigration courts, 2
appellate cases before the Board of Immigration Appeals, and major
subpoena enforcement cases in federal district courts in New York and
Florida against two individuals who refused to testify about their
wartime activities. The unit also prevailed in an important declaratory
judgment action in Pennsylvania. During the past year, OSI succeeded in
removing 4 suspected Nazi criminals from the United States.
During the past year, OSI also commenced 4 new prosecutions (one
denaturalization case, which had been set aside by a Court of Appeals
(Demjanjuk) and three deportation cases). The unit also conducted
trials in two denaturalization cases, one of which resulted in judgment
for the government and the other of which has not yet been decided.
Following the enactment in October of the Nazi War Crimes Disclosure
Act, OSI's Director was appointed to represent the Department's inter-
agency working group established to coordinate Executive Branch
compliance with the Act's requirement that the Government locate,
declassify and make public substantially all records in government
possession relating to suspected Nazi criminals and to assets
misappropriated from Holocaust victims. OSI has already provided major
logistical, historical and financial support to this recently created
Working Group.
narcotics enforcement
Although most narcotics enforcement efforts in the United States
occur at the state and local level, the overwhelming majority of
illicit drugs consumed in the United States originate overseas. The
vast majority of illicit drugs entering the United States enter across
our 2,000 mile southern land border and the adjoining coastal areas. In
support of the goals and objectives of the President's National Drug
Control Strategy and the Department of Justice Drug Control Strategic
Plan, the Criminal Division focuses its narcotics enforcement efforts
and resources to complement the efforts of other participating federal
departments and agencies, emphasizing regional, national, and
international narcotics enforcement initiatives.
Under the leadership of the Attorney General--and in close
coordination with the U.S. Attorneys, DEA, FBI and other federal,
state, and local investigative agencies--the Criminal Division provides
guidance, direction, and resources at the national level for drug
investigations and prosecutions. The Attorney General's Southern
Frontiers Committee and its associated initiatives including the
Southwest Border Initiative and the Caribbean Initiative exemplify the
Division's role in assisting in the coordination and direction of our
policies in the fight against drug trafficking and abuse. On an
operational level, in close cooperation with the U.S. Attorneys'
Offices, the Special Operations Division, and other investigative
agencies, the Division coordinates the litigation and enforcement
activities of the Southwest Border Initiative and oversees the
Organized Crime Drug Enforcement Task Force (OCDETF) program.
Southwest Border Initiative
The Southwest Border Initiative (SWBI) was initiated by the
Criminal Division, the border U.S. Attorneys, DEA, and FBI in 1994-
1995. The original purpose of the SWBI was to develop a regional
strategy to disrupt and dismantle the most significant factions of the
Mexican Federation that were importing cocaine, methamphetamine and
other illicit drugs into the U.S. and that were involved in the
corruption of public officials at U.S. border crossings in the
Southwest. Shortly after its inception, other federal law enforcement
agencies, such as the U.S. Customs Service and the INS/Border Patrol,
joined in the implementation of SWBI. The initiative expanded in scope
to include an anti-corruption task force effort and to re-focus
attention on the strategic use of asset forfeiture as a law enforcement
tool against the trafficking organizations. The national investigations
and prosecutions undertaken as part of the SWBI are coordinated and
supported by the Special Operations Division and the Criminal Division.
As a result of the successes achieved under the rubric of SWBI in
the past year or so, we have identified and targeted the emerging
trafficking threats who use our Southwest border as their gateway into
the U.S. Participating investigators and prosecutors continue to
identify and prioritize Colombian and Mexican drug trafficking targets
subjects and their United States-based criminal counterparts for
investigation and share rather than compete for resources and
information. In addition to criminal organizations trafficking in
illegal drugs, included among the new targets are major international
criminal organizations specializing in money laundering and trafficking
in precursor and essential chemicals.
Special Operations Division
The Special Operations Division (SOD) is a joint national
coordinating and support entity comprised of agents, analysts, and
prosecutors from DEA, the FBI, the United States Customs Service, and
the Criminal Division. SOD coordinates and supports regional and
national-level criminal investigations and prosecutions targeting the
major criminal drug trafficking organizations threatening the United
States. Where appropriate, state and local investigative and
prosecutive authorities are fully integrated into SOD-coordinated drug
enforcement operations. The drug investigative databases of all of the
participating agencies are fully available within the SOD. The Criminal
Division's Narcotic and Dangerous Drug Section coordinates SOD
investigations with Assistant U.S. Attorneys across the country to
ensure that each district involved in a nationwide investigation is
informed as to the actions taking place in the other districts and the
interrelationship of each district's targets in the overall criminal
conspiracy. The Criminal Division ensures agreement on a consensus plan
of attack, so that large, nationwide trafficking groups are taken down
in a single, well-timed enforcement action. SOD will soon expand to
include a Financial Group to focus on the financial activities of the
criminal trafficking organizations and their ill-gotten assets.
The Organized Crime Drug Enforcement Task Force Program
Most of the regional and national level investigations and
prosecutions coordinated and supported by the SOD are conducted as part
of the OCDETF program. In describing the OCDETF program, I must first
highlight the dramatic increase in the OCDETF program participation
over the past year, the single most productive year in OCDETF's
history. The number of investigations initiated in fiscal year 1998 was
1,356, more than the number in the past two years combined. The 1998
investigations targeted those criminal organizations responsible for
the greatest volumes of drugs and the greatest incidence of violence in
the United States. Also in fiscal year 1998, there were 3,502 OCDETF
indictments/informations returned, compared to 2,401 in fiscal year
1997, and 10,064 defendants charged, compared to 7,619 in fiscal year
1997. The OCDETF conviction rate was 88 percent, with 58 percent of
OCDETF defendants receiving sentences of more than five years. Already
in fiscal year 1999, 1,095 new OCDETF investigations have been
initiated, and more than 2,109 indictments/informations returned and
5,622 defendants charged. (OCDETF statistics reported as of July 20,
1999.)
This extraordinary growth in the program reflects the Department's
total commitment to what the Deputy Attorney General calls its
``premier'' counterdrug effort. The program has seen such growth
because all the participating federal law enforcement agencies and the
93 United States Attorneys recognize that the most effective weapon
against sophisticated drug trafficking organizations is the OCDETF
approach--multi-agency, often multi-jurisdictional, comprehensive
investigations.
OCDETF cases target organizations responsible for the importation
and distribution of all classes and categories of drugs and target the
major drug trafficking and money laundering networks in virtually every
region of the globe. OCDETF investigations initiated in fiscal year
1998 range from those coordinated by SOD to those focused on street
corner gangs, which bring homicides, shootings, and fear to our cities'
neighborhoods.
Money Laundering
Enforcement efforts against a criminal trafficking organization
will not succeed unless the organization's financial infrastructure is
identified and targeted and its proceeds and instrumentalities seized
and forfeited both at home and abroad. In attacking the financial
component of drug trafficking, U.S. law enforcement and regulators
exploit two crucial points of vulnerability for the drug money
launderers. First, the sheer volume and bulk of the illicit cash
generated by the sale of illicit drugs in the United States, and the
need of the traffickers to smuggle this cash out of the United States
or place it into the legitimate financial system offer U.S. law
enforcement a large and valuable target to pursue.
Second, although the international drug traffickers generally
produce, process, and transport their illicit drugs from and through
locations with only a limited U.S. law enforcement presence, once the
illicit drugs are sold in the U.S., the traffickers and their domestic
or international money launderers, immediately face the full effect of
the U.S. law enforcement and regulatory anti-money laundering regimes.
To exploit these potential trafficker vulnerabilities, the Criminal
Division and United States Attorneys' Offices, working with the
Department of the Treasury, the U.S. Postal Inspection Service and
federal regulators, rely upon an interagency and coordinated national
approach that targets specified sectors of the financial system through
which drug proceeds are laundered.
Asset Forfeiture
Asset forfeiture is a powerful law enforcement weapon that the
Justice Department uses in its battle against domestic and
international drug trafficking organizations. Using asset forfeiture,
the Department can attack the economic infrastructure of these criminal
organizations by denying them the profits of their ill-gotten gains. To
maximize the use of asset forfeiture, the Department is integrating
forfeiture in its law enforcement plan to strike drug traffickers at
the source of their economic power.
Our Asset Forfeiture and Money Laundering Section (AFMLS) has
participated in the investigation and prosecution of professional money
launderers for the Cali and Juarez cartels and numerous Mexican and
Venezuelan bankers who assisted in laundering over $80 million in drug
proceeds. Three Mexican banks and over forty individuals have been
indicted on money laundering charges. In a related civil action, AFMLS
filed a civil forfeiture complaint in the District of Columbia seeking
forfeiture of approximately $12.3 million in drug proceeds and
laundered money that was deposited into numerous foreign bank accounts.
Also after nearly seven years of litigation in the largest global
forfeiture case, a total of $691 million has been distributed to the
victims of the BCCI bank fraud.
In this era of globalization, the Department's efforts to disrupt
and dismantle drug trafficking organizations mandates international
cooperation at all levels. While working with other countries to
develop international forfeiture cases, the Criminal Division actively
promotes international forfeiture cooperation to halt the flow of
illegal proceeds across borders and into financial institutions through
the negotiation of bilateral forfeiture cooperation and asset sharing
agreements.
Asset sharing provides both foreign countries and the United States
with the resources to maximize the law enforcement potential of the
asset forf6iture laws. The United States has entered into agreements
with foreign countries that allow for cooperation in tracing, seizing,
forfeiting, and sharing of assets. Since the beginning of our sharing
program in 1989 through fiscal year 1998, more than $192.9 million has
been forfeited by the United States with the assistance from 23 foreign
countries. Of that amount, approximately $66.7 million has been shared
with those cooperating countries.
white collar crime
White collar crime not only victimizes our citizens but has an
insidious and corrupting effect on our commercial and public
institutions. We are attempting to deter and combat it by identifying,
investigating, and then successfully prosecuting high priority white
collar criminal offenses nationwide, as well seeking forfeiture of the
illegal proceeds and restitution to victims. We are aided in these
efforts by better use of intelligence that helps us identify emerging
areas of white collar crime and by enhanced cooperation with foreign
governments in investigating and prosecuting international syndicates
engaged in white collar crime.
The Attorney General's Council on White Collar Crime
The Attorney General's Council on White-Collar Crime (Council) was
established by Order of the Attorney General in July 1995 as an
interagency body to coordinate the focus of federal law enforcement
efforts to combat white-collar crime. It is chaired by the Attorney
General and the Assistant Attorney General of the Criminal Division
serves as the Executive Director. The membership of the Council
includes representatives from regulatory, investigative and prosecutive
agencies. The Council attempts to identify fraudulent trends, sponsor
training and enforcement initiatives and develop programs aimed at the
prevention of fraud. We have focused at different times on
telemarketing scams, pension fraud, securities fraud by brokers,
counterfeit aircraft parts, the unlawful sale of CFC for air
conditioners, criminal tax enforcement, counterfeit software and cyber
crimes. Currently, the Council is examining the nature and extent of
problems which are emerging with the growth of the internet. We have
also greatly improved the training in advanced white-collar crime areas
of all federal law enforcement agents and prosecutors. The Council
brought together for the first time the FBI Academy, the Federal Law
Enforcement Training Center and the National Advocacy Center to develop
joint modular training opportunities.
The Attorney General firmly believes that a greater emphasis on
fraud prevention reinforces the traditional mission of law enforcement
in combating fraud, since a primary goal of enforcement activity is to
prevent the occurrence of future crimes. The Council seeks to sponsor
and publicize fraud prevention initiatives by all its member agencies.
Health Care Fraud
The prosecution of health care fraud is a major Department of
Justice priority. Health care fraud siphons billions of dollars away
from federal health care programs that provide essential health care to
millions of elderly, low-income, and disabled Americans, as well as to
the families of the members of our armed services. In addition, health
care fraud and abuse affects private insurers and--most significantly--
consumers of health care. Fraudulent billing practices may further
disguise inadequate or improper treatment, by billing for services not
rendered or rendered by unlicensed and unqualified practitioners. Other
schemes, such as kickbacks, may corrupt medical providers' decision
making by placing profit above patient welfare, leading to grossly
inappropriate medical care, unnecessary hospitalization, surgery, tests
and equipment. We are particularly concerned about schemes which affect
the quality of medical care. For this reason we are turning our
attention to fraud in the managed care and nursing home environments,
where incentives to save money may result in the ``underprovision'' of
medical and nursing services, to the detriment of patients' health.
The Criminal Division's Fraud Section plays a leadership role in
the Department's health care fraud enforcement effort. In addition to
handling a docket of significant health care fraud cases, the Fraud
Section chairs a national level, multi-agency working group, develops
and provides guidance and advice to other departmental components on a
range of health care fraud enforcement policy and legal issues, and
serves in a vital liaison function with other federal and state
agencies involved in health care fraud enforcement activities.
The Department's health care fraud enforcement strategy has
achieved notable success. In the past fiscal year alone, the Department
obtained criminal convictions of 326 defendants in 219 criminal cases,
and there were awarded $480 million as a result of criminal fines,
civil settlements, and judgments. In the past two fiscal years, the
Department has collected $1.2 billion in criminal and civil judgments
and settlements in health care fraud cases.
Elder Fraud
Since 1993, when the Department announced the first nationwide
undercover operation devoted to telemarketing fraud, Operation
Disconnect, the Department has demonstrated a sustained commitment to
investigating and prosecuting those who engage in telemarketing fraud,
particularly when directed at vulnerable segments of the population.
Federal prosecutors and agents have seen numerous telemarketing fraud
cases in which older men and women have been targeted as potential
victims and suffered devastating financial losses. The Department has
therefore taken a variety of measures to prosecute telemarketing fraud
more effectively: conviction of nearly 600 individuals in Operation
Senior Sentinel (1993-1996); prosecution of nearly 800 individuals in
Operation Double Barrel (1996-1998); and establishment of a National
Tape Library that now houses more than 13,000 consensual tape
recordings of fraudulent telemarketers' ``pitches.'' In addition, the
Department has developed a number of telemarketing fraud prevention
projects, including the inclusion of telemarketing fraud Web pages on
its Web site and the development of a pilot project called Elder Fraud
Prevention Teams (EFPT). The EFPT project seeks to develop a
coordinated approach--involving the AARP and federal, state, and local
law enforcement and regulatory agencies--to outreach and prevention
programs that focus on various frauds directed at the older population
in various communities.
Internet Fraud
The Department of Justice has also been proactive in identifying
and developing a response to the growing problem of Internet fraud. On
May 4, 1999, for example, the President announced the Department's
Internet Fraud Initiative, which involves a six-part approach to
combating Internet fraud:
1. Coordination of expanded enforcement efforts. This involves use
of interagency working groups--such as the Telemarketing and Internet
Fraud Working Group--and other mechanisms to coordinate law enforcement
activities against Internet fraud at all levels of government.
2. Coordinated training on Internet fraud for federal, state, and
local prosecutors and agents. This involves the Department's funding of
Internet/telemarketing fraud training for state and local law
enforcement, and similar training for experienced federal prosecutors
and agents. The Department is now preparing training for federal and
local prosecutors through its National Advocacy Center in Columbia,
South Carolina.
3. Improving federal analysis and use of Internet fraud
information. This involves collaboration between the FBI and the
National White-Collar Crime center to establish the Internet Fraud
Complaint Center, a national center for analysis and strategic use of
information on Internet fraud schemes. It also envisions closer ties
and formal referral procedures for the FTC, the SEC, and other agencies
for possible criminal violations by Internet fraud schemes.
4. Developing information on the nature and scope of Internet
fraud. This involves possible development of a method for reliably
estimating the volume of various forms of Internet fraud, and sharing
of information on current Internet schemes with the Department's law
enforcement and regulatory agency partners.
5. Supporting and advising on federal Internet fraud prosecutions.
This involves improving mechanisms for coordination and communication
among federal prosecutors, and for supporting federal prosecutions with
prosecutive manpower and other resources.
6. Public outreach and education. This involves a two-track
approach in appropriate collaboration with the private sector: seeking
technological means for reducing the incidence of fraud; and keeping
the public informed about current schemes and how to handle them. In
particular, the latter track involves the Department's publication of
Web pages devoted to Internet fraud, exploring the developing of
public-service and other information on Internet fraud, and expanding
on current public-private partnerships to combat the problem.
Public Corruption
The Department remains deeply concerned about public corruption. An
excellent example of the kind of complex investigation and prosecution
of local corruption undertaken by the Criminal Division involved former
Houston City Councilman Ben Reyes, former Houston Port Commissioner and
lobbyist Elizabeth Maldonado, and other current and former Houston City
Council members. Reyes and Maldonado were each convicted of conspiracy
and federal program bribery after a three-month jury trial in the
Southern District of Texas. Reyes, a member of the City Council for 16
years, and a very influential community leader, was the ringleader of
the conspiracy and the initial target of a lengthy undercover
investigation conducted by the Federal Bureau of Investigation. This
matter was the subject of intense media coverage in Houston throughout
the investigation and trials, and was handled by the Division's Public
Integrity Section after recusal of the United States Attorney's Office.
The Criminal Division is also actively involved in international
efforts to combat corruption, including work with the Organization for
Economic Cooperation and Development and the Council of Europe. The
Division also participated in the Vice President's Global Forum on
Fighting Corruption. The forum included representatives from 90
governments and examined the causes of corruption and practices that
are effective to prevent or fight it. The Division has conducted
briefings and training sessions in a number of different countries.
The Independent Counsel Act
The Criminal Division's Public Integrity Section was charged with
assisting the Attorney General in fulfilling her obligations under the
Independent Counsel Act. This includes conducting initial inquiries and
preliminary investigations pursuant to the provisions of the Act, and
then making appropriate recommendations through my office to the
Attorney General. Since July 1, 1998, the Division has participated in
more than a dozen independent counsel matters. During the year the
Division has also assisted independent counsels with their
investigations. Notwithstanding the expiration of the Independent
Counsel Act on June 30, 1999, the Division will continue to work with
the sitting independent counsels to provide support for their ongoing
investigations.
Computer Crime
As we enter the 21st Century, we must confront the increasing
sophistication of criminals and new technologies that expand the
potential for criminal conduct while at the same time impeding our
ability to bring criminals to justice. Since being appointed head of
the Criminal Division a little over one year ago, one of my priorities
has been to extend the focus and resources of the Division to the new
methods and types of crimes that are an increasing threat to the
nation.
One of those is computer crime. The incidence and complexity of
computer crime continue to increase rapidly as greater numbers of
people develop proficiency in manipulating electronic data and
navigating computer networks, and as worldwide access to the Internet
continues to skyrocket. As a result of emerging computer technology
over recent years, significant attention has been focused on the
vulnerability of our critical national infrastructure to cybercrime and
cyberterrorist attacks, including electronic espionage. The nation has
become increasingly reliant on computer networks to support every
critical aspect of American life, including telecommunications, power
delivery, transportation, delivery of government services, and banking
and finance. Cyberterrorists do not have to worry about obtaining a
visa or smuggling explosives into the country. From any location on the
planet, they can launch a devastating attack of ones and zeros against
U.S. networks in a fashion that could shut down telecommunications
services, power grids, major transportation hubs, or other vital public
services. As the National Research Council, an arm of the Academy of
Sciences, recognized several years ago: ``Tomorrow's terrorist may be
able to do more damage with a keyboard than with a bomb.''
Consequently, the Department has undertaken a Computer Crime
Initiative under the leadership of the Computer Crime and Intellectual
Property Section (CCIPS). This initiative, originally adopted in 1991,
directed CCIPS predecessor, the Computer Crime Unit, to ascertain the
scope of the problem, coordinate law enforcement cybercrime efforts,
provide training to agents and prosecutors, develop an international
response, propose and comment on legislation, and formulate policies
relevant to the investigation and prosecution of computer crime.
Additionally, the Department has designated at least one Assistant
United States Attorney in each district to serve as a Computer and
Telecommunications Coordinator, or CTC. These individuals, working
closely with CCIPS, prosecute high-tech cases and serve as a technical
resource for their entire office. We have devoted such resources to
high-tech crime because we recognize the threat of cybercrime and
cyberterrorism, and we know that no country has more to lose from
criminals attacking computer networks, or using such networks to
facilitate traditional offenses.
As I noted, electronic criminals can cross borders with impunity,
whereas law enforcement must respect national boundaries. For this
reason, it is particularly important that law enforcement address such
cases as quickly and efficiently as possible. There are two issues
seriously handicapping international law enforcement in the fight
against electronic crimes: (1) establishing the identity and location
of network criminals; and (2) acquiring evidence stored on data
networks that span international borders.
To address these problems, for the last several years, the U.S. has
been active in the Subgroup on High-Tech Crime of the G8 countries and
in the Cybercrime Committee of the Council of Europe. The G8 subgroup
focuses on practical solutions, with an emphasis on tracing
communications, outreach to industry, and expanding the network of
high-tech law enforcement experts available 24 hours a day to respond
to urgent requests in cases involving electronic evidence. The
Cybercrime Committee of the Council of Europe, in which the U.S.
participates as a deeply-involved observer country, is drafting a
convention focusing on cyberspace offenses, international cooperation,
the 24/7 emergency network, and related issues. The U.S. will remain
actively engaged in these arenas.
Intellectual Property Rights Initiative
We are also undertaking an Intellectual Property Rights Initiative,
which will give greater priority to intellectual property crime. In the
last several years, the magnitude, severity, and impact of intellectual
property crime has grown dramatically. It is now widely reported by law
enforcement officials around the world that criminal syndicates are
exploiting the high profits and low risks from copyright and trademark
piracy to finance other criminal enterprises, including narcotics
trafficking. As a world leader in intellectual products, the United
States has become the target of choice for thieves of material
protected by copyright, trademark or trade secret designation, and the
economic loss to American industries is enormous.
Our initiative calls for giving increased priority to prosecution
of high-quality intellectual property cases in selected districts, as
well as increased training for investigators and prosecutors and
support of the Custom Service's border efforts in this area. We also
are working for changes in the Sentencing Guidelines to recognize the
seriousness of intellectual property crimes and to calculate more
accurately the economic loss caused by such crimes.
child exploitation and obscenity
The Child Exploitation and Obscenity Section regularly works with
the Federal Bureau of Investigation and its Innocent Images national
initiative, the U.S. Customs Service and its Cybersmuggling Squad, and
the U.S. Postal Inspection Service on child pornography projects. The
Section has been actively involved with the Innocent Images Project
since its inception and has worked for many years with the Customs
Service on its child pornography projects, most recently on Operation
Cheshire Cat, an international child pornography ring investigation.
As we approach the new century, it is becoming increasingly
apparent that we need to work together with other countries to develop
a global approach to combat the victimization of children from child
pornography and trafficking for criminal sexual exploitation. Toward
that end, the Child Exploitation and Obscenity Section has become more
involved in international law enforcement training and policy
development in both of these areas, in addition to the work the Section
does domestically on these issues. At the end of September, the United
States, along with the European Union and Austria, will sponsor a
global conference on combating child pornography on the Internet in
Vienna, Austria. The Section is working toward developing international
protocols for the investigation and prosecution of child pornography
cases.
To assist the law enforcement personnel and the prosecutors in the
United States Attorney Offices, the Section worked with the Executive
Office of the United States Attorneys to implement a toolkit that
includes a laptop computer and assorted software to enhance the
capabilities of investigators and prosecutors to work these cases
successfully. Attorneys from the Section serve as legal advisors to the
Internet Crimes Against Children Task Force Program. Ten jurisdictions,
involving local and state law enforcement agencies, have established
task forces with grants from the Office of Juvenile Justice and
Delinquency Prevention in the Office of Justice Programs to investigate
Internet crimes against children in their respective communities. Funds
are available this year to establish task forces in additional
communities.
Also the Department has become more active in combating trafficking
in women and children. Our expanded efforts include working with other
agencies to address these problems, including the Departments of the
Interior and Labor to investigate trafficking issues in the
Commonwealth of the Northern Marianas. As in the area of child
pornography, the Division provides training, both domestically and
internationally, on the issue of trafficking. For example, training was
provided for the Baltic countries in Warsaw last spring. Another
training session is scheduled for later in the year for representatives
from the Czech Republic and Bulgaria. We are working on training
programs to address these issues in other parts of the world,
particularly Asia and Latin America.
Our experiences investigating and prosecuting these child
exploitation issues domestically enable us to share our knowledge with
other countries to help them better address these situations in their
countries. The Internet knows no boundaries, nor should our efforts to
protect children be limited to our borders.
international issues
Modern technological advances and the ease of international travel,
communication, and access have also made the problems of transnational
crime and international fugitives priorities for the Criminal Division.
The Office of International Affairs (OIA), which is responsible for
negotiating and handling all incoming and outgoing international
extradition and mutual legal assistance requests, involving state and
local as well as federal authorities, has seen an extraordinary
increase in activity in recent years as criminals have become ever more
mobile and creative in their search for safe havens from justice for
themselves and their assets and their manipulation of legitimate trade
markets and transnational institutions to their own illicit advantage.
OIA has responded with a program to modernize our bilateral treaties
and international conventions to enhance their flexibility and ability
to deal with increasing and increasingly sophisticated patterns of
international criminal activity.
In addition to expanding the network of Mutual Legal Assistance
Treaties, OIA is working to modernize extradition between nations as
the most logical, effective, and equitable mechanism for ensuring that
the interests of justice are served in the international arena. This
includes acceptance by other nations of the principle of extraditing
their own citizens for serious crimes. Consistent successes have been
realized in the last year in this regard, including recent notorious
cases involving the surrender by Mexico of Jose Luis Del Toro, Jr.,
alleged hired killer of the mother of quadruplets in Florida, and the
arrest in the United Kingdom of three Egyptian nationals charged with
involvement in the terrorist bombing of our Embassies in Kenya and
Tanzania last summer. Successes in spreading the word on the benefits
of extraditing nationals have been achieved with Israel, Colombia, and
the Dominican Republic involving changes or clarification of their
domestic laws to allow such extraditions; the European Union endorsing
and encouraging the proposition; and such countries as Bolivia,
Argentina, and Paraguay signing or implementing new bilateral treaties
that make no exception to extradition on the basis of the fugitive's
citizenship.
As its caseload and responsibilities have expanded, OIA and the
Criminal Division have found that merely having treaty relationships
are not enough in a number of foreign jurisdictions and that it has
become extremely important to our success in dealing with our
international counterparts and in assisting our U.S. law enforcement
colleagues posted abroad to station Department of Justice attorneys at
certain Embassies and Missions overseas. We currently have such
judicial attache positions in Rome, Bogota, Mexico City, and Brussels
(for the European Union) and detail positions in London and Paris. Due
to the perceptible advantages to our extradition and mutual legal
assistance relationships from having a ``hands-on'' Justice Department
attorney in-country, we also plan, and hope to obtain authorization
for, new positions in Asia, Latin America, the Caribbean, and the
Middle East. Using such well-located resources, the Criminal Division
will be far better equipped to deal with the enormously increasing
problem of international crime and its devastating effects on the
citizens and residents of this country.
International Criminal Investigative Training Assistance Program
The International Criminal Investigative Training Assistance
Program (ICITAP) was created in 1986 to train criminal investigators in
Latin America. Today, ICITAP is a comprehensive law enforcement
development program that works in more than 20 countries world-wide.
ICITAP currently provides two kinds of assistance programs: technical
assistance to develop entire police forces during peace operations and
specialized training to improve existing police forces in emerging
democracies. ICITAP utilizes of the skills of state and local police
officers as well as federal agents. Assistance programs promote
internationally accepted principles of human rights, the rule of law
and democratic police practices.
ICITAP is involved in a number of challenging new assignments. At
the request of the Department of State, ICITAP will assist the
Organization for Security and Cooperation in Europe to train 3,000 new,
local police in Kosovo. To fulfill U.S. commitments under the Wye River
Accords, ICITAP is assisting the Palestinian police to collect illegal
weapons in the West Bank and Gaza. In Albania, ICITAP will train the
Rapid Intervention Force that polices Albania's sensitive border with
Kosovo. In Indonesia, ICITAP is providing technical assistance in civil
disorder management. In El Salvador, an ICITAP ``911 emergency response
program'' has significantly reduced crime in the country's second
largest city. ICITAP is also involved in important assistance programs
in the former Soviet republics, South Africa and Latin America.
Overseas Prosecutorial Development, Assistance and Training (OPDAT)
The Division provides Overseas Prosecutorial Development,
Assistance and Training (OPDAT) rule of law assistance in Africa,
Central and Eastern Europe, Latin America and the Caribbean, and in the
Newly Independent States, including the Russian Federation through
reimbursement from the Department of State. In Africa, OPDAT efforts
first assessed the criminal justice systems in Rwanda and Liberia and
then placed a resident legal advisor in Rwanda and will shortly place
one in Liberia. Our assistance programs focus on the enormous problems
of backlogged felony cases and the pretrial detention of 130,000
accused in Rwanda and will improve the competence and efficiency of
prosecutors and judges in Liberia. In Central and Eastern Europe, OPDAT
activities complemented its on-going, criminal justice technical
assistance and training programs in Poland and Latvia, run by resident
legal advisors, by placing legal advisors in Romania and Bosnia, and
also by initiating assistance activities in Lithuania and Bulgaria.
Through OPDAT we began a skills development program for Albanian
prosecutors and judges, and assistance with the development of
organized crime strike forces for Hungarian prosecutors and
investigators. In Latin America and the Caribbean (Haiti), the OPDAT
program concentrated on the training and deployment of new prosecutors,
magistrates, and judges and provided development assistance to seven
model prosecutors offices. A joint US-Mexican training program for
prosecutors and investigators involved in counter-narcotics operations
was started and thus far two joint training sessions have been held,
one in Mexico and the other at the Department's training center in
Colombia, South Carolina. The model of justice sector institution
building underway in Colombia, run by a resident legal advisor, was
replicated through the commencement of OPDAT programs in Argentina,
Brazil, Mexico, and Venezuela. In the Newly Independent States, we
expanded our criminal justice assistance program, already underway in
the Russian Federation where we have a resident legal advisor, by
commencing assistance activities in Armenia and Moldova, as well as in
Georgia and Ukraine, where resident legal advisors have begun their
duties. In addition, we started programs which will address criminal
justice sector development needs in Kazahkstan, Kyrgyzstan, and
Uzbekistan.
The OPDAT program also provided a forum for comparative law
dialogue to promote international legal assistance by hosting more than
600 international visitors from countries throughout the world who came
to the United States to gain an appreciation of our legal system. We
provided professional programs in the form of specially tailored
discussions and workshops, enhanced in numerous cases by presentations
in foreign languages by our multi-lingual attorneys.
conclusion
We will face all the challenges that I have described today
recognizing that the Department of Justice is a crime-fighting partner
with other federal, state and local agencies, and that we must work
together strategically to define our roles and coordinate our efforts
so that our scarce resources can have the greatest impact toward
reducing crime and violence across America.
Mr. Chairman and Members of the Subcommittee, I hope that this
overview is helpful to your understanding of the work of the Criminal
Division. I would be pleased to answer any questions that you may have.
Senator Thurmond. Mr. Robinson, it is widely known that
Attorney General Reno is personally opposed to the death
penalty, while at the same time she personally decides whether
to seek the death penalty in any Federal case. I understand
that the Attorney General has authorized the death penalty to
be sought in less than 30 percent of the over 400 cases that
she has reviewed.
The question is: has her personal opposition had any impact
on the number of death penalty cases that have been sought?
Mr. Robinson. Mr. Chair, I believe it has not, and I think
your numbers are right. As I understand it, there have been 417
decisions made after the Death Penalty Protocol was developed
in death-eligible cases. The Attorney General agreed with the
recommendations in U.S. attorneys in 377 of those 417 cases.
I know that a letter was submitted to the Chair on June 24
that provides additional information as to the breakdown of the
ones where there might have been disagreement. My understanding
is that the Attorney General decided to seek the death penalty
in 19 of the cases in which there was disagreement and decided
not to seek the death penalty in 18 cases in which there was
disagreement.
So my sense is that the Attorney General has kept her
undertaking by making the calls on the basis of the record
before her and the very careful process that is followed in
these extraordinarily important cases that obviously need great
attention.
Senator Thurmond. The Attorney General has established a
formal Protocol that requires that a review committee at Main
Justice independently evaluate each case that is eligible for
the death penalty, and receives formal input from defense
counsel. As a former member of the review committee has
written, ``Federal prosecutors wishing to prosecute a death
penalty case must now consult with and suffer intense review by
Main Justice at the highest levels.''
The question is: do you think this procedure may have the
effect of discouraging some Federal prosecutors from seeking
the death penalty?
Mr. Robinson. It is my sense, Mr. Chair, that it does not.
I think everyone involved in this decision, investigators and
prosecutors, realizes that the ultimate decision as to whether
to seek the death penalty is a very different kind of decision
than any other a prosecutor can make. It has serious
consequences. The decision, to the extent the penalty is
carried out, is final, as final as any could be.
I think the process followed by the Department, which we
have tried to continue to improve upon, is to assure a sense of
uniformity in the approach and that these decisions receive
very careful scrutiny. But, nevertheless, as I indicated when I
appeared before the committee in my confirmation hearing, I
think in certain cases the death penalty is an appropriate
penalty.
The process is designed to see to it that the decision is
made fairly, but there should be no deterrence of Federal
prosecutors to seek the death penalty in appropriate cases. I
certainly haven't seen instances in which prosecutors have
indicated to me that they were disinclined because of the
process to seek the death penalty in appropriate cases. And I
think most people would expect there would be a very careful,
deliberative process in making this most important decision.
Senator Thurmond. Under the Protocol, the U.S. attorney
consults with the lawyer for the defendant before submitting a
case that is eligible for the death penalty to the Justice
Department for review. Then the defense lawyer has the
opportunity to make a formal presentation to the review
committee at Main Justice to try to convince it not to
recommend the death penalty.
The question is: do you think that most State prosecutors
provide for such formal involvement by the defense counsel
before the prosecutor decides whether to seek the death
penalty?
Mr. Robinson. I have to say I would be glad to try to get
an answer to that. I am not sure I could speak on behalf of all
of the States, or express full knowledge of what is done in the
various States throughout the United States. But I would expect
that every State that makes this kind of a decision would have
a process by which they would conduct a very careful review.
And because the Federal death penalty is relatively recent,
I think the sense is that we are entering into a process that
is new. For example, when I was a U.S. attorney 20 years ago,
obviously with a very few exceptions the death penalty was not
available. So this is a process the Justice Department wants to
approach by making this decision in a very careful way. I think
that is the intent and I think it is appropriate that we be
careful.
Senator Thurmond. Does the review committee hear from a
representative for the victim in the same manner as it hears
from the lawyer for the defendant? In other words, does the
victim side have the opportunity to make an argument to the
review committee just as the defendant does?
Mr. Robinson. I think the answer is no. Input is sought
from the victims, and appropriately so when Federal prosecutors
make this kind of a decision. But I don't believe that there is
a formal process where representatives of the victims actually
appear before the review committee. But I will double-check to
make sure that is the case, but I think the answer is no,
certainly not in the same way that this process applies to
defense counsel.
Senator Thurmond. Thank you.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman.
Mr. Robinson, thank you for being with us today. Although I
come at the issue from quite a different perspective, I am
pleased that the chairman has raised the issue of the death
penalty, and that is what I would like to ask you about during
my time.
I am a strong opponent of the death penalty. I believe it
is a form of cruel and unusual punishment, and I believe it is
wrong for a civil society to rely on such a harsh punishment no
matter what the gravity of the offense committed. I hope
someday we can join the majority of nations in the world that
have abolished the death penalty in law or in practice. In the
interim, however, it is vitally important that those States who
use the death penalty, as well as the Federal Government, do so
in a fair manner, free of even a hint of capriciousness or
arbitrariness.
So, Mr. Robinson, my first question is it is my
understanding that the Attorney General established a review
committee in 1995 to review and recommend whether she should
authorize a Federal prosecutor to seek the death penalty when a
death-eligible Federal crime is committed, and the chairman
already talked about that. This review apparently includes some
opportunity for defense counsel to argue against authorization
of the death penalty.
In an article dated June 14, 1999, entitled ``Who Lives,
Who Dies: DOJ Seeks Consistency in Capital Cases But Defense
Bar Cites Vagaries,'' the Legal Times discussed this process.
The Legal Times noted that since 1995, the number of cases
reviewed has skyrocketed from 28 in 1995 to 166 in 1998. With
the rise in the number of cases reviewed, Attorney General Reno
has also increased incrementally each year the number of cases
she has authorized for death penalty prosecution.
In 1998, the Attorney General authorized Justice Department
prosecutors to seek the death penalty for 44 of the 166 cases
brought before her, or 27 percent of the cases. Since 1998,
more than half of the federally authorized prosecutions in
which the death penalty has been sought have been against black
defendants and 75 percent against minorities.
Since 1995, however, the Justice Department appears to be
authorizing the death penalty against white defendants at a
higher rate than against minority defendants. From January 1995
to August 1998, the Attorney General authorized the death
penalty for 41 percent of the white defendants and only 23
percent of the minority defendants. This disparity may indicate
that the death penalty is being applied in an arbitrary and
capricious manner.
How do you explain these numbers and the disparity in the
race of persons who are subject to death penalty prosecution?
Mr. Robinson. Senator, the one thing I want to point out is
that the race of a death-eligible defendant in a capital case
is not made available to the capital review committee. I am not
suggesting they never learn of it, but intentionally that
information is withheld from the capital review committee.
There are situations in which that information comes to the
attention of members of the committee either because counsel
raises it or in situations in which racial animus is a specific
element of the case involved. But there is a conscious effort
to try to remove the issue of race from the case-specific
evaluation of whether or not in a particular case, given the
mitigating and aggravating circumstances present, the death
penalty is appropriate to seek on behalf of the Department of
Justice.
Senator Feingold. Let me ask you as a follow-up, have there
been any conversations within the Justice Department to address
this disparity in the application of the death penalty? Is this
something that is of concern to the Department?
Mr. Robinson. Well, there is no doubt that these issues are
appropriate to look at and appropriate to try to understand.
This has been a subject of concern in the sense of wanting to
be absolutely sure that any kinds of arbitrary factors are not
creeping their way into the decisionmaking process. It
certainly would be inappropriate for race or other arbitrary
factors to play any part in the decisionmaking process.
Senator Feingold. So in that spirit I do think it is vital,
and I am sure you agree, that we monitor and maintain data on
the application of the death penalty. I would like to know more
about the Federal death penalty authorization and prosecution
process, so I have a series of questions that I will submit to
you that ask for data on the number and race of the defendants
that have come before the Attorney General's review committee,
as well as the eventual outcome of the cases broken down by
U.S. attorney jurisdiction.
I will submit those questions and ask that you respond in
writing at your earliest convenience. They will include
questions, as I have indicated, having to do with the number
and race of the defendants who have come before the committee,
the eventual outcome of the cases, the number of death-eligible
crimes committed in each U.S. attorney's jurisdiction in which
U.S. attorneys have requested authorization to use the death
penalty, and so on. So I would submit those to you and ask for
a response later.
[The questions of Senator Feingold are located in the
appendix:]
Senator Feingold. What portion of the defendants before the
review committee--and this is something the chairman was
alluding to--are represented by defense counsel? And for those
that are not represented by counsel, why are they without
counsel?
Mr. Robinson. I would have to double-check. I would expect
in a death-eligible case it would be a very rare circumstance,
and I am not aware offhand of any of those that would be
appearing without any counsel at all, but I will double-check.
Senator Feingold. I would appreciate that, and you could
hopefully submit it with the other answers, or even perhaps
sooner.
On a follow-up on that, what is the Justice Department's
actual position on whether a defendant has a right to counsel
during the committee review process?
Mr. Robinson. When you say a right to counsel, obviously
they have a right to have counsel there. You are talking about
a right to be represented by counsel during that process. I
would be very surprised if they aren't represented by counsel,
and if the Senator is aware of situations that I am not
thinking of where somebody has gone through this process--this
is at the charging stage, this is early in the process. They
have a right, obviously, to counsel and would be represented by
counsel in any criminal proceeding.
Senator Feingold. Well, I am taking that answer as saying
that the Justice Department does believe that a defendant has a
right to counsel during the committee review process. If that
is not the case, I hope you will let me know right away.
Mr. Robinson. I certainly will get back to you.
Senator Feingold. Finally, I am going to shorten this, Mr.
Chairman, and ask to put the whole set of written questions in
the record. All I want to do is point out that there is a great
deal of activity around this country in State legislatures. In
some of the States, you would almost be surprised where this is
happening, calling for at least a moratorium on the death
penalty in a number of States, including the State of Illinois,
where a number of clear, almost tragic mistakes have been made
where it has become clear that certain individuals who were
under the death sentence could not have committed the crime and
they are now free, fortunately. I am afraid the same thing has
not happened in other cases.
So I will spare you all the verbiage, except to say what
effort, if any, has been made by the Justice Department to
review death row inmate cases and ensure that not a single
innocent person sits on Federal death row?
Mr. Robinson. I think it is a very legitimate concern and
we look at this very carefully, but I will get back to you on
the details of these matters. One of the things I did is to
make sure that the Capital Review Unit was made up of people
who are not only experienced in cases involving the death
penalty, but also approached the subject in a way that
appreciated the seriousness of death as a penalty, and that
this is not to be done without extraordinary care.
And it would be, I think, a nightmare for all of us to have
a Federal defendant put to death and for us to determine
conclusively later that that person did not commit the crime
for which he or she was executed. And I think that means that
everybody involved in the process has to be extraordinarily
careful to do everything we can to see to it that that doesn't
happen.
Senator Feingold. Thank you for your answers, and thank you
for your time, Mr. Chairman.
Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you. On that death penalty review
committee I would just observe, and I think you would agree,
that this is a non-statutory, non-required initiative of the
Attorney General to give heightened review to the procedures.
Mr. Robinson. That is true.
Senator Sessions. Traditionally, the prosecutor and the
grand jury who has to hear the indictment--and make no mistake,
grand juries take death penalty cases very seriously.
Mr. Robinson. No doubt about it.
Senator Sessions. That is where it is normally decided, but
she has taken an extra step.
With regard to these numbers, like 166 in 1998 and 44
approved, these 166 were those recommendations by the U.S.
attorney that the death penalty be sought?
Mr. Robinson. I think not. We will double-check, but all of
these death-eligible cases come up, and there are situations in
which the recommendations are not to seek the death penalty.
And in a number of those cases, the Attorney General has
decided notwithstanding the recommendation of the U.S. attorney
that the death penalty not be sought the Attorney General of
the United States has decided it should be sought.
Senator Sessions. Well, you know, you can go too far in
this matter to some degree. If the definition of who has to
undergo the death penalty charge and be taken to a jury for
it--and that is all we are talking about here--is totally to
the discretion of the Attorney General and her personal
theories about the matter, you do implicate the power of
Congress.
This Congress has passed a death penalty law. The President
of the United States says he supports the death penalty, and in
my observation has not criticized the matters which Congress
has set forth as appropriate for the death penalty. I think you
ought not to forget that it is not all totally up to the
Attorney General, and she ought not to arrogate to herself
total power to decide which cases go because the Congress has
said certain kinds of crimes require the death penalty, or are
appropriate.
Mr. Robinson. I understand your point, Senator, and I do
think that what is happening here is an effort to try to make
sure that the death penalty process is conducted in a uniform
way so that we don't have a situation where the Federal system
is attacked because there are wildly different approaches in 94
U.S. attorneys' offices.
You and I as former U.S. attorneys know how jealously U.S.
attorneys guard their prerogatives in this area. But I have not
found that U.S. attorneys who frankly are not anxious to have
Main Justice review many things--I haven't seen a concern on
their part about such review. Now, there has been appropriate
dialogue about making sure the process isn't unduly burdensome,
and those things we have been working on. And we will continue
to do so.
Senator Sessions. Enough said, I suppose, about it. I just
think that the law ought to be considered in this process to a
significant degree.
As I understood Senator Feingold's comments, he was
suggesting that from 1995 to 1998 a higher percentage of cases
were recommended for the death penalty for whites, 41 percent
to 23 for minorities, but that number changed this year. I
would just say to you--and I respect the Senator; he is
straight up front. He does not believe that the death penalty
is an appropriate penalty in America today. The Supreme Court
and the American people have not agreed with that for the most
part, but that is a legitimate view.
I would just say to you that I hope you are not driven by
numbers.
Mr. Robinson. I expect we should not be driven by numbers
at all. It would be inappropriate to be driven by numbers.
Senator Sessions. You may have a situation in one year in
which 44 cases come up and are approved and they are all of one
race. I hope that if each one met the Attorney General's
criteria, which I assume are fairly objective in many ways----
Mr. Robinson. Yes.
Senator Sessions [continuing]. That you would recommend the
death penalty and would stand before the world and say you did
it for race-neutral reasons based on justice and the facts of
the case.
Mr. Robinson. I share that view and I subscribe to it. It
ought to be based upon what ought to be done on the individual
case, regardless of race.
Senator Sessions. And the numbers are never going to
satisfy the people who don't believe in the death penalty. They
will always find numbers that are not perfectly consistent with
demography and we will have a fuss that it is unfairly applied.
I would just point out that the death penalty procedure now
requires two counsel be appointed for any person charged for a
death offense, one of which shall be experienced in capital
cases, and puts several other burdens.
Back on the prosecution of gun cases, can you tell me what
action you have taken, if any, subsequent to the President's
radio address this spring in which he directed the Secretary of
the Treasury and the Attorney General to improve the handling
of these cases? Increase prosecution of criminals, I believe is
what he said.
Mr. Robinson. What was the date of the radio address? I
didn't catch it.
Senator Sessions. March 19.
Mr. Robinson. In June, the Secretary of the Treasury and
the Attorney General sent a memorandum to all U.S. attorneys
and special agents-in-charge at ATF on the development of an
integrated firearms violence reduction strategy, and I think it
is directly related, Senator, to this.
And I have to say we did speak about this during my
confirmation process. I have inquired into this matter
carefully because I know the Senator is very concerned about
this issue and believes strongly in the subject of Federal
enforcement of firearms statutes particularly with regard to
violent criminals. And so I have been looking into that issue,
as I said I would. I have looked at the numbers.
I think you are right in terms of the fact that there are
fewer firearms prosecutions from 1992 to today. And these
numbers, I think, come out of the U.S. attorneys' statistics. I
think that you could quarrel a little here and there with the
numbers, but not the trend, and I wouldn't take issue with
that.
I have talked to the career prosecutors in the Criminal
Division that were involved in the evolution of the Triggerlock
project and the continuation of that, and particularly with
regard to the current approach that is being taken by the
Department. I know that it is one that you don't agree with
entirely, and I would just say the following things about this
and these are things you have heard before, I know.
I think a combination of the fact that the 1994 violent
crime initiative expanded the Department's work in the area of
violent crimes beyond guns to gang-related violence and the
continuing evolution--something that I know that you agreed
with as U.S. attorney--of trying to work cooperatively with
State and local law enforcement, has produced some rather good
results. And I understand your position that they could be even
better and the notion of continuous improvement is appropriate.
But as I understand it, as of 1996, when you combine
Federal, State and local efforts in this area, there are 22
percent more criminals incarcerated on Federal and State
weapons offenses than there had been before, which means the
States are doing a better job. And we are trying to work
cooperatively with them. In addition to efforts like Project
Exile, I think you will see that people are being encouraged to
use best practices in their individual judicial districts.
Also, the number of Federal offenders serving sentences of
5 years or more in the Federal system is up 25 percent since
1992. There is another important factor--and I am not
suggesting that the Justice Department is entitled to take
credit for it. It is a combined issue of demographics and a lot
of hard work by Federal, State and local law enforcement. But
the fact is that we have had a 27-percent decline in violent
crimes committed with guns between 1992 and 1997 and that the
homicide rate is at a 30-year low, is encouraging, but doesn't
mean we can be complacent.
The Senator has made a contribution by keeping the Justice
Department and the rest of Federal and State law enforcement
focused on the need to concentrate our efforts. And we can do
more. I think the Senator's efforts in this area continue to
remind us that we need to be looking at these numbers, looking
at ways to do a better job, such as encouraging U.S. attorneys
to diagnose these problems and take a look at the laws in their
own jurisdictions and work out solutions so that serious cases
involving violence, involving guns, do not fall between the
cracks.
So my sense is that the current balance is working well,
and I haven't sensed in the people that I have talked to in our
Terrorism and Violent Crimes section and others who have been
involved in Triggerlock all along, are uncomfortable with this
mix. But that doesn't mean that it isn't appropriate to ask
ourselves whether we can do a better job. I understand the
Senator's views and I think they are appropriate to continue to
remind us of the need to do better.
Senator Sessions. Well, I know the time is out, but I know
the U.S. attorney and the chief of police in Richmond who
testified believe that enhanced prosecutions of Federal gun
violations in Richmond substantially reduced the violent crime
rate. The murder rate went down 40 percent, and I believe that
could be replicated around the country.
The Federal Government has the ability to detain people
prior to trial with criminal records better than most States.
They have a prompt trial within 70 days. There is certain
punishment if the defendant is found guilty. Police appreciate
it and I think it does work. And I think there are people not
alive today because we haven't used it aggressively enough.
People like Senator Schumer are most eloquent in asking for
more and more gun laws, but I am asking what about the ones we
have got?
Thank you, Mr. Chairman.
Senator Thurmond. Thank you, Senator.
Mr. Robinson. Thank you, Senator.
Senator Thurmond. Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, Mr. Chairman, I think the Senator from
Alabama will probably not be overly surprised to know that much
of what he said I agree with. I feel if we are going to put
these gun laws on the books, then let's enforce them. I
understand the U.S. attorneys may determine, a lot of them,
that they would rather the local prosecutors do it. But if some
of these are going to be Federal laws, I think we ought to
prosecute them, and we ought to prosecute them effectively and
strongly.
I find it very difficult to understand why somebody who has
had three or four prior felonies, and each one involving a
weapon, why they are still walking on the street, somebody who
has had three or four prior felonies and they go in to buy a
gun, why they are not nailed for that. Just as I find sometimes
local police departments round up people and confiscate their
guns; they have all got felonies and nothing happens to them.
So the Senator from Alabama and I are not too far apart on this
issue.
I would note, though, on another issue, the death penalty,
first, I come from a State that does not have the death
penalty. We don't have many gun laws either. We don't have much
crime. Maybe they are all related. I am not sure. We do have
one gun law. During deer season, if you are using a semi-
automatic rifle, you are limited to the number of rounds you
can have in the weapon because the deer should be given some
kind of a chance. Other than that, just about anybody can carry
a loaded concealed weapon. We don't have any permit process, so
there are no permits. We do have laws, of course, on the sale
of firearms.
But we also found long ago that we did away with the death
penalty because in most instances it was not a deterrent.
Perhaps in some rare ones, but most murders tend to be family
murders or people who know each other. We found it was not a
deterrent, but we also had a concern that the wrong person
might get picked up.
Since 1976, when capital punishment was reinstated, we have
had 558 people executed. During that same time, 80 people who
were on death row who had been sentenced to death and who were
about to be executed were suddenly found innocent and set free.
For every seven executions, they found somewhere somebody who
had been convicted through the whole system was a mistake. That
is three innocent people sentenced to death each year.
In the first half of 1999, seven innocent capital prisoners
have been released from death row after they spent a combined
total of 61 years on death row. Randall Dale Adams might have
been routinely executed if his case had not attracted the
attention of a film maker, Earl Morris. The movie ``The Thin
Blue Line'' shredded the prosecution's case and cast the
national spotlight on Adams' innocence.
But probably a better case is Anthony Porter. He spent 16
years on death row, 16 years waiting for execution. In 1998, he
came within 2 days of execution. He got cleared, not by the
criminal justice system doing its job, but by a class of
undergraduate journalism students at Northwestern University
who took it on as a class assignment. We are finding now with
DNA more and more people saying, I wasn't the guy there. And it
turns out, guess what? They weren't the guy there. So I would
hope that you would supply for the record just what steps are
taken to make sure we don't get the wrong person.
I would also like you to look at what the Supreme Court has
said about the extent to which crime-fighting can be conducted
at the Federal rather than the State or local level. I know
that some of my colleagues have worried about the Supreme Court
being activist, and I assume they meant Chief Rehnquist and
Justice Scalia and Justice Thomas and some of the others who
have given the States carte blanche to violate Federal patent
and trademark laws. They have made it impossible for State
employees to enforce their federally protected right to get
paid for overtime work. I assume that is what my Republican
colleagues meant about this activist Supreme Court. So I would
hope we are going to work closely together to make sure we have
legislation that will survive Supreme Court scrutiny.
I am going to have some questions I will submit to you
about CALEA. CALEA has been implemented at an extremely slow
pace. The Department of Justice issued its final notice of
capacity requirements over 2 years late. The FBI has dragged
its feet and delayed it even further by challenging before the
FCC the sufficiency of an industry-adopted standard for
compliance with the law.
As one who helped write that law, I am concerned that
implementation of CALEA has been subverted. We tried to
maintain a balance among privacy rights, law enforcement
interests, and innovation in the telecommunications industry.
Now, we find the costs soaring and we find that suddenly the
FBI has decided they want a lot more than anybody ever intended
them to have. I want to know what the Justice Department is
doing on that.
There are a number of pieces of legislation and I want to
know whether you will work with me on those. Again, I will put
that in the record.
[The prepared statement of Senator Patrick Leahy follows:]
Prepared Statement of Senator Patrick Leahy
This is the first occasion, since we held a hearing on the
nomination of Jim Robinson to head the Criminal Division in April 1998,
to hear directly from him. This hearing is long overdue, and I commend
the Chairman and Ranking Member of the Subcommittee for focusing our
attention on how the Criminal Division is handling a number of issues
critical to enforcement of our federal criminal laws.
federalism
As we consider federal law enforcement issues, we must be cognizant
that the Supreme Court has launched a cautionary shot across our bow
about the extent to which crime fighting may be conducted at the
federal, rather than the state or local, level. This year's crop of
state's rights decisions continues what many consider the Court's
activist efforts to whittle down the legitimate authority of the
federal government. In 1995, for the first time in more than half a
century, the Court invalidated a federal law as beyond the Commerce
Clause, involving children and guns in our schools. This year, the
Court gave the states carte blanche to violate federal patent and
trademark laws, and made it impossible for state employees to enforce
their federally-protected right to get paid for overtime work.
The maintenance of state sovereignty is a matter of great
importance. For this reason, I have been critical of the increasing
intrusion of federal regulation into areas traditionally reserved to
the states. But it is one thing to say that Congress should forbear
from interfering in areas that are adequately regulated by the states;
it is quite another thing to say that Congress may not exercise its
constitutional authority to enact legislation in the national interest.
We are in danger of becoming the incredible shrinking Congress, and
not to preserve legitimate local autonomy, but instead on the altar of
a strange abstraction of ``state dignity.'' As we work together to
produce effective national legislation to combat crime, we will have to
work even harder to ensure the legislation will survive Supreme Court
scrutiny as a proper exercise of congressional power.
digital telephony law implementation
As the primary Senate sponsor in 1994 of the Communications
Assistance for Law Enforcement Act (CALEA), I have been disappointed
with the pace at which this important law has been implemented. For
example, the Department of Justice issued its final notice of capacity
more than two years late. This delay produced additional delays in the
ability of telecommunications carriers to achieve compliance with the
four capability assistance requirements established in CALEA.
The FBI has also challenged before the Federal Communications
Commission the sufficiency of an interim standard adopted in December
1997 by the industry for wireline, cellular and broadband PCS carriers
to comply with the capability assistance requirements. The FBI wants
additional surveillance functions built into our telecommunications
system. For example, the FBI wants access to mobile phone location
information, to credit card and banking information transmitted over
phone lines under a low standard, the ability to eavesdrop on
conference calls when the persons named in the court order are not on
the call, and so on. I have been concerned that those additional
surveillance functions raise significant privacy interests and are
being demanded by law enforcement without any regard to the cost.
Uncertainty over the outcome of the disputed industry-adopted
standard has resulted in further delays in developing technical
solutions that would bring our carriers into compliance. Indeed, the
FCC was compelled to extend the compliance date of the law by almost
two years, until June 30, 2000. Moreover, concerns over the costs of
the FBI demands have prompted the House of Representatives to pass on
two occasions legislation that would extend the so-called ``grandfather
date'' under CALEA and make the government responsible for bearing more
of the costs of CALEA compliance. The most recent version of this
legislation, H.R. 916, passed the House on July 13, 1999, and extends
the ``grandfather'' date from January 1, 1995, for five years until
June 30, 2000.
In short, implementation of CALEA has been subverted: The balance
we tried to maintain in CALEA among privacy rights, law enforcement
interests and innovation in the telecommunications industry is being
threatened, compliance with the law is being delayed, and the costs
continue to soar. I want to hear what Assistant Attorney General
Robinson is doing about this situation.
e-rights act, s. 854
I introduced privacy legislation earlier in this session to clarify
the standards and procedures governing when law enforcement may use the
surveillance capabilities the FBI is seeking from the FCC. For example,
my bill would require a probable-cause court order before the FBI is
authorized to use a cellular phone as a tracking device. The E-RIGHTS
bill would also require the FBI to obtain court approval before
eavesdropping on a conference call of persons not named in a wiretap
order. This bill contains a number of other reasonable provisions
designed to restore and protect our privacy rights in our phone, fax
and computer communications. I want to hear whether Assistant Attorney
General Robinson is willing to work with me in this important area--
which will become even more critical should the FBI be granted by the
FCC all the additional surveillance capabilities it has requested.
senior safety act, s. 751
Seniors are the most rapidly growing sector of our society. It is
an ugly fact that crimes against seniors are a significant problem. To
address the unyielding rate of crimes against seniors, in March I
introduced S. 751, the Seniors Safety Act, to provide a new safety net
of laws to combat these crimes. This is a comprehensive bill that
addresses the crimes to which seniors are most vulnerable--from
combating health care fraud and abuse and protecting nursing home
residents to safeguarding pension and employee benefit plans from
fraud, bribery and graft.
I know that the Administration has been working on its own
legislative proposals in this area, including provisions to allow the
use of administrative subpoenas for access to health records for fraud
investigations. My legislation would authorize the use of such
subpoenas but under circumstances that would protect against the
further disclosure of personally identifiable health records. The
Administration's draft proposal does not have any such protections
included. As this legislation moves forward, I would hope that the
Department, and the Criminal Division in particular, will find common
ground on authorizing reasonable standards for access, use and
disclosure by law enforcement of personally identifiable medical
records in ways that do not hinder fraud investigations, but also in
ways that ensure these records are accorded privacy protection.
death penalty cases
People of good conscience can and will disagree on the morality of
the death penalty. But I am confident that we can all agree that a
system that sentences one innocent person to death for every seven that
it executes has no place in a civilized society, much less in 21st
Century America.
Yet that is what the American system of capital punishment may have
done for the last 23 years. A total of 558 people have been executed
since the reinstatement of capital punishment in 1976. During the same
time, 80 death row inmates have been found innocent and set free. That
is one exoneration for every seven executions. That signifies that more
than three innocent people are sentenced to death each year. The
phenomenon is not confined to just a few states; the 80 exonerations
since 1976 span more than 20 different States. And the rate seems to be
increasing: In the first half of 1999, seven innocent capital prisoners
have been released from death row, having spent a combined 61 years on
death row.
This would be disturbing, if their eventual exoneration was the
product of reliable and consistent checks in our legal system. It might
be comprehensible, though not acceptable, if we as a society lacked
effective and relatively inexpensive means to make capital punishment
more reliable. But many of the freed men owe their lives to fortuity
and private heroism, having been denied common-sense procedural rights
and inexpensive scientific testing opportunities. Consider the case of
Randall Dale Adams, who might have been routinely executed had his case
not attracted the attention of a filmmaker, Earl Morris. His movie, The
Thin Blue Line, shredded the prosecution's case and cast a national
spotlight on Adams' innocence. Consider the case of Anthony Porter, who
spent 16 years on death row and came within two days of execution in
1998; he was cleared this year by a class of undergraduate journalism
students at Northwestern University. Now consider the cases of the
unknown and unlucky, whom we may never hear about.
By reexamining capital punishment in light of recent exonerations,
we can enact provisions to reduce the danger that people will be
executed for crimes they did not commit, while increasing the
probability that the guilty will be brought to justice. We can also
help to ensure that the death penalty is not imposed arbitrarily or out
of ignorance or prejudice. I would hope that the Department of Justice
would join me in developing legislation to reduce the risk of mistaken
executions.
anti-atrocity alien deportation act, s. 1375
The recent events in Kosovo have been a graphic reminder that
crimes against humanity did not end with the Second World War.
Unfortunately, war criminals who wielded machetes and guns against
innocent civilians in countries like Haiti, Yugoslavia and Rwanda have
been able to gain entry to the United States through the same doors
that we have opened to deserving refugees. Once these war criminals
slip through the immigration nets, they often remain in the United
States, unpunished for their crimes.
We need to lock our door to those war criminals who seek a safe
haven in the United States; and to those war criminals who are already
here, we should promptly show them the door out.
Senator Kohl and I recently introduced S. 1375, ``The Anti-Atrocity
Alien Deportation Act,'' to close loopholes in current law to
accomplish this task. The Act would (1) bar admission into the United
States and authorize the deportation of aliens who have engaged in acts
of torture abroad; (2) provide statutory authorization for and expand
the jurisdiction of the Department of Justice's specialized Office of
Special Investigations (OSI) to investigate, prosecute and remove any
alien who participated in torture and genocide abroad--not just Nazis;
and (3) authorize additional funding to ensure that OSI has adequate
resources to fulfill its current mission of hunting Nazi war criminals.
Little is being done about the new generation of international war
criminals living among us, and these delays are costly. As any
prosecutor knows, such delays make documentary and testimonial evidence
more difficult to obtain. Stale cases are the hardest to make.
This is one of the mistakes we made with Nazi war criminals:
waiting for more than 30 years after the end of World War II before
creating OSI within the Criminal Division to hunt for Nazi war
criminals. Let us not repeat the mistake we made with Nazi war
criminals of waiting decades before tracking down those war criminals
who settled in this country. I invite the Department of Justice to work
with me as this legislation moves through Committee to make any
refinements necessary to address this problem.
computer crime enforcement act, s. 1314
I recently introduced this legislation to establish a Department of
Justice grant program to support state and local law enforcement
officers and prosecutors to prevent, investigate and prosecute computer
crime. Senator DeWine, with whom I worked closely and successfully last
year on the Crime Identification Technology Act, and Senator Robb, who
has long been a leader on law enforcement issues, also support the bill
as original cosponsors.
Computer crime is quickly emerging as one of today's top challenges
for state and local law enforcement officials. A recent survey by the
FBI and the Computer Security Institute found that 62 percent of
information security professionals reported computer security breaches
in the past year. These breaches in computer security resulted in
financial losses of more than $120 million from fraud, theft of
proprietary information, sabotage, computer viruses and stolen laptops.
Computer crime has become a multi-billion dollar problem. I invite the
Department of Justice to work with me and my colleagues to provide our
crime-fighting partners in the States with the resources necessary to
combat computer crime.
crime victims assistance act, s. 934
Finally, I note that the Senate remains in neutral when it comes to
providing greater protection and assistance to victims of crime. For
the last several years, I have sponsored comprehensive legislation on
this important matter with Senator Kennedy. Others in the Senate are
insistent on consideration of a proposed constitutional amendment
first. We can make significant improvements now, without delay. I will
be interested to hear from the Assistant Attorney-General about what
the Department is doing to protect the rights and dignity of victims of
crime.
These are just a few of the important criminal justice issues
confronting us today. I look forward to hearing from Mr. Robinson about
his views on these and other issues.
[The questions of Senator Leahy are located in the
appendix:]
Senator Leahy. I would ask you this question. I recently
introduced S. 1375, a bill that would bar admission into the
United States and authorize the deportation of aliens who have
engaged in acts of torture abroad. S. 1375 would expand the
jurisdiction of OSI, the Office of Special Investigations, to
investigate and prosecute and remove any alien who participated
in torture and genocide abroad, as we have with those from the
Holocaust.
But now we find that genocide and these types of war crimes
go on, whether it is in Rwanda, Central America, Bosnia and
elsewhere. And then these people who commit the crimes, some of
them, come and hope they can hide in a nation of 250 million
people and utilize our laws. We owe the Department of Justice
support for the expansion of OSI so we can go after these war
criminals.
Mr. Robinson. I saw the article actually in the Legal Times
today--I don't know if you have seen it yet--on your
legislation, and we will be happy to look at it. I obviously
support the work of the Office of Special Investigations in the
Criminal Division.
Senator Leahy. As do we all.
Mr. Robinson. When I was U.S. attorney, that Unit was
created by then Attorney General Civiletti and one of the early
important cases was in the Eastern District of Michigan. So we
will be happy to take a look at that, Senator.
Senator Leahy. Well, look carefully.
Mr. Robinson. We will look carefully.
Senator Leahy. I think it is long overdo.
Mr. Chairman, I am delighted to have a chance to be here. I
am delighted to have a chance to discuss what some of you have
said has been an activist Supreme Court, and to talk about
Vermont. Of course, Mr. Chairman, you are always welcome to
come there. Even Senator Schumer is welcome to come any time he
wants.
Senator Thurmond. Thank you very much.
Senator Leahy. Thank you, and we will get simultaneous
translation for either one of you guys if you come.
Senator Thurmond. Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman, and I thank
you for holding this hearing which is part of our job of
oversight. And I thank Senator Leahy for gracing us with his
presence. It is always good to see Senator Leahy whether it is
in Washington, DC, New York State, or Vermont. But it is
usually in Vermont that I see him and he is always talking
about Vermont, which is great.
My questions are these. First, I know Mr. Sessions talked
about gun prosecutions, which I want to talk about in a minute,
but I would just make two points. The two are not mutually
exclusive. Tightening the laws on controls and enforcing the
existing laws are not inconsistent. I know that some people
want to say it is an either/or situation.
I remember in the House when I was a leader on gun control
I sort of confounded many of the people on the other side
because they said, well, you are not tough on crime. And that
was not my position. I am a strong advocate for gun control. I
also have supported punishment--three strikes and you are out,
capital punishment, things like that. And they always get in a
tizzy about me because they used to go after the gun control
advocates saying, well, you are not for punishing people, just
for taking the guns away. I happen to be for both.
One of the things I would say--I am sorry my colleague from
Alabama isn't here--you know, they say, well, we have plenty of
laws on the books. Well, many of the pro-gun advocates make
sure that those laws are so riddled with loopholes that they
don't work. The one that is most notorious is the Brady law
which required a background check. The NRA worked hard to put
in a loophole on gun shows. Now, we are here coming to gun
shows.
Every time they try to make sure the law doesn't work and
then they say, see, it didn't work. So I will leave that at
that and I will continue the conversation with my good friend
from Alabama. I don't agree with him on this issue, but I
appreciate his considerateness and his steadfastness on the
issue.
My question is this on gun prosecutions. As you know, I
have been a strong supporter of Project Exile which I think has
done a very good job, and a lot of the spade work for it
occurred in my State of New York, particularly in the Western
District over in Rochester and in Buffalo. One of the issues in
Project Exile is whether gun prosecutions should be brought in
Federal or State court, and there are a whole bunch of sub-
issues that make that decision, where the sentences are longer,
where the Federal prosecutors have the resources to play a
prominent role, the opportunity costs.
Those are important questions, but there is one point that
is sort of left out and that is the fact that some firearms
offenders have moved through county and State jails many times
before their latest firearms offense. They know the system,
they know the jail crowd. Their buddies are there. It is almost
as if the county and State criminal justice systems are a
second home for these individuals, particularly when they get
shorter sentences.
In Rochester, NY, Exile means Federal prosecution and
incarceration in a far-away Federal facility or a far-away
county facility under Federal contract. The repeat offenders
under Exile no longer know the ins and outs of the system.
Their relatives can't visit them that easily. The consequences
for a gun crime become truly life-changing for the offender.
I would just ask your opinion, Mr. Robinson, about this
often ignored aspect of Federal firearms prosecution projects.
Mr. Robinson. I think your point is well taken, Senator,
and I think every U.S. attorney ought to be sitting down with
his or her State attorney general and county prosecutors, and
those individuals ought to be identified for the strictest
possible treatment, whether it is in the Federal system or the
State system. And because of the debate in this area, we are
now seeing that there are States that have tough sentences.
But what we hope will happen, and I think should continue
to happen and has been happening is that every judicial
district, every U.S. attorney, ought to be sitting down and
carefully targeting in his or her own district, often on a
community-by-community basis, what it needs to get at the
problem of gun violence in America.
So I think those kinds of considerations ought to be
brought right down to the communities and to the districts, and
U.S. attorneys ought to be encouraged to take those cases and
to work with State and local prosecutors to see to it that that
kind of syndrome that you describe does not repeat itself.
Senator Schumer. And could we get some assurance from
Justice that you will pass the word out on this issue to the
U.S. attorneys throughout the country, those in jurisdictions
with Project Exile that is ongoing? As you know, in this
budget, in the Commerce-Justice-State budget, Exile was
expanded rather significantly.
Mr. Robinson. I do understand that, and we do think that
this ought to be a matter of discretion within the U.S.
attorneys. But I think the objectives are--I think we all agree
on the objective, which is to get the job done in
identification, prosecution, and putting people away who are
engaged in gun violence activities, all kinds of serious
violent activities. But guns are a serious problem and we
understand that.
Senator Schumer. OK, thanks. Next is on cyber crime and
cyber terrorism, something I have become concerned about in
recent years because of the vulnerability of our computer
networks to attack. We worry a lot about bombs, biochemical
weapons of mass destruction. Computer terrorism can be just as
deadly because our critical infrastructures are almost entirely
computer-dependent.
We are hearing almost daily of hacking incidents into a
military or government system. Just yesterday, the newspapers
reported on security flaws that have been discovered in the
UNIX operating system, and that is the most common operating
system used by servers on the Internet. So I believe that this
effort to fight cyber crime and cyber terrorism ought to be one
of the Justice Department's highest priorities, and so I have a
few questions in this regard.
First, I understand that the people in the Computer Crimes
Section work very hard. I have tremendous respect for them. But
are there enough prosecutors assigned to that Section, and are
those prosecutors getting the technical support they need to
accomplish their mission?
Mr. Robinson. There is no question that you are absolutely
right about the concern that we ought to have for the future in
the area of cyber terrorism and cyber crime. The Computer Crime
and Intellectual Property Section, as you know, was created
relatively recently, in 1996, and I can say that the people of
the United States, and the Justice Department in particular,
are blessed to have some of the brightest, most able Federal
prosecutors in this area.
The chief of the Computer Crime Section is an outstanding
individual who could walk out the door tomorrow and quadruple
his income, I am sure. And we have dedicated people working
very hard. Can we use more? Yes. We are trying actually within
our own resources to move people into that area. Increasingly,
that Section gets called upon by all the other sections in the
Criminal Division and in the field.
The Section has designated computer and telecommunications
coordinators in every U.S. attorney's office. We are trying to
get the word out and provide training for investigators and
prosecutors. This is where the wave of the future is in terms
of the threat to our national security and the threat to crime
activities generally. So you are right on the money. We know
that we have got to really put the resources into this field
and so we are working hard to try to get that done.
Senator Schumer. Next question: do you think sentences for
computer crimes need to be enhanced?
Mr. Robinson. Yes, and there are a variety of things that
we can provide some additional detail on. One that occurs to me
offhand is in the intellectual property area, but there are a
few others in which it might be appropriate. We certainly don't
want things falling between the cracks because laws that were
created before the avalanche of this new technology may not
have been thinking about some of these issues. We need to stay
on top of those as well.
Senator Schumer. Finally, because so many of these crimes
are being committed by younger and younger people who may not
even be aware that they are crimes--they may think, oh, this is
fun or something like that, I don't know what--is the
Department doing any outreach to inform juveniles of the
consequences of computer crime?
Mr. Robinson. I think there are some efforts afoot, but
probably there should be more. We have some of these problems
we see with juveniles who are playing around. But we are trying
to get the message out by the swift investigation and
prosecution of those cases, some even involving juveniles, that
this is not an area you can play around with and get away with
it.
Senator Schumer. And one final question, Mr. Chairman--I
see my time is up.
Senator Thurmond. Go ahead.
Senator Schumer. Thank you, Mr. Chairman.
Just on biological terrorism, another real threat
particularly in heavily populated areas such as New York City,
my question is that since a biological attack would require
unprecedented coordination between the medical establishment,
local and State law enforcement and Federal authorities, what
is Justice doing on this front?
Secretary of Defense Cohen has said the question is not if,
but when a biological attack will occur. I want to make sure
that your Department and other agencies are doing all they can
to prepare for such an incident.
Mr. Robinson. We would be glad to provide greater detail,
but you are absolutely right that this is something that there
needs to be an interagency approach to. I have been involved in
serious meetings and planning in this area. We have got plans
in the works and protocols to deal with this, but obviously we
have got to do everything we can. I will be glad to assimilate
the material we have that can be made available to you and get
those to you, Senator.
Senator Schumer. Thank you, Mr. Chairman. Thank you, Mr.
Robinson.
Senator Thurmond. I would like to turn to 18 U.S.C. 3501,
the law that the Congress passed to govern the admissibility of
confessions in Federal court after the Miranda v. Arizona
decision.
During an oversight hearing in 1997, Attorney General Reno
informed the committee that she would apply section 3501 in an
appropriate case. In United States v. Dickerson, in the Fourth
Circuit, the trial court found that the defendant had
voluntarily confessed his crime but that the Miranda warnings
were not read to him beforehand.
Why was Dickerson not an appropriate case for the Justice
Department to raise section 3501?
Mr. Robinson. This is another area I anticipated you might
want to get into. Although I didn't testify at your hearing, I
did submit a statement before the subcommittee in connection
with this issue on the May 13 hearing which explained what the
position of the Department is and has been with regard to 3501
and Dickerson.
Miranda v. Arizona was decided in my first year of law
school, 1966, and when I graduated from law school in 1968, 18
U.S.C. 3501 was passed. So I find it not only interesting, but
also very momentous to be in a situation in which we have the
very serious possibility that the U.S. Supreme Court will, in
the context of Dickerson, if certiorari is applied for and
granted--and our response to the application, I think, is
currently pending--that this issue may then be a situation in
which we would be before the Supreme Court.
As I said during my confirmation hearing, this is an issue
that I think is a very important one for us to look at
carefully, particularly in this context that we find ourselves
in at the moment. I can explain briefly the reason why the
Department has taken the position that it has. It is set out in
my statement that was submitted for the hearing, and that
simply is that in a situation in which Miranda v. Arizona has
not yet been overruled by the U.S. Supreme Court, there is an
apparent conflict between Miranda v. Arizona and 18 U.S.C.
3501. The issue obviously presented is whether Miranda is
constitutionally based.
And if it is, is it predicated on the Supreme Court's
determination that the Miranda warnings are compelled by the
reading of the Supreme Court of the U.S. Constitution. To the
extent that 18 U.S.C. 3501 conflicts with Miranda v. Arizona,
we find ourselves in a situation in which under Supreme Court
law you cannot lightly assume that the U.S. Supreme Court
decision which has not been overruled is no longer good law.
So the Department has taken the position, as it did in
Dickerson, that it has been inappropriate to do that. By a 2 to
1 decision of the court of appeals in Dickerson, two judges had
a different view, and en banc the court of appeals let that
decision stand. So it appears that there will be an opportunity
to address that issue, and I think that the way in which this
issue is now teed up provides an opportunity for the Justice
Department, in the context of the position it takes in response
to the petition for certiorari and then, if granted, in the
briefs to be filed in the U.S. Supreme Court, to determine
whether there ought to be an effort to deal with Miranda in a
way different than the way it has been dealt with until now.
The U.S. Supreme Court undoubtedly has the capacity to
change Miranda v. Arizona to agree with the principles that are
enunciated in 3501 and could do that.
If the Supreme Court were to say that the Miranda warnings
are simply prophylactic rules not compelled by the
Constitution, then 3501 could, be constitutional and we could,
in fact, reinstate ourselves to a pre-Miranda situation.
But I think there will be an opportunity to address this.
We are looking hard at the whole question in terms of making a
recommendation to the Solicitor General, who has the final say,
subject to the Attorney General, on what the Department's
position is on this. But we are looking at it hard, and frankly
we are looking at all the alternatives as to what the
Department's position should be and whether Miranda v. Arizona
ought somehow to be modified.
That is an ongoing process. Ever since Dickerson was
decided, we have been gathering the appropriate information and
having those issues carefully examined. The big problem is that
as long as the U.S. Supreme Court continues to apply Miranda v.
Arizona to the States, and could only do that if it is
constitutionally based, we have ourselves in a situation in
which I am not sure a congressional enactment can trump a
decision on constitutional law by the U.S. Supreme Court.
That is an issue we discussed when we were here before, but
that argument may actually not be the key issue if the Supreme
Court grants cert in the Dickerson case because the Court then
will have an opportunity to say exactly what the current state
of the law is and what the majority of the Court currently
feels on the subject of whether the exclusionary rule should
apply in situations where the warnings were not given.
So we are looking at it and we don't have a predetermined
position. Of course, I couldn't speak for the Solicitor General
in any event, but we will be making recommendations to the
Solicitor General on the Criminal Division's view. We are
consulting with U.S. attorneys and trying to get the view of
law enforcement because we have two decisions to make, a policy
decision and a legal decision, and that process is ongoing as
we speak.
Senator Thurmond. The executive branch has a constitutional
duty to faithfully execute the laws, and I understand that the
traditional policy of the Justice Department is that it will
defend laws of the Congress as long as a reasonable argument
can be made that they are constitutional.
Regardless of one's views about the constitutionally of
3501, the Fourth Circuit has upheld the statute in Dickerson
and the Tenth Circuit has upheld it in United States v.
Crocker. No circuit has directly held section 3501 to be
unconstitutional. In this situation, why does the Department
not have a duty to defend section 3501 before the lower Federal
courts?
Mr. Robinson. Well, I think the question is the Department,
as Congress has an obligation to follow the law of the land as
articulated with regard to the Constitution by the U.S. Supreme
Court. And I think the position that has been taken in these
cases that have been articulated in the testimony that I
submitted previously has been that as long as the U.S. Supreme
Court has not seen fit to overrule Miranda v. Arizona in any
case that the Department has to follow the last word of the
U.S. Supreme Court.
And as was indicated in the Felton case in 1997, the lower
Federal courts, and this has been the Department's position
have an obligation to follow the teachings of the U.S. Supreme
Court.
But the issue is the exact position that the Solicitor
General will take on 3501, and the principles that underlie
3501, and that is the question of whether or not there ought to
be an exclusionary rule for Miranda violations. The Supreme
Court can certainly change that rule and they could do it in
the context of the Dickerson case.
I think we have an obligation to approach this issue from
the point of view of what is best for law enforcement, and that
is the way I feel about it in terms of the Criminal Division.
We are certainly going to be articulating the law enforcement
perspective on what the Department's position ought to be on
this issue as we review it in this context now that we have a
specific case that tees it up.
Senator Thurmond. It is important the Senate learn as soon
as possible what the position of the Department will be in
Dickerson. If the Supreme Court hears the Dickerson case, the
Senate should defend the law if the administration will not.
Will you cooperate with this committee so that Senate Legal
Counsel will have the opportunity to defend section 3501 before
the Supreme Court if the administration will not?
Mr. Robinson. Speaking on my own behalf, and I can only go
as high as the second floor, I would say the answer is
absolutely yes. We will cooperate with this committee with
regard to obviously keeping the committee advised as we can
when that determination is made, and I think in plenty of time
for there to be an opportunity if the Senate feels it needs to
take a different view because it is not satisfied. We would be
glad to keep the Senate advised of that, Senator.
Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman, for raising that
issue. It has always been completely circular, the logic of the
Department of Justice on this matter. When you say the lower
courts have a duty to follow the Supreme Court and Miranda and
the Department will never take up 3501 and the voluntariness
position, unless the Court, as in this case, really just on its
own motion takes it up, it doesn't get up. Isn't that correct?
Mr. Robinson. Well, it could come up any minute in the
context of a State case, obviously, because----
Senator Sessions. Well, there is a case out of Virginia--is
that Dickerson--that you all refused to argue the issue on?
Mr. Robinson. The consistent position of the Department has
been that at least in recent years--and my understanding is
that there have been over the years some efforts to address
this issue in various administrations--has been that we are
bound by Miranda, that district judges and courts of appeals
cannot overrule Miranda. We think, frankly, Dickerson on the
face of it was incorrectly decided as a matter of
constitutional law. That is the Solicitor General's position.
Senator Sessions. This is through the looking glass land,
really. I mean, the Supreme Court in Miranda said it was
prophylactic; it was not constitutionally mandated. The
Congress comes along with a voluntariness exception and you
won't even defend it, and the Court is going to have to on its
own, apparently. I don't think there is any need to argue about
it. I don't think it is a matter of law; it is a matter of
policy.
The Attorney General's policy is not to take this matter
up, not to enforce 3501. And I am glad the chairman raised it
and I think this Congress is going to have to intervene, or
somebody will, if the Department won't argue the case.
Mr. Robinson. Senator, we are going to have an opportunity
to address this very issue and there is no getting around it
even if somebody wanted to. The Dickerson case presents this
squarely and the Criminal Division is going to make a
recommendation to the Solicitor General. We are looking at it
with an open mind with regard to what position--I wasn't here
before, but we have got an opportunity to deal with it now and
we are doing it.
Senator Sessions. It is a big deal. I think it is a much
bigger deal than most people realize. Professor Schulhofer has
repudiated his 1987 article in which he argued Miranda has no
impact on crime clearance rates. That is clearly false. I mean,
anybody that knows what is going on out there knows that that
is true.
You say, well, there are not many reversals based on it. It
is because cases are not even brought. Defendants are never
even taken to trial because the fundamental evidence was the
confession voluntary obtained and perhaps some technical
Miranda violation.
Mr. Robinson. Well, I will undertake this, Senator. We are
going to look at this issue, and look at it carefully and look
at it from a law enforcement perspective. And I don't think--
perhaps I could be wrong about this--I am not sure that the
Senator--it wouldn't matter whether the Supreme Court reversed
Miranda and went a different way or did it in the context of
applying 3501.
The issue is the excludability or not of confessions,
unwarned confessions, that we are all dealing with here in
terms of the law enforcement context. And so I think we are
going to have an opportunity to have the U.S. Supreme Court
speak definitively on its view of Miranda.
Senator Sessions. Well, I guess you are right, and I would
just say this: Miranda was wrong-rendered. The Constitution
does not require a police officer to read the Constitution to
the person he arrests before he asks him any questions. He has
a right not to incriminate himself, but he does not have a
right to not answer questions. He can't be forced to
incriminate himself. One day, we will see.
Mr. Robinson. Perhaps sooner than later.
Senator Sessions. Let me ask you on a more substantive
subject, the bankruptcy matters. I am on the bankruptcy
committee. We have been struggling with how to improve
bankruptcy. Just as a matter of personal experience, I have had
bankruptcy judges come to me and say, Jeff, there have been no
prosecutions. The word is out; if you cheat on your bankruptcy
forms, you flat out lie--and, Mr. Robinson, so much of what is
done in bankruptcy is in total reliance on the honesty of the
forms and statements submitted. People are pretty regularly
lying on those, and what can we do about it?
So I came up with a little idea. We got the bankruptcy
administrator, trustee, and the FBI agreed to assign an agent
to it and to have an assistant U.S. attorney to develop some
expertise, and they have done a good job. Ours is a small
district, but I understand there will probably be eight or more
convictions this year in the Southern District of Alabama for
bankruptcy fraud. I know the lawyer who prosecutes them.
I would just say to you that if you did that, instead of
200 cases nationwide, you would probably have over 1,000 cases
nationwide. And in the course of that, it could change the
mentality of bankruptcy courts. Lawyers would have to advise
their clients, because it is a fairly close bar, that if you
lie on these forms or if you testify in blatant disregard of
the truth, they will prosecute you. Somebody was prosecuted
just last week or just last month, so you better tell the
truth. And I think it would raise the level, and this is a
Federal court.
Mr. Robinson. I agree with you entirely and I think we have
got to do more. A year ago, the Attorney General approved the
creation of the bankruptcy fraud training and identification
program. We need to get the word out. We need to do a more
effective job. We have some things in the works that I would
like to get back to you on that do exactly the kinds of things
you are suggesting we should do.
I think it is a growing problem. I share your concern about
it. In the white-collar crime council, we had the U.S.
bankruptcy trustee represented, and so I think we need to get
at this. The growth in the number of bankruptcies is a national
concern and a national problem and I think we want to address
it. Our Fraud Section is working on this issue and we would be
glad to work further and get further information to you,
Senator, about it. I agree.
Senator Sessions. We have got 1.4 million bankruptcy cases.
If 1 percent of them were fraudulent, what would that be,
10,000 prosecutions, 1,000 prosecutions? I don't know which.
That is a lot more than we have got now, and I think what we
are basically doing is sending a signal that the Federal
Government and the FBI are not interested in fraud. You can go
down there and unless you get run over by a truck, nobody is
going to prosecute you.
Now, in the bankruptcy bill that is pending now, it
requires that the Attorney General designate individuals to
have primary responsibility for carrying out law enforcement
responsibility in addressing the violations of bankruptcy, and
should require that there would be a U.S. attorney and the
agent for the FBI be involved in those cases.
Have you been able to take a position on that? I think the
Department has been basically supportive of that language. Can
you give us an official answer on whether you can support that
language, section 158 as now constituted?
Mr. Robinson. I am not sure the Department's submission has
gone in. The one concern that we would have would be anything
that--I mean, I am sure you remember, getting directions as to
how you run your U.S. attorney's office is problematic. But I
do think that the problem is there and let me just double-check
to see if something has gone in.
I certainly support the notion of upping the ante in this
area. The question of what position the Department has taken on
that specific language--let me check and get back to you,
Senator.
Senator Sessions. Well, it is a matter that I have raised
early on with Deputy Attorney General Holder and others in the
Department, and I think it is a matter that just saying we are
going to do something about it may not be enough. Nothing has
been done. The numbers are still, I think, far too low. This
wouldn't require a single case to be prosecuted, but it would
require a mechanism to be established. And they could have
other duties. It doesn't say that is the only duty this
bankruptcy attorney could have.
Mr. Robinson. I understand.
Senator Sessions. But they would, after handling just a few
cases, become much more comfortable, much more familiar with
how to prosecute them. And I think you would see a dramatic
increase, with no extra funding required.
How do you feel about the asset forfeiture law that has
cleared the House, and do you believe it would undermine in a
significant way the ability of police and prosecutors around
the country to take the ill-gotten gains from criminals, mainly
drug dealers? Are you supporting reform?
Mr. Robinson. I expect you and I are in a hundred-percent
agreement on this subject of asset forfeiture. We have concerns
about H.R. 1658. In fact, we did a little piece that was
published in the Criminal Justice Weekly that just came out. It
was a point/counterpoint between myself and a criminal defense
lawyer, former NACDL co-chair of their--they call it their
Forfeiture Abuse Task Force.
We believe that asset forfeiture is one of the most
effective ways of removing ill-gotten gains from criminals. And
while we think some reform is appropriate and we could live
with it, we are not looking to take money unfairly from people.
We think there ought to be due process. But you mentioned,
Senator, that I had been a Federal prosecutor for 3 and a half
years, but I also did a fair amount of white-collar criminal
defense work. I can say that I represented people in that area
that ended up doing some time, but ended up with money they
shouldn't have had at the end of the day.
And I think we have got to make sure that crime does not
pay, and one of the most effective ways of deterring criminal
activity is to make sure that we go after that money and get it
all, and get all that we can, and have a fair process, but a
process that doesn't allow somebody to do a cost/benefit
analysis and say, well, I might spend a few years in jail, but
when I get done I am going to have this huge amount of money to
live on the rest of my life.
I think asset forfeiture is a critical tool for law
enforcement. We appreciate the support of people who know about
this with your background to help us and we would be happy to
work with you in this area.
Senator Sessions. I think you are right. Chairman Thurmond
was responsible for that law actually being passed, and Senator
Biden also was involved in that. And we are willing to be open
to reasonable improvement, but as I see the legislation that
came over from the House, it is a major reduction of the
ability of the Government to do its work.
And I thank you for debating that issue in those kinds of
publications. Only one side has been getting out. It is hard
for us to do that. I hope that you and your staff will get the
word out to our brethren in the criminal bar that we can
eliminate some of their worst problems, but we need to preserve
the Act.
Mr. Robinson. I will leave a copy of this, Senator.
Senator Sessions. Thank you.
Mr. Robinson. I appreciate your support and the support of
the chairman in this important area.
Senator Sessions. Thank you.
Senator Thurmond. I just have about two more questions. I
am extremely concerned about the possible damage to our
national security that may have been caused by the compromise
of nuclear weapons design codes at Los Alamos National
Laboratory. News reports indicate that in 1997 the Department
did not permit the FBI to establish a wiretap on the telephone
and computer of Wen Ho Lee, the scientist suspected of
compromising these codes. Should the Department have requested
that the court grant a wiretap for Mr. Lee in 1997?
Mr. Robinson. Senator, because that is a pending matter,
and I know there has been a written request that is working its
way through as a response and that is being worked on by others
at the Department, I would appreciate an opportunity to defer
the answer to that to the response to the request that I know
has been made.
Senator Thurmond. The Department has been investigating Mr.
Lee regarding potential criminal charges since at least April.
Recent news reports indicate that the Department is considering
charging Mr. Lee with mishandling classified nuclear
information rather than espionage. Can you confirm this, and
when do you expect the Department to finish its review of Mr.
Lee's case?
Mr. Robinson. I think it would be inappropriate to comment
on a pending criminal matter, and therefore I think it wouldn't
be appropriate to comment on the timing of any of this or the
status of a pending criminal matter.
Senator Thurmond. Senator Sessions, do you have any more
questions?
Senator Sessions. No. I thank you for asking that question
and I would just like to point out that I am very troubled
about those matters. Sooner or later, the truth is going to
come out, I suppose. If we entered into plea bargains with a
number of these individuals and they get little or no sentence
and have provided little or no beneficial information to the
Government, the Department of Justice is going to have to
answer to that.
The Attorney General steadfastly, over the objection of the
FBI Director and Mr. LaBella, did not appoint a special
prosecutor. See, the thing is the crux of handling one of those
cases is often rooted in negotiating that plea bargain. And you
could either insist on the absolute truth, no matter who it
leads to, and get it, and sometimes you have to be firm about
that, or you can enter into a plea too quickly and never get
the truth of what happened.
So I hope that we don't have a situation in which the
Department of Justice is embarrassed, I really do. I love the
Department. I spent 15 years there and I don't want to see its
integrity damaged on this case. The extent to which you are
involved in that, and you should be, you ought to review every
one of those plea bargains and be absolutely sure that it is
legitimate because I frankly am troubled by it from what I have
seen so far.
Thank you, Mr. Chairman. Mr. Robinson and I have discussed
a number of issues before he took office. The Department has
shown some increase in prosecutions in several areas. I pointed
out some in which I still believe more improvement clearly
needs to be done, but there has been some movement in a number
of areas. And I think perhaps you need to figure out what you
did in those areas and maybe replicate it in some others.
Mr. Robinson. We are working hard at it. I managed to
persuade my chief assistant when I was U.S. attorney to come
back from private practice to join me as my chief of staff and
we love being back at the Justice Department. We are working
awful hard, you know, night and day at it, but it is wonderful,
important work and we appreciate the support of alums of the
Justice Department for the mission. I appreciate the
opportunity to be here and am happy to come back and talk
further about other issues.
Senator Thurmond. Senator Sessions, thank you again for
your fine participation.
Senator Sessions. Thank you, sir.
Senator Thurmond. There are many other issues in which I am
interested, such as the impact that drastic changes in our
civil asset forfeitures could have on law enforcement. However,
I will ask those questions in writing to you, if that is
agreeable.
[The questions of Senator Thurmond are located in the
appendix:]
Senator Thurmond. I appreciate your appearing here today
and I thank you, Mr. Robinson.
Mr. Robinson. Thank you very much, Mr. Chairman. Thank you,
Senator Sessions.
Senator Thurmond. We will leave the hearing record open for
one week for additional materials to be placed in the record
and for follow-up questions.
Now, if there is nothing further to come before the
subcommittee, the subcommittee is now adjourned.
[Whereupon, at 3:43 p.m., the subcommittee was adjourned.]
[GRAPHIC] [TIFF OMITTED] T7363.003
[GRAPHIC] [TIFF OMITTED] T7363.004
[GRAPHIC] [TIFF OMITTED] T7363.005
[GRAPHIC] [TIFF OMITTED] T7363.006
[GRAPHIC] [TIFF OMITTED] T7363.007
[GRAPHIC] [TIFF OMITTED] T7363.008
[GRAPHIC] [TIFF OMITTED] T7363.009
[GRAPHIC] [TIFF OMITTED] T7363.010
[GRAPHIC] [TIFF OMITTED] T7363.011
[GRAPHIC] [TIFF OMITTED] T7363.012
[GRAPHIC] [TIFF OMITTED] T7363.013
[GRAPHIC] [TIFF OMITTED] T7363.014
[GRAPHIC] [TIFF OMITTED] T7363.015
[GRAPHIC] [TIFF OMITTED] T7363.016
[GRAPHIC] [TIFF OMITTED] T7363.017
[GRAPHIC] [TIFF OMITTED] T7363.018
[GRAPHIC] [TIFF OMITTED] T7363.019
[GRAPHIC] [TIFF OMITTED] T7363.020
[GRAPHIC] [TIFF OMITTED] T7363.021
[GRAPHIC] [TIFF OMITTED] T7363.022
[GRAPHIC] [TIFF OMITTED] T7363.023
[GRAPHIC] [TIFF OMITTED] T7363.024
[GRAPHIC] [TIFF OMITTED] T7363.025
[GRAPHIC] [TIFF OMITTED] T7363.026
[GRAPHIC] [TIFF OMITTED] T7363.027
[GRAPHIC] [TIFF OMITTED] T7363.028
[GRAPHIC] [TIFF OMITTED] T7363.029
[GRAPHIC] [TIFF OMITTED] T7363.030
[GRAPHIC] [TIFF OMITTED] T7363.031
[GRAPHIC] [TIFF OMITTED] T7363.032
[GRAPHIC] [TIFF OMITTED] T7363.033
[GRAPHIC] [TIFF OMITTED] T7363.034
[GRAPHIC] [TIFF OMITTED] T7363.035
[GRAPHIC] [TIFF OMITTED] T7363.036
[GRAPHIC] [TIFF OMITTED] T7363.037
[GRAPHIC] [TIFF OMITTED] T7363.038
[GRAPHIC] [TIFF OMITTED] T7363.039
[GRAPHIC] [TIFF OMITTED] T7363.040
[GRAPHIC] [TIFF OMITTED] T7363.041
[GRAPHIC] [TIFF OMITTED] T7363.042
[GRAPHIC] [TIFF OMITTED] T7363.043
[GRAPHIC] [TIFF OMITTED] T7363.044
[GRAPHIC] [TIFF OMITTED] T7363.045
[GRAPHIC] [TIFF OMITTED] T7363.046
[GRAPHIC] [TIFF OMITTED] T7363.047
[GRAPHIC] [TIFF OMITTED] T7363.048
[GRAPHIC] [TIFF OMITTED] T7363.049
[GRAPHIC] [TIFF OMITTED] T7363.050
[GRAPHIC] [TIFF OMITTED] T7363.051
[GRAPHIC] [TIFF OMITTED] T7363.052
[GRAPHIC] [TIFF OMITTED] T7363.053
[GRAPHIC] [TIFF OMITTED] T7363.054
[GRAPHIC] [TIFF OMITTED] T7363.055
[GRAPHIC] [TIFF OMITTED] T7363.056
[GRAPHIC] [TIFF OMITTED] T7363.057
[GRAPHIC] [TIFF OMITTED] T7363.058
[GRAPHIC] [TIFF OMITTED] T7363.059
[GRAPHIC] [TIFF OMITTED] T7363.060
[GRAPHIC] [TIFF OMITTED] T7363.061
[GRAPHIC] [TIFF OMITTED] T7363.062
[GRAPHIC] [TIFF OMITTED] T7363.063
[GRAPHIC] [TIFF OMITTED] T7363.064
[GRAPHIC] [TIFF OMITTED] T7363.065
[GRAPHIC] [TIFF OMITTED] T7363.066
[GRAPHIC] [TIFF OMITTED] T7363.067
[GRAPHIC] [TIFF OMITTED] T7363.068
[GRAPHIC] [TIFF OMITTED] T7363.069
[GRAPHIC] [TIFF OMITTED] T7363.070
[GRAPHIC] [TIFF OMITTED] T7363.071
[GRAPHIC] [TIFF OMITTED] T7363.072
[GRAPHIC] [TIFF OMITTED] T7363.073
[GRAPHIC] [TIFF OMITTED] T7363.074
[GRAPHIC] [TIFF OMITTED] T7363.075
[GRAPHIC] [TIFF OMITTED] T7363.076
[GRAPHIC] [TIFF OMITTED] T7363.077
[GRAPHIC] [TIFF OMITTED] T7363.078
[GRAPHIC] [TIFF OMITTED] T7363.079
[GRAPHIC] [TIFF OMITTED] T7363.080
[GRAPHIC] [TIFF OMITTED] T7363.081
[GRAPHIC] [TIFF OMITTED] T7363.082
[GRAPHIC] [TIFF OMITTED] T7363.083
[GRAPHIC] [TIFF OMITTED] T7363.084
[GRAPHIC] [TIFF OMITTED] T7363.085
[GRAPHIC] [TIFF OMITTED] T7363.086
[GRAPHIC] [TIFF OMITTED] T7363.087
[GRAPHIC] [TIFF OMITTED] T7363.088
[GRAPHIC] [TIFF OMITTED] T7363.089
[GRAPHIC] [TIFF OMITTED] T7363.090
[GRAPHIC] [TIFF OMITTED] T7363.091
[GRAPHIC] [TIFF OMITTED] T7363.092
[GRAPHIC] [TIFF OMITTED] T7363.093
[GRAPHIC] [TIFF OMITTED] T7363.094
[GRAPHIC] [TIFF OMITTED] T7363.095
[GRAPHIC] [TIFF OMITTED] T7363.096
[GRAPHIC] [TIFF OMITTED] T7363.097
[GRAPHIC] [TIFF OMITTED] T7363.098
[GRAPHIC] [TIFF OMITTED] T7363.099
[GRAPHIC] [TIFF OMITTED] T7363.100
[GRAPHIC] [TIFF OMITTED] T7363.101
[GRAPHIC] [TIFF OMITTED] T7363.102
[GRAPHIC] [TIFF OMITTED] T7363.103
[GRAPHIC] [TIFF OMITTED] T7363.104
[GRAPHIC] [TIFF OMITTED] T7363.105
[GRAPHIC] [TIFF OMITTED] T7363.106
[GRAPHIC] [TIFF OMITTED] T7363.107
[GRAPHIC] [TIFF OMITTED] T7363.108
[GRAPHIC] [TIFF OMITTED] T7363.109
[GRAPHIC] [TIFF OMITTED] T7363.110
[GRAPHIC] [TIFF OMITTED] T7363.111
[GRAPHIC] [TIFF OMITTED] T7363.112
[GRAPHIC] [TIFF OMITTED] T7363.113
[GRAPHIC] [TIFF OMITTED] T7363.114
[GRAPHIC] [TIFF OMITTED] T7363.115
[GRAPHIC] [TIFF OMITTED] T7363.116
[GRAPHIC] [TIFF OMITTED] T7363.117
[GRAPHIC] [TIFF OMITTED] T7363.118
[GRAPHIC] [TIFF OMITTED] T7363.119
Additional Submission for the Record
The University of Utah,
July 23, 1999.
RE: Performance of the Current Administration in
Supreme Court Criminal Cases
Senator Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight,
Senate Committee on the Judiciary,
Senate Dirksen Office Building,
Washington, DC.
Dear Chairman Thurmond: I understand that you are interested in the
performance of the current Administration in defending the interests of
effective law enforcement. I write to provide some statistical
information that bears on this question.
As you may recall, on November 14, 1995, I testified before the
Senate Judiciary Committee concerning the performance of the
Administration in criminal cases before the United States Supreme
Court. That testimony collected statistics on amicus briefs filed by
the United States in state criminal cases. (More information about this
methodology is set out in an attachment to this letter.) One set of
statistics showed that such filings in all criminal cases had fallen
sharply when the current Administration assumed control of the Justice
Department. During the Court Terms 1989 to 1992, when political
appointees in the Bush Administration reviewed such filings, the United
States filed supportive amicus briefs in 53 percent of all criminal
cases. In Court Terms 1993 and 1994, when appointees in the Clinton
administration made the decisions, such briefs were filed in only 29
percent of all cases. I tentatively concluded from data that the
current Administration was, contrary to its public promises, in fact
less committed to supporting the states in criminal cases was than its
predecessor.
When I testified in 1995, I cautioned that it would be informative
to continue to follow the data and see whether this pattern continued
in subsequent years. I have recently updated my data and can report
that the problem of lower support for the states persists. In the three
most recent years the current Administration has filed briefs in a far
lower percentage: 38 percent in 1995, 36 percent in 1996, and 23
percent in 1997 (the most recent year for which data is available).
Over all, compared to the Bush Administration's record of supporting
the states in 53 percent of the criminal cases in front of the Supreme
Court, the Clinton Administration has supported them in only 29
percent.
A similar picture emerges if one narrows the focus to an important
subset of criminal cases: death penalty cases. During the Bush
Administration, supporting amicus briefs were filed in 37 percent of
all capital cases. For the five years of the Clinton Administration for
which data is available, such briefs have been filed in only 17 percent
of all cases.
Based on this expanded data, the differences between the two
Administrations have become even clearer than when I testified earlier.
As a result, I feel even more confident that the current Administration
is less interested in supporting effective law enforcement than was its
predecessor.
The methodology for all of these calculations is precisely the same
as that elaborated in my earlier testimony. If I can provide any
further information on this subject, please do not hesitate to contact
me.
Sincerely,
Paul G. Cassell,
Professor of Law.
______
attachment--methodology for calculations
To gather information on the subject of supporting the states in
``criminal cases,'' the following methodology was used. Because
defining ``criminal'' cases could be the subject of debate, I used a
neutral source for my data base: the annual United States Law Week
``Review of the Supreme Court's Term,'' which summarizes the Supreme
Court's opinions in the area of ``criminal law.'' For each of the last
nine Court terms (four during the Bush Administration and five during
the Clinton Administration \1\), my research assistant then identified
the cases in which a state was a party and, if so, whether they had
been supported (or opposed) by the United States as an amicus curiae.
Because the number of criminal cases varies from year to year,\2\
statistics based on absolute numbers might be questioned by some. To
avoid that issue, my research assistant derived a percentage of
criminal cases in which the state was supported by the United States.
This was determined through an electronic search of a legal database
for an amicus brief filing by the Solicitor General's Office. For
purposes of this computation, consolidated cases were treated as one
``case.''
---------------------------------------------------------------------------
\1\ It appeared that most of the briefs for cases argued during the
transitional October Term 1992 were filed during the Bush
Administration.
\2\ See 64 U.S.L.W. at 3127 (summarizing the Supreme Court's 1994
to 1995 Term and concluding that the Court's ``output of criminal law
cases declined for the second year in a row'').
---------------------------------------------------------------------------
After all of the state criminal cases were compiled and verified,
the number of Solicitor General amicus briefs filed for one given
Supreme Court term was divided by the total number of state criminal
cases decided for that same term; the number from this calculation is
the percentage of amicus briefs filed by the Solicitor General's Office
in support of the states for that given year/Supreme Court term.
The same procedure was done regarding state death penalty cases--
namely, the number of Solicitor General's amicus briefs filed in state
death penalty cases for a Supreme Court term was divided by the total
number of state death penalty cases decided for the same term; the
number from this calculation equals the percentage of amicus briefs
filed by the Solicitor General's Office in support of the states in
death penalty cases for the given Supreme Court term.