Comprehensive Crime Control: A Democratic Retreat

Article excerpt


A Democratic Retrieat

While Gramm-Rudman restrictions may be wreaking havoc with the American constitutional appropriations process for fiscal 1987, we are already starting to pay the cost of what the appropriations process for fiscal 1985 did to restrict American constitutional and individual rights. Because of the election eve passage in 1984 of an innocuously titled "Joint Resolution making continuing appropriations for the fiscal year 1985, and for other purposes,' more Americans, both guilty and innocent, are being incarcerated, and will spend more time in more jails for years to come.

The "other purposes,' attached by House Republicans' astute parliamentary maneuvering on the eve of the last Congressional elections, included a grab bag from prosecutorial wish lists, now known as the Comprehensive Crime Control Act of 1984. Then-Attorney General William French Smith called this act "a historic measure, the most far-reaching, substantial reform of the Federal criminal justice system ever enacted by the Congress.' If one substitutes the neutral term "amendment' for the valuecharged "reform,' the Attorney General's description is a telling summary of what was done.

Under provisions of the Comprehensive Crime Control Act, many Americans are being jailed by Federal magistrates without being granted the right to bail--a right that had been recognized since the first Congress in 1789. For this historic right, the ninety-eighth Congress in 1984 substituted the concept of "preventive detention.' This permits a defendant--constitutionally presumed to be innocent unless and until tried and found guilty by a jury--to be kept in jail before trial if a Federal magistrate finds from hearsay evidence, or even from the proferred statement of a prosecutor, that he is dangerous to the community. Many magistrates are so finding. If the detained defendant is later acquitted, or the charges against him are dismissed, no recompense is given for the weeks or months spent in jail awaiting trial. Furthermore, as practicing lawyers well know, the defendant who is not at liberty before trial to assist in preparing his defense and who is cut off from his job and community ties is less likely to gain acquittal from a jury or be placed on probation by a judge. Already the act has increased by one-third the number of Federal prisoners in jail awaiting trial. As a result, the United States Marshals Service has reported to Congress, the overcrowding of jail facilities has produced a crisis.

Many persons convicted and sentenced to Federal prisons, after the Comprehensive Crime Control Act becomes fully effective next year, will spend more time in confinement than persons convicted of the same offense today--with the longer sentences in overcrowded human warehouses decreasing the already slim chances for rehabilitation and increasing the personal misery involved. The act abolishes the longstanding right to seek early release on parole, and severely limits judicial discretion in sentencing. In determining what term of imprisonment to impose, judges will generally have to follow a set of guidelines, to be issued by a presidentially appointed Sentencing Commission. If the judge decides that a particular defendant deserves a sentence more lenient than the guidelines indicate, Federal prosecutors--for the first time in our history-- might appeal to a higher court for a harsher sentence. The Sentencing Commission's chair, Federal Judge William Wilkins Jr. of South Carolina, put it neatly when he said, "This Sentencing Commission, and the law which established it, will make more significant changes in the justice system than anything else that has happened this century.'

The very existence of sentencing guidelines for each offense in the Federal Criminal Code will strengthen the Federal prosecutors' already strong hand. Although theoretically the grand jury decides what charges to bring against the defendant, as a practical matter the prosecutor is in a position to determine what those will be. …