11/22/94 20:41 '5'202 514 1724 DOJ-OAAG ; November 22, 1994 I MEMORANDUM FOR THE ATTORNEY GENERAL AND CAROL RASCO COPY TO: PAT GRIFFIN, JACK QUINN, RAHM EMANUEL, BRUCE REED, MARTHA FOLEY, JAMIE GORELICK, JOHN SCHMIDT FROM: RON KLAIN SUBJECT: CRIME BILL "REDUXI1 By now, we are all aware of the Republican proposal to revisit last year's hard":'won Crime Bill. The purpose of this memoranduln is to respond to Carol Rasco's request that I outline some cif the choices we face in dealing with this GOP initiative, and offer some ideas about hO\-l to deal with these challenges. INTRODUCTION: THE REPUBJ,;ICAN STRATEGY Based on my with key staff people, and a revie.w of the draft House GOP Bill, we know the basic outline of the GOP strategy on revisiting the Crime Bill: • Ii • They intend to move. fast on the Crime Bill -- it will be one of their very first ,items; As made clearer below, their major sUbstantive goals are abolishing the loo,doa cops program; wiping out the prevention programs; and adding "tougherllprovisions on habeas reform, rule, and criminal sentencing; , The GOP leadership does not intend to push a repeal of the Assault Weapon Ban but they are probably unable to prevent their "back-penchers l1 from launching such an effort. other matters, however, remain unresolved -- and pose interesting complications: • They are divided over whether they want to produce a bill that the President will (or must) sign -- or whether they looking to taunt him: into a politically-difficult veto; • Senate Republicans qo not appear to be fully_signed on to the House GOP plan -;- preferring, for example, provision,S that are more to Governors; and • How the GOP leadership will accommodate the press for action on an assault weapons repeal -- perhaps moving it as a separate bill intei1d¢d to be vetoed -- remains unsettled. 11/22/94 20: 41 '6'202 514 1724 DOJ-OAAG !aJOOJ '. Still, they have a basic game plan that is clear: they will attempt divide ourremairting forces on the Hill with a tough-oncrime bill that slashes prevention, while also quietly taking away one of our best victories, the 100,000 cops program. To counter this, we will need a clear and strong response. It will need to that we want to build upon last year's bill -- strengthening and: improving it without going backwards. And above all, our strategy needs to be cognizant of the fact that there are only two possible outcomes: the President will have to sign the bill congress'sends him l or veto it: • If the President sign this bill, it will outrage our core constituency in the Congress -- if this is where we are headed, posturing for their benefit along the way makes little sense (and instead, we should be looking now for ways to close the gap between us and the GOP on this issue). • If, on the other hand, the President ends up vetoing the bill, then the fight will be over why he vetoed it -requiring that we be highly disciplined in the early stages in saying what will or will not oppose. We cannot needlessly give the GOP the opportunity to say that the President is vetoing a "tough on crimell bill for Ilsoft on crime u reasons. The inevitability of this choice drives where we should stand on certain issues -- for on defending the most hotly assaulted prevention programs. THE-ltEPUBLICAN BILL While Senate Republicans are still working, House Republicans have already produced a draft bill. Summaries and spending charts are attached; ironically, its price tag of $29 billion is about the same as the tlbloated ll 1994 Crime Bill that they deemed so vastly overfunded. Tha major (1) of ,the House Republican bill are: Elimination of 100,000 cops program, to be replaced by a IILaw Enforcement Block Grant,1I that localities can use to hire cops, pay overtime, buy police equipment beef up school security, or fund citizen watch groups; J (2) Elimination some of the Enforcement reallocated of most of the crime prevention programs, with funding (about $1 billion) moved into the "Law Block Gran:t," and another chunk ($2 billion) to prisoni; 2 11/12/94 20:42 '8'202 514 1724 : DOJ-OAAG .' (3) Tough habeas corpus and exclusionary rule reform, designed to sharply limit death row appeals, and broaden the use of illegally seized evidence in courtsi (4) of all crimes committed with guns, coupled with stiff mandatory minimum sentences for those offenses; (5) Tougoer truth in sentencing standards for states that want prison grants r along with limits on prisoner lawsuits; and (6) Various otherp,rovisions on victims rights and criminal alien deportation (that we generally support) . All of the above are fairly obvious and self-explanatory, except perhaps the first -- the,elimination of the 100,000 cops program. The Republicans· goal here is purely political and tactical: to take away the clearest, best nClinton achievement" on crime, and to deprive the President of the opportunity to award communities allover this country their share of the 100,000 new police officers. Their method is fairly clever: by moving police hiring funds into a new block grant, Republicans are selling the mayors on the idea that they will get all the cops money we would give them but with no requirement that it be matched, or that the funds be used to hire police. Thus, many mayors will support the GOP package in lieu of the 1994 Crime Bill, because the burden on the mayors is lesser (no match), the funds mor:e flexible, and the total funding roughly equal to what they actually expect to see appropriated for COPS and crime prevention. Police groups may also support the GOP, as they prefer having more money for overtime and equipment for existing cops, rather than our plan to hire new police. Many Democratic Members of Congress, will, in the absence of leadership fro¥t us, go the way of the Mayors. Moderate Republicans were pushing this idea last yearj they, too, are very likely to line up behind it now. In sum, the 100, C?"OO cops program is substantially at risk from the Republican proposal. Our only chance to save it is a strong, public, confrontational "line in the sand l l message from the President of the following sort: I "Congress passed the.l00,OOO cops program last year, and I signed it: that is mY 'contract with the American people.' I will fight against -- I will veto -- any bill that repeals my guarantee of 100,000 new police on our streets." 3 III 004 11/22/94 20:42 '5'202 514 1724 DOJ-OAAG To wage this fight/ we will need to attack the Republicans hard for playing politics with the 100,000 cops and for passing out . "porkll to mayors -our efforts on saving the COPS program, as opposed to all of the crime bill programs (i.e., crime prevention). The natural tendency of the Rress corps will be to play the fight.as the Republicans "tough on crime" vs. Democrats "fighting for prevention ll - - they will be inclined to Ifmiss" our stand for the police and describe us as fighting for prevention only. In response, to save the· COPS program, our rhetoric must focus clearly on that program ahd to make it clear that we are pushing the tougher on crime position on that issue. This will be hard. We will have few Congressional Democrats, few mayors, few police groups, on our side. But if we really care about saving this program ( it will take a focused and disciplined effort to be successful. . REPEAL OF THE ASSi\ULT 'WEAPON BAN One issue not included in the Republican bill is a repeal of the assault weapon ban: their leadership wants to get the focus off this issue, which divides their party as it does ours. But notwithstanding the elesire of the GOP leadership to make this issue go away, we all know'that a large share of their rank-andfile -- and some of their key constituencies are goin<;1 to demand action on repealin<;1 the gun ban. We can expect floor amendments in the House and senate to repeal the gun ban -- and those measures will probably pass in both chambers, given their new line-ups. While some Senate Democrats may be inclined to filibuster to save the gun ban, this particular use of that device might play into Republican hands. Given that, we are probably looking at an assault weapon repeal making it to Conference -- with the Republicans forced to choose between including it in their Crime Bill (which presumably gives the President a -solid basis for vetoing the bill), or it as a separate to the President (which the NRA views as a sell-out). Rep. Gingrich favors this second course i . e. let the MG:mbcrs vote,: and make the President veto it, without allowing the assault weapon issue to derail the GOP Crime Bill -- but where it will come out, is still unclear. OUR STRATEGIC POSTURE In light of all of this, it seems to me that we have four strategic options: 4 ,I4l 005 .. ' 11/22/94 20: 4J '5"202 514 1724 DOJ-OAAG . (1) Engagement. The President. could stay above the fray, saying that he supports last year's Crime Bill but does not object to Congressional efforts' to improve it -largely, staying out of the fight. This strategy would envision the President signing the Bill that Congress passes (assuming that this Bill does not include an assault ban repeal) . Pro • Does not involve taking new positions avoids alienating congressional Democrats because we do not affirmatively back changes in the Crime Bill; "Looks presidential" the President stays above the fray; Allows the,President to sign a bipartisan, toughon-crime bill in the end. • • Can • If not quite a betrayal, Congressional Democrats will view this as an abandonment -- a repeat of our 1993 "hands off" approach to crime bills; Means that'a repeal of 100,000 cops program and all prevention programs is assured; Concedes this issue and the Crime Bill to the GOP. • • (2) Support "Going Forward«" Contest. '(Going Backll. A second approach would be to welcome Republican efforts to build on last year's Crime Billl but to vigorously oppose -- even with a veto threat -- proposals that would tear down what has been accomplished. specifically, I would propose two "lines in the sand" -- a veto threat of any bill that would: (1) eliminate the guarantee of 100,000 new cops; and (2) eliminate the assault' weapon ban. • • • • Con: • • • Best chance for saving the 100,000 cops program; Shows the President standing up for his core beliefs and. his core achievementsi stands behind last yearts achievements; If the bill passed by Congress preserves 100,000 cops and the gun ban, the President has a tlwin" when he the new Crime Bill. Congressional liberals will resent selective use of Presidential power -- they will want all crime bill programs protected by veto threat; May provoke bitter confrontation with Republicans -- they may call our "bluff" just to see if the President will veto a "tough on crime" bill: conservative democrats will probably resent another higti-profile focus on assault weapons. 5 tal 006 11/22/94 '6202 514 1724 20:43 DOJ-OAAG I(1J 007 (3) Vigorous Defense of'Last Year's Bill. The third strategy is a broader version of the second -- to extend the uforward only, no going back" formulation to the whole of last year's crime bill, including the prevention programs. • Pro: • • • • • Con: (4) Provides a strong. full defense of "what we believe in" -- looks principled; Best chance of support from elite media; Most appealing to our base in Congress -- and to Mayors and local officials. This leaves us defending some unpopular programs; It makes it very hard for moderates -- both Democrats .and Republicans -- to rally behind us; It is certain to provoke a biter confrontation with Republicans in Congress. Offer New crime Legislation Building Upon Last Year's Bill. This final possibility is consistent with the second; we could draw some lI·lines in the sand" about what we will oppose, while also proposing a new bill that would indicate some ideas about how to "move forward." Pro! 0 • • Con: 0 • o Allows us to be "forI' something, and not just "against" their proposali Gives us a'vehicle to rally Congressional moderates and Mayors to our causej Makes the ultimate product from Congress (which ... -ft:..1 would probably reflect a mix of our stuff and the GOP bill) a IIwin" on a nevi bill that the President wanted, rather than a repeal of last year's bill. · Any proposed in the bill (e.g., prevention cuts} will be seen as selling out; Our centrist bill may lack Congressional support: it will be too conservative for Democrats l too liberal for Republicansj Anything we do just moves the Republicans further to the right in an effort to "outbid ll us. My personal view is that we should oombine "(2)" and "(4):" the President should say that he will fight any bill that goes backwards (including a veto threat on COPS and assault weapons), while offering a constructive proposal for moving ahead. OUR NEW BILL Attached is a very, very rough outline of a possible new crime Bill -- one that builds upon the foundation of last year's bill. Also attached are comparison charts of (a) last year IS bill to (b) the GOP 1995 and to Cc) possible 1995 bill. 6 i'.."..c J;,.r . ... J.rs, 11/22/94 ;. 20:44 'a'202 514 1724 DOJ-OAAG , Among the major features of our bill would be: • Law.Enforcement: We would keep the 100,000 cops program; double the Police Corps program; add 4,000 new police for schools that want cops in the halls; and allow local governments to use crime prevention funds to pay their share of the local match for police hiring grants. • Prisons: We would require states that want prison grants to abolish parole and have pre-trial detention for violent offenders. We would provide $700 million to build facilities to house .violent juveniles. • Prevention: Ten crIme prevention programs would be combined into one crime prevention block granti we would simplify the after-school programs; and mandate a review of crime prevention programs :for further streamlining. (Prevention funding would be cut by $1 billion to fund the new spending proposed above). • Habeas Reform, Exclusiona):y Rule: We would provide alternatives to the Republican proposals in these areas. Anti-Gang Efforts: In addition to the violent juvenile incarceration plan, we would also hit at gangs with new penalties and new authorities to prosecute violent kids as adults. • victiins' Rights, criminal Aliens: We would meet the Republican proposals: in both of these areas. • Drug Court Improvements! While preserving Drug Courts, we would allocate half of the funding for drug prosecution at present, all of the tunding is for drug treatment. • Terrorism, Public Corruption. Sexual Assault: Unlike the Republican bill,ourbill would have provisions attacking all three of these problems. Again, a brief outline is attached (we have a longer, 20-page outline available . Ct&.IItu tlmjl limlu lot .tate h.abeas filing: authotilu appo!late judge:! to Issue certlflcat&! 01 prohable causa for appeal In federal habeas cases; reQuiru II circuil judge-issued certificate of plobabl.a calise fOf appaal berora tM case may procead; provide! state couns' discretion tQ deny habeas applications despite tailure to Uha'IJ51 Alate (&m&die!) creates s filing tim& limit for collaletal remedv In lederal courts; e$lablisne.s counsat appoIntment. quaUflca,lon. and -. - I-:Q!) : " t-,., ::: 0&;. .... ;:: 01.>. g c... I R.eQulres abolltio/\ 01 pat()l<& and Encouraging Truth·in· Senlencino - 1/2 of IU:'lds on meeting Truth·ln-Sentencing reQuirements, TIghtens standard!! tor tl\e genaral Trum-1n·Sef1tenclng orant program and lImIts pro01am eligibility. mao.de'ory pretrial detention 0' dangerous calenda.nts as conditions lor TrUth-h·Santencing ir,can{ive - - 1 - - - - - - - - - - - - - - - -grants. ;;; t§;I ....<:> 0&;. '. '1: ISSlJf .. Sends a clear message to your-g would-bll crimina.s DV prollidino funds to tlr',d localities lor punishment or young otfanders; allows children down to ege 13 '.0 t;c vied as an adul! 'or certain violant crimes: and creatos penalties 1(11 lJ.mg-rclaled crimes. rot Srtlcning Young :Y:Y ·f.·• .tf •. ........ \1 • v .... 'O' No Provision I Seri·)u& Punishmenl SeJ< C,imes rOI In<:(eases pen.alties and defines availabla restitution lor sex crimes. .... .... ' • • • • • } •• No ProvIsion , Srl)adens the rango 1)1 oltenses tor advlts; whic.h Juveniles may b& makos serious jllVenlle druo subject to the Ar(;)Qd Cates: Criminal Act: new sal/ete j:·enallia$ lot gang-crimes: alld Ilases rOS!rictiCM allowing the usa 01 juvenile crim':MI records on first adjuoication ot a serious crime Of drug Ira/lickino law. " " "'" t.3 N (0 N Q "'-," Requires HIli tesling ()/ sel< ol1ol\do,s af\d loughat penallios HlV positive sox of/enders. N Q N Victims' Righ.ts 01 Allocution ar.d Restitution Provides lor victim's right of allocution i rl sentencing. Expands victims' riohl to mandatory restitution to a!1 offenses under federal crimInal coda. Expands victims' riQht t-:l mancJatory restitution to ali of.(;l)sj!s under leae,.f. criminal code (same). .... (II "'" l- DlUg COUII$ ,- Touohonio'\l Drug Laws I Supporting Stale snd Local ?ro$llcutors Meaningful Gun Laws StoJlpi:'lg Child Pom09f1lp h l' TIIlf1icklnQ Eases tho load I)n state criminal justice Ilvstems by pcovldlng over t I billion In _IVrlding for.. stales,St. Bans the maf\ufacttlfe, tr&n.ster, and possession or certaln usault wuporu: continuos funding for tha Brady Law; 3f\d creatos new offenses fot lhe possession 01 'v bv II luveniles. Calls fOf mal\dalory 'or cGrtaill crImes in which a Dun Is us.ed. No Establisnos tougher pOMltles fOf Ilersons engaging In In(amation'll traffIcking In child pornography. --- .. -- .. .. - --- "'" N "'" t;:1 0 r 0 > > G"l ' i No Prollision Tightens loopholes ir. U.S. Coda 10 crack down I)n importuion of olectronically depicted cniLd poro ogr aptly. - f§I .... Q (II f- ISSUE :;'.-r .::!:':".: t:.,:\: : " 'f!, "', .'" 1995 '".. r·1'\. "";;';.'" •• ;;1:' Aitls" (edfral prosecutors bv utendi...g the slatutl) of limitations f()r c:enaln III({orism " No Proviston offenses and allow$ the admittanco to the U.S. d allens with reliable InformatIon "bout ter/otis! o-rganiutio-r.s. Crcckin9 Oowo ()n TCrfGlis"ll s.ri/(cI penalties (lolli;"!? H.Wl Crimcs '01 No Provlsbn hat'" climes. . '. " ·;I •• ••.• .·r- BIll '.' ., : '. _I": • ,Ii' ...... ...... ..,, res!d.::tlons on Material Suppon of iOffofism I'Wl)s!lo."!tioi"is; te!orms j>roeedu,et 10' removal of" allon terrorist! to avoid compfomisin';) federal te:rrerism Gases: an:! clarifies U.S. crim'fI3\ jurisdiction in the extended territorial"sea. .., '" (0 "'" .., c::> ..,."'" proc(ldures and standards tor hate crimes" r.enlllr'lcing enhanCl!men: consistent with ocher seol·Jflcin(l enhancement lactc(s, .., ." c::> PREVENTION <:n ...... "'" - prisco and Funds lIariou$ llfOllen crime·prevention programs ar.d coordinates other programs authoriled by \he VCCA Crime ·Prellcnfion ilnd Coorc:inatkln Alter School Pto;Jrams Cuts neartv $5 billion from prQII"entior, progtame and sh1fts resources to ,6,ulho(t.es ove-r new crime prevention grant program!, tota!llno 57 bllli()n "admin'sterad"b.'( dilleremfederal ag;mcies: General Crime-Prevention · CreMes two n.ew proorams to fund ahat school programs '01 '(ouna people. law ellforceme ot 0 ranls.- j Mandates Crime Prevention Council to examine consQlidation o( prellencicn Abolish&s these prc(?rams. Consolidates tna twO Inlo a singhl youth sIJpslvision/early in(&fvention program; streamliMs prllcedures. , Transfe.s 'unding from thIs Il(ogtam tSlat>lishas 1\ felmula block gram program for local oo ....ernmerus for speeifi.:: crime prevention purposes. Loul Crime Prevention Siock Granl$ Combines flln separate prevention blOCK p:ooram t see belOW! and reduces crime preveNion funding b'" I billion, Abolishes Prevention Council. I loto the"new law enforcement grant program. ...... ..,..,. "'" o c:... I o :;.:;.- In R&tai ns this program al'ld CC f\sotid a un 1i.6vIlral vee,," prl!vercion plo";)rams in this blcck grar,1. IMMIGRATION VCCA ISSUE ," ":.' Getting TouJ)/\ on Illegal Aliel! :. Stil/ens penallies lor arien smuQoling, failino co depart or reentering aftar .. deportatiM. and passJ)O-rt and wisa IIlolalions. Dep':Htation 0' Aliens · ':::reales new d!poftadon procedures for criminal aliens. · " .:' ," " , 1996 REPUBLICAN lUll . . ." "\995 ADMINISTRATION BILL No Provlsioos Increa!>es penalties $I1'\Ullllling, Calls fe. naw deportatioll prccadures for crlmlnel ellens. Calls (Of new deportat;on p'oc!durcs for criminal alian.s jsame). /01 " I§J c::> ...... a. 11/22/94 20:48 '5"202 514 1724 DOJ-OAAG Crime Bill Cornpar1&IOI"II 11/22J94 05:4' PM Total AUthorlmd Funding (DollarS In thgu..ms) DEPARTIoCEKT OF JUSTlCe Public: Safecy and Policing Community Policing; "Cops 01'1 tha Bett' $8,800.000 Community Pollcn;; "Copll on tha B..at" Law Errfon:elTMJf'1t Block Grant!! ('$0.800,000 0 10.000.000 S 10.000,000 PrisoOlJ CotT9ctiol"lQI Faeil,Niol. OffOMer Inean:el1l1ion arw CeMin Y'U.l1"rg Offendflfll of Ul'Idocumel'ltod Criminal Aliena Cli1'l"lO Prnention Crime Pre-..ention Grants (misc.) &.Ibatanc:a Ahusa Treatment In Federal PriIloOI'II 7.895.000 Correctional Fad,Mol. Offundef IneatC8ralion Gr&nts : . Truth In Sentencing GrantB 150,000 (7.895.000 10,499.600 0 150,000 1.soo.ooo 1.800.000 1,2'22.300 Cflme PrewntiCln GrIll1tS (mJsc.) 112.500 ., 10.499.600 5.000 0 112.500 270.000 5.000 VIOlence AglSinst Women 1.010.200 1,010.200 DNg Courta 1.000.000 Orug CourI:B Ree. SYbstance AbUM Traatmont for S\ato PriSOlW'W TrMttnem of TuberculOilis In Corraetionellnstitudonls (1.22.2.300 270.r:1JO ,, Crlmll'l&l Allan Tracking c.m&r (1.000.000 o t3.ooo 19.000 1,191.400 Crlmln41 Aliens & Immigration Enforcement Other Law Enforc:erneM 241.000 241.000 Federal Law Enforcement 644.000 &44,000 Polle. Corp. & La. EnfQ{Qamem OH. TrftG. and state and Local Law Enforcemont 200.000 1,527,700 1.527.700 &enlor Citlzena AgaInst IoCmetinliJ Scama Subtow. Department of ..kJstiC9 OTHER DEPARTMENTS; COui1a EdUcation & Training 10" FederClI .u:!gee: AddltlO"loo\5I Appropriations 2.0.000 1 .595,300 HHS/HUDJlnteriOf Pre...nnon Grants InterlorITranaporta11on Capitlllimprovemont to Prel/'Elnt CriITMJ Nat'l Commission on Crime Control & PreY9ntlol 700 700 200.000 EdlJcalion/HHS Femily & Comm. Ende4YOf Sehools GrlV'lt Program 200.000 Family' Comm. Encleawr Sehools Grant Program 2.468.000 27.6&4,o4Cil Prevention Granta 0 (1.894.500 S73.SOO 35,000 35.000 1.000 1,000 600 500 State Justice Institute EquliJ Justice of Women in the CoUl1:5: Training Gnu Treasury Resist/u'lCe Educa1ion &. Training Projact3 RurGl Drug Enforcoment Training; FLETC Additional Appropriations Other Departinenls Total. Crime Bil 45.000 Geil"rg Resistance Educ:.ation & Training Projects 5,000 0 5,000 . S50.ooo 550,000 SlJbtotal. Other 30 204 400 T0t41. Crime Sil (2.749.500 {1154 200 1.365.800