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Contract With America = Contract on Prisoners

In late September, 1994, while running for Congress Republican congressional candidates signed Newt Gingrich's "Contract With America" which included detailed proposals in the form of draft legislation to modify federal criminal law in important respects. It is dubbed the "Taking Back Our Streets Act." While nothing is really new in that most of the proposals have been made in the past, they were usually stripped from legislation that passed. With control of both houses of congress it is very likely that all or some of these proposals will make it into law. Given Clinton's opportunism and own fascist tendencies it is unlikely he will veto any "anti-clime" legislation that makes it to his desk, after all, what moneyed interests are opposed to it?

The bill's provisions on habeas corpus would impose a one year time limit within which to seek federal habeas relief for a state conviction. The limitations period would run from the last of the following: "(1) The time at which state remedies are exhausted. (2) The time at which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, where the applicant was prevented from filing by such state action. (3) The time at which the Federal right asserted was initially recognized by the Supreme Court, where the right has been newly recognized by the Court and is retroactively applicable. (4) The time at which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence."

Federal prisoners seeking habeas relief would have a two year time limit to do so. Proposals made by Republicans in "anti-crime" legislation in 1993, which would abolish federal habeas relief for state prisoners, has not yet resurfaced. The current proposal does include special provisions for state habeas petitioners under a death sentence. Such prisoners could only obtain one stay of execution and if they do not succeed in their first round of federal habeas petitions further stays would be barred unless a few limited circumstances were present.

The bill would expand the "good faith" exception to the fourth amendment exclusionary rule. First announced in U.S v. Leon, 468 US 897 (1984), the exception now applies when police seize evidence based on a valid search warrant that is later found to be defective for one reason or another (say the police omitted facts or perjured themselves getting the search warrant). The proposed legislation would not allow the exclusion of evidence in federal court on the ground that the search and seizure that produced it violated the fourth amendment "if the search and seizure was carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the Fourth Amendment. The fact that evidence was obtained pursuant to and within the scope of a warrant constitutes prima facie evidence of the existence of such circumstances." The bill would also prevent federal courts from excluding evidence seized to violation of statutes, administrative rules or regulations or rules of procedure unless the "exclusion is expressly authorized by statute or by a rule prescribed by the Supreme Court pursuant to statutolauthority." This essentially nullifies the fourth amendment and allows the use of evidence obtained with a warrant whether or not the warrant is valid, accurate, etc. and strips the courts of the power to decide such issues. The constitutionality of this provision is dubious as it seeks to replace the judgment of the courts to interpreting the constitution with that of congress.

The proposed legislation would set mandatory minimum sentences of ten years for anyone who uses or discharges a firearm if the underlying violent or drug crime can be prosecuted in state court. It would also forbid probation, concurrent sentences or any type of early release during the sentence imposed for the gun charges. This law would add to the multitude of state and federal laws already criminalizing the use of firearms in criminal activity.

The legislation revisits the recently passed federal crime bill [PLN, Vol. 5, No. 12]. It would make restitution mandatory for all defendants convicted of federal crimes. The crime bill made it discretionary and allows a trial court to consider the defendant's ability to pay, financial needs, etc. The proposed change would order restitution in the full amount and "without consideration of the economic circumstances of the offender."

The proposed legislation would seek to eliminate all the money provided by the last crime bill to drug courts, local crime prevention, police recruitment, etc. for a total of $5 billion. The money would instead go to hire more police (in addition to the $8.8 billion already allotted for this) and allow schools to apply for grants to hire police, install metal detectors, etc.

It would significantly change the allocation of money for prisons in the last crime bill. Raising from $7.895 billion to $10.499 billion the amount spent over six years on state prisons. The money could no longer be used for boot camp or alternative prisons. The criteria for states to get the money would be shortened so that a state had only to provide assurances that since 1993 it had increased the number of "violent offenders" sent to prison; increased the average prison time actually served in prison by "violent offenders" sentenced to prison and increased the percentage of sentence to be actually served in prison by those sentenced to prison.

In an effort to limit state prisoners' access to the courts they seek to modify 42 U.S.C. § 1997, the Civil Rights of Institutionalized Persons Act, which would require the exhaustion of state remedies before a state prisoner could file suit under 42 U. S. C. § 1983. They would also change the law so that prisoners and employees would no longer be required to have an advisory role in formulating, implementing, and operating prison grievance systems, and courts would be empowered to dismiss prisoner § 1983 suits upon being satisfied "that the action fails to state a claim upon which relief can be granted or is frivolous or is malicious."

We are sure that once this legislation hits the floor there will be a rapid "bidding war" to see who can be more draconian and more fascist in their proposals. Along with prisoners and criminal defendants single mothers, immigrants and school children are also on the Republican hit list. So what do all these groups have in common'? They're poor, tend to be disenfranchised and don't have a voice anyone with power in this country has to listen to. So the sky 's the limit. PLN will provide updates on the legislation as it progresses.

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