When Philip Heymann left the Justice Department and began citing the expensive illusions in the Senate crime bill, James Carville, adviser to the president, told the nation on Nightline, "I wish we could get this guy out there every day. I mean, I like nothing better than a guy going to teach at Harvard saying, "I left this administration because it's just too tough on crime.'
Carville had no specific rebuttals to Heymann's grave concerns about the crime bill. Yahoos live on sound bites, not substance. One of the provisions that alarms Heymann is three strikes _ three violent felonies _ and you're imprisoned for life.
Nearly all criminologists agree that around the age of 40, violence has been burned out of most criminals with that kind of record. The proposed new federal law, therefore, will cost large sums to house these lifers who will become geriatric prisoners.
In response to Heymann's criticism of the popular three-strikes-and-you're-out mantra, White House Communications Director Mark Gearan, presumably speaking for the president, said: "You'll have to defend that position to the parents of Polly Klaas and others who have been victims of crimes (by repeat violent offenders)." Twelve-year-old Polly Klaas was kidnapped and murdered last year, allegedly by a twice-convicted kidnapper while he was on parole. But the language of the Senate bill also includes offenses against property as "crimes of violence" counting toward the third strike.
It is reassuring to see how the White House provides guidance to the populace by judiciously illuminating complex issues.
Also soft on crime _ by the standards of Carville and Gearan _ are those judges, increasing in number, who are greatly disquieted by the more than 100 provisions in the Senate bill that create new federal crimes. Among them, as the New York Law Journal has pointed out, are "nearly all street crimes where a gun is used, crimes related to youth-gang activities, and certain domestic violence cases."
Federal District Judge Whitman Knapp grimly foresees that this wholesale expansion of federal crimes will "flood the federal courts with work they can't handle." Other judges point out that time for constitutional cases will be truncated and civil cases will be reached way down the line.
Opposition to another section of the Senate bill _ one that might have been conceived in North Korea _ would give Carville and Gearan a field day. Imagine anyone trying to protect the right of due process for "terrorists."
Under this amendment, introduced by Sen. Robert Smith, R-N.H., aliens living in the United States could be deported if the attorney general believes they are dangerous to national security. When granted permission from a special court, the attorney general could use secret evidence against them. At a hearing, the alien would not be told the charges against him or the identity of his accusers if the court so decided on the basis of national security.
No hearings were held on this amendment to the crime bill, and it was passed without a recorded vote. There have never been many civil libertarians in the Senate, and when it comes to being tough as nails on crime, even the few left take cover.
Still, there may be members of the House who will understand how un-American this section _ "Removal of Alien Terrorists" _ is. In a 1950 dissent, Supreme Court Justice Robert Jackson wrote: "The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of the informer _ undetected and uncorrected."
There is much more in the Senate crime bill that will do little, if anything, to reduce crime but will create a boom in the building of prisons.
Attorney General Janet Reno used to be eloquent in opposing mandatory minimum sentences that lead to the imprisonment of many non-violent criminals and _ now that the Senate has added yet more mandatory minimums _ will lead to the overstuffing of the new prisons as well as the old.
During the Senate debate on the crime bill, however, the attorney general was not heard from publicly on mandatory minimums and other grotesque parts of the crime bill. She was silenced by the White House. It is also a pity that Philip Heymann didn't speak out while he was still in the Justice Department. But maybe James Carville is right. It wouldn't have mattered _ not with the Clinton administration and its gun-slingers ready to draw on anyone who coddles criminals.
Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights.
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