At Session Midpoint, an Update on Legislation

H.R. 1658, The Civil Asset Forfeiture Reform Act of 2000

The preamble to H.R. 1658, the Civil Asset Forfeiture Reform Act of 2000, best describes Congress' intent with this bill: "to provide a more just and uniform procedure for federal civil forfeitures." H.R. 1658 was passed by the House mid-way through the first session of the 106^th Congress. In March of the second session, after negotiations among the House and Senate Judiciary Committees and the Department of Justice, the Senate passed its own version of the bill, which the House agreed to in April. The President signed the bill, P.L. 106-185, April 25, 2000.

Representative Henry Hyde (R-IL), the bill's sponsor, called H.R. 1658 "the culmination of a 7-year effort to reform our nation's civil asset forfeiture laws." Representative John Conyers (D-MI) said that while "it is important that we have asset forfeiture. . . this put it under controls that have not existed before." Among other provisions, the bill provides for the appointment of counsel for indigents if they are represented by appointed counsel in related criminal cases and for the payment of counsel by the Judiciary; the return of property pending final disposition of a civil forfeiture case if continued possession by the government would cause substantial hardship and a 30-day time limit for judges to act upon motions and complaints seeking release of this seized property; and for property owners to sue the federal government for compensation for damage to their property when they prevail in civil forfeiture actions. The bill would also require the government to prove, by a preponderance of the evidence, that the property is subject to forfeiture, not, as is currently the case, to simply make an initial showing of probable cause, that then shifts the burden of proof to the claimant.

"This bill," Hyde said, "is one we can all be proud of. It returns civil asset forfeiture to the ranks of respected law-enforcement tools that can be used without risk to the civil liberties and property rights of American citizens. We are all better off that this is so."

S. J. Res. 3, Victims' Rights Amendment

At the request of Senators Strom Thurmond (R-SC) and Charles E. Schumer (D-NY), Judge William W. Wilkins (4^th Cir.), chair of the Judicial Conference Committee on Criminal Law, wrote to express the Conference view of S. J. Res. 3, the Victims' Rights Amendment to the Constitution. On numerous occasions, the Conference has made known its preference for a statutory approach as opposed to a constitutional amendment on victims' rights. Most recently, Judge Emmett Sullivan (D.D.C.) appeared as a representative of the Judicial Conference before the House Subcommittee on the Constitution to testify on H.J. Res. 64, a constitutional amendment to protect the rights of crime victims. S. J. Res. 3 stalled on the Senate floor after debate and the bill's sponsors withdrew the legislation, effectively killing the proposal for the remainder of this Congress. However, the sponsors vowed to bring the legislation forward next year.

Juvenile Crime/Gun Control, H.R. 1501, S. 254

The stalled progress of the juvenile crime bill prompted House members last month to vote to urge House-Senate negotiators to meet soon. In August of the first session, the Senate took up H.R. 1501, substituted the text of its own bill, S. 254, then requested a conference on the bill with the House. Little progress has been seen since, largely because of controversial gun control provisions included in the Senate's version.

Project Exile, H.R. 4051

Last month, the House passed and sent to the Senate H.R. 4051, the Project Exile: The Safe Streets and Neighborhoods Act of 2000. According to the bill's sponsor, Representative Bill McCollum (R-FL), the bill would provide incentive block grants for state criminal justice systems totaling $100 million over 5 years. To qualify, a state must ensure a mandatory minimum 5-year prison sentence without parole for anyone who uses or carries a firearm during any violent crime or serious drug trafficking crime or for a previously convicted violent felon who is caught possessing a gun. The mandatory minimum sentence must be in addition to the punishment provided for the underlying crime. Last month, a similar bill, S. 2390, was introduced in the Senate.

McCollum cited the success in Richmond, Virginia of Project Exile, a program created in 1997. In that program, firearms offenses normally prosecuted in state court were prosecuted in federal court so that federal mandatory minimum firearms offense sentences would apply. Similar programs now have been adopted by many large U.S. cities nationwide. However, Representative Robert C. Scott (D-VA) argued that H.R. 4051 "goes down the failed road of mandatory minimum sentencing," saying there is no convincing evidence that mandatory minimums and Project Exile have reduced violent crime to any greater extent than the decrease in Virginia generally without Project Exile.

The Judicial Conference agreed to take no position on proposed legislation to expand intensive firearms prosecutions programs like Project Exile in Richmond. The Conference did recommend that any such legislation, if enacted, provide for a proportionate increase in judicial resources to the affected federal courts. While the Conference has not had the opportunity to consider H.R. 4051, the Conference opposes mandatory minimum sentences, as they undermine the U.S. Sentencing Guidelines by producing sentencing disparity.

H.R. 1869, the Stalking Prevention and Victim Protection of 1999

As introduced last year, H.R. 1869 substantially expands the current interstate stalking statute to cover e-mail and Internet communications. Under the bill's provisions, a federal court would issue at sentencing a protective order designed to protect the victim from further stalking by the convicted person. The House passed H.R. 1869 at the end of the first session. At the beginning of the second session, an identical bill (S. 2011), was introduced in the Senate, where it enjoys bipartisan support.

Asbestos Bill, H.R. 1283, S. 758

H.R. 1283 would establish within the Department of Justice a new Office of Asbestos Compensation (OAC), which would have jurisdiction over proceedings to determine if a claimant is entitled to compensation and the amount of the compensation for asbestos-related injuries. Claimants would need to meet specified medical criteria, in order to receive a certificate of medical eligibility. Only those with certificates could pursue compensation either within the OAC or in any state or federal court of competent jurisdiction. Administrative law judges within the OAC would conduct hearings and determine whether compensation is to be awarded and the amount, if the claim is not otherwise settled. H.R. 1283 permits review of the OAC's decisions in the U.S. Court of Federal Claims, with subsequent review by a court of appeals. The House Judiciary Committee reported the bill favorably by a vote of 18-15. However, the Department of Justice opposes H.R. 1283, and in the Senate, Majority Leader Trent Lott has indicated there will not be sufficient time to consider its related bill, S. 758, this year.

Private Property Rights, H.R. 2372, S. 1028

In February, Administrative Office Director Leonidas Ralph Mecham wrote on behalf of the Judicial Conference to express the Judiciary's concerns regarding H.R. 2372, which is intended to expedite federal court consideration of takings cases. The bill "would alter deeply ingrained federalism principles by prematurely involving the federal courts in regulatory proceedings involving property that have historically been decided by state and local administrative bodies or courts. By relaxing the current requirement of ripeness in takings cases and limiting a federal judge's ability to abstain from hearing certain cases, the bill also may adversely affect the administration of justice and delay the resolution of property claims." The Department of Justice and the Conference of Chief Justices also have communicated their objections to H.R. 2372. Nevertheless, the bill was passed by the House in March. No action has occurred on the related bill in the Senate, S. 1028.

Cocaine Penalties/Bankruptcy Reform Act H.R. 833

The House passed its bankruptcy reform bill, H.R. 833, in May 1999. The bill, while authorizing 18 new temporary bankruptcy judgeships and extending certain existing judgeships, also would impose certain requirements on bankruptcy clerks and the Administrative Office to collect data from bankruptcy filings to report to Congress, and to maintain access to debtors' federal tax returns. The Senate passed a companion bill, S. 625, containing similar requirements, but also including the Powder Cocaine Sentencing Act of 2000, which would reduce the threshold amounts necessary to trigger the mandatory minimum penalties for possession of cocaine to one-tenth of their current levels. In March 2000, Director Mecham wrote to members of the House and Senate Judiciary Committees expressing the Judicial Conference opposition to the mandatory minimum sentence and mandatory restitution provisions of H.R. 833. "If passed," Mecham wrote, "the Act would ultimately significantly increase the numbers of persons eligible for mandatory minimum sentences, further exacerbating the destructive effect mandatory minimums have upon the federal criminal justice system." The House and Senate now are informally conferencing their bills.