U.S. GOVERNMENT PRINTING OFFICE

67–363 CC WASHINGTON : 2000

S. HRG. 106–725

OVERSIGHT OF THE CRIMINAL DIVISION OF THE

DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

THE RESPONSIBILITIES AND ACTIVITIES OF THE CRIMINAL DIVISION

OF THE DEPARTMENT OF JUSTICE

JULY 27, 1999

Serial No. J–106–40

Printed for the use of the Committee on the Judiciary

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

STROM THURMOND, South Carolina, Chairman

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

CHARLES E. SCHUMER, New York

JOSEPH R. BIDEN, JR., Delaware

ROBERT G. TORRICELLI, New Jersey

PATRICK J. LEAHY, Vermont

GARRY MALPHRUS, Chief Counsel

GLEN SHOR, Legislative Assistant

(II)

(III)

C O N T E N T S

STATEMENT OF COMMITTEE MEMBER

Page

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina ........... 1

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama ............................. 3

Feingold, Hon. Russell D., U.S. Senator from the State of Wisconsin ................ 22

Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont .......................28, 30

Schumer, Hon. Charles E., U.S. Senator from the State of New York ............... 33

CHRONOLOGICAL LIST OF WITNESSES

Statement of James K. Robinson, Assistant Attorney General, Criminal Division, U.S. Department of Justice, Washington, DC .......................................... 7

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Robinson, James K.:

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 10

APPENDIX

QUESTIONS AND ANSWERS

Responses of Assistant Attorney General James K. Robinson to questions

from Senators:

Leahy ................................................................................................................. 45

Hatch ................................................................................................................. 66

Feingold ............................................................................................................. 70

Thurmond .......................................................................................................... 82

ADDITIONAL SUBMISSION FOR THE RECORD

Letter to Senator Strom Thurmond, from Paul G. Cassell, professor of law,

University of Utah, dated July 23, 1999 ............................................................ 162

(1)

OVERSIGHT OF THE CRIMINAL DIVISION OF

THE DEPARTMENT OF JUSTICE

TUESDAY, JULY 27, 1999

U.S. SENATE, SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 2:02 p.m., in room

SD–628, Dirksen Senate Office Building, Hon. Strom Thurmond

(chairman of the subcommittee) presiding.

Also present: Senators Sessions, Schumer, Leahy, and Feingold

[ex officio.]

OPENING STATEMENT OF HON. STROM THURMOND, A U.S.

SENATOR FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. The subcommittee will come to order.

I am pleased to hold this oversight hearing on the Criminal Division of the Department of Justice. The Criminal Division is charged

with some of the most critical functions of the Justice Department.

It represents the front lines in the Federal Government’s fight

against crime. It must confront a host of serious crimes, including

the war on drugs, money laundering, terrorism, child pornography,

and gun crimes. It enforces over 900 Federal laws and oversees the

activities of the 94 U.S. attorneys throughout the country.

Mr. Robinson assumed the position of Assistant Attorney General for the Criminal Division over 1 year ago, after it had been vacant since August 1995. We are pleased that this essential Division

has an able chief to lead it today.

The Congress has made every effort to support the needs of the

Justice Department. The Department’s budget has risen dramatically in recent years. It has almost doubled, from close to $11 billion in 1994 to almost $21 billion in 1999. We will continue to support the Department of Justice in an appropriate manner. However, there are issues of concern that we feel should be discussed.

The Judiciary Committee for some time has confronted the Department on the enforcement of the law on voluntary confessions.

Section 3501 of title 18 was passed by the Congress soon after the

Miranda v. Arizona decision in an attempt to determine when a

voluntary confession is admissible in court. In the recent case of

United States v. Dickerson, the Fourth Circuit held that the statute

was constitutional, and criticized the Justice Department for refusing to permit its career prosecutors to use this law against criminals. If the Dickerson case is considered by the Supreme Court, the

Justice Department should urge the Court to uphold this law.

2

Earlier this year, this subcommittee held an oversight hearing on

this matter and heard from Reagan and Bush administration officials who told us that those administrations did not have a policy

against the enforcement of section 3501. Unfortunately, the Justice

Department chose not to appear at that hearing, so I hope we can

discuss this issue today.

Another important issue is the enforcement of the death penalty

on the Federal level. The American public overwhelmingly supports

the death penalty. While 38 States now permit the death penalty

and many routinely use it, the death penalty has not been carried

out on the Federal level since 1963. In 1988, the Congress enacted

a death penalty provision for murder involving drug kingpins, and

in 1994 greatly expanded the number of death penalty-eligible

crimes.

In response to the 1994 law, Attorney General Reno established

an elaborate internal review committee to consider whether Federal prosecutors are permitted to seek the death penalty. The Protocol provides for formal input by the defense attorney to the review committee, but apparently not equal input from a representative for the victim. I hope that this review process at Main Justice

does not discourage U.S. attorneys from seeking the death penalty

in appropriate cases.

Regarding another issue, this subcommittee, in conjunction with

Senator Sessions’ Subcommittee on Youth Violence, held a hearing

earlier this year on the lack of gun prosecutions during much of the

Clinton administration. It is much more effective to fight violent

crime by separating dangerous criminals from guns than to restrict

the rights of law-abiding citizens to bear arms.

This subcommittee has also held hearings this year on issues

that the Department and I agree could be quite detrimental to effective Federal law enforcement. Last week, we held a hearing on

the use of Federal asset forfeiture and its critical role in taking the

profits out of many crimes, including drug offenses. Although reform is needed in this area, we cannot do so in such a way that

it gives criminals the upper hand.

Earlier this year, the subcommittee discussed the McDade legislation, which requires that Federal prosecutors follow all State ethics rules in all jurisdictions in which they operate. It is important

that we continue to review this issue to make certain that the implementation of McDade does not interfere in areas such as complex undercover investigations or Federal grand jury practices.

As several Senators stated during Mr. Robinson’s confirmation

hearing early last year, it is important for Mr. Robinson to appear

before the Judiciary Committee frequently to discuss the important

issues facing the Criminal Division.

Mr. Robinson, we are pleased to have you with us today.

Senator Feingold, do you have a statement?

Senator FEINGOLD. Mr. Chairman, I will wait until the question

time to make my statement and ask questions.

Senator THURMOND. Senator Sessions.

3

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM

THE STATE OF ALABAMA

Senator SESSIONS. Thank you, Mr. Chairman. I am delighted to

have Mr. Robinson here. I enjoyed talking with him before he was

confirmed, and recognize the importance of the office that you hold.

As I noted at the time, you have not had intensive experience as

a prosecutor, but 3 years as a U.S. attorney. Traditionally, the

Criminal Division chief has been virtually a career prosecutor, but

I don’t think that is disqualifying and I did vote for you. I do believe that in a few areas you have shown some progress under your

leadership, just having a brief opportunity to review some of the

numbers in this year’s report.

I would like to mention a few things that I think are important

before we really get down to questions. I believe it is important for

the Department, something that we as taxpayers ought to be concerned with, and I hope that you will focus on it.

I think I have a few charts. Let’s look at the Triggerlock chart,

maybe, first. We had hearings set for a Monday in my subcommittee on Project Exile and the work that is done, which is sort of like

Project Triggerlock in Richmond, that your Department of Justice

was doing very well, and we wanted to highlight that.

On the Saturday before that hearing, the President made it his

radio address, the subject, had our witnesses there with him, and

he directed them to increase prosecutions, work together to increase the prosecution of criminals with guns. Later within the

month, the Attorney General appeared, and I frankly did not feel

like at all she had instigated any significant change in policy.

Even with this year’s numbers—there was a modest increase—

you can see that the Federal prosecutions of firearms laws according to your own statistical data are down about 46 percent. That

is a dramatic drop since 1992, and I think it gives us pause when

we are told repeatedly we have got to pass some new Federal gun

law if those laws are not being prosecuted.

The school yard law—don’t take a firearm on a school yard—we

made that a Federal crime, but there were less than 10 cases nationwide prosecuted under that. So I think the Department needs

to look at that, as well as look at the numbers of persons who are

prosecuted who attempt to purchase a firearm in violation of the

law when they have a prior criminal history and are prohibited, the

attempt to purchase if they are discovered by the instant check

process at the gun dealer’s store. None of those apparently are

being prosecuted.

And frankly I am not of the opinion that ATF can claim they are

totally capable of investigating that. I think it takes a partnership

between the Criminal Division and the ATF to identify the cases

that ought to be prosecuted and set about to prosecute them.

I also was looking at the assistant U.S. attorneys. That is your

bread and butter, your front-line troops, the people who really do

the job. Those numbers have gone up in full-time equivalents since

1993. One year is a drop, but you are now up to 4,600, almost

4,700, a 12-percent increase. And I think you as a manager, the

person accountable for the taxpayers to utilize those magnificent

prosecutors, need to make sure we are getting good work from

them.

4

I did notice from looking at your statistical report that since

1993, tort-related work hours per attorney have dropped significantly, from 309 hours in 1993 to 218 hours in 1998. That is a 29-

percent decrease in the number of tort-related hours worked per attorney, from 309 to 219. So I think you really have to look at that

and the leadership has got to come from the top.

And I know you should respect U.S. attorneys, and I do, but

within limits they have got to respond to the national leadership

of the President. He appoints them and he has a right to expect

that they aggressively pursue a criminal agenda.

Finally, I would mention to you, and maybe we can talk about

it later, my concern about bankruptcy fraud as part of our bankruptcy bill. There is quite a bit of fraud there. Judges tell me there

is blatant fraud sometimes and they have a difficult time getting

those investigated. There are no more than one or two prosecutions

per district nationwide per year, and I think it is something we can

improve.

Mr. Chairman, thank you for your leadership. People care about

a lot of things, but they are concerned about public safety, they are

concerned about fraud and rip-off of the taxpayers. This Criminal

Division is the national agency most responsible for dealing with

those issues and we need to make sure it is as productive as it possibly can be.

Thank you, sir.

[The charts of Senator Sessions follow:]

5

6

7

Senator THURMOND. Thank you very much.

The panel consists of Mr. James Robinson, the Assistant Attorney General for the Criminal Division. Mr. Robinson earned a

bachelor’s degree at Michigan State University and a law degree

from Wayne State University. He has been an associate and partner in the Detroit law firm of Honigman, Miller, Schwartz and

Cohn. Mr. Robinson also served as U.S. Attorney for the Eastern

District of Michigan. Before assuming his current position, he was

dean and professor of law at Wayne State University Law School.

Mr. Robinson, we are happy to have you with us and would be

glad to hear from you at this time.

STATEMENT OF JAMES K. ROBINSON, ASSISTANT ATTORNEY

GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

Mr. ROBINSON. Mr. Chairman, thank you very much. I am delighted to be back here, Senator Sessions, with you as well, and

also happy to talk with Senator Feingold at the appropriate time.

If it is permissible, I would like to make a brief opening statement.

I won’t read my whole testimony, which will be submitted for the

record.

I am pleased to appear before the subcommittee today on behalf

of the Criminal Division of the U.S. Department of Justice, and I

thank the Chair and the members of the subcommittee for this opportunity to describe the responsibilities and activities of the

Criminal Division, including a number of initiatives we are undertaking to deal with new challenges facing Federal law enforcement.

For the past 13 months, it has been my privilege to serve as the

Assistant Attorney General for the Criminal Division, a post frankly I was interested in securing ever since I was the U.S. attorney

in Detroit from 1977 to 1980. Because I was a Democrat, there was

a little drought in between, so my opportunity for public service in

the Justice Department had to wait a while. And although I tried

to get the job in 1992, it didn’t come until later, but I was delighted

for the opportunity to serve.

During the period of my service for the last 13 months, I have

come to respect deeply the commitment, integrity and dedication of

the career attorneys in the Justice Department, the outstanding assistant U.S. attorneys, as Senator Sessions has mentioned, and the

career lawyers in the Justice Department, particularly in the

Criminal Division. They are the backbone of the Justice Department. They are here day in and day out doing the people’s work.

There are five deputy assistant attorneys general in the Criminal

Division with whom I am privileged to work everyday. Among

them, they have more than 125 years of combined prosecutorial experience, although, as Senator Sessions knows, I would have to asterisk that by indicating that Deputy Assistant Attorney General

Jack Keeney has 48 of those 125 years. He is a real gem and has

made a major contribution over a lifetime to the Justice Department.

When I arrived a little more than a year ago, a number of important positions within the Criminal Division were vacant. I made it

a high priority to seek out outstanding prosecutors to fill these positions as head of the Fraud Section, the Organized Crime Section,

8

the Office of International Affairs, Chief of International Training,

one of the five deputy assistant attorney general positions, and also

the current head of the Capital Crimes Unit in the Division. These

are outstanding lawyers who will serve long after I am gone from

this position. I am confident that I have made good choices and

that they will serve the country well during many years to come.

The mission of the Criminal Division, as alluded to briefly by the

chairman, is to develop, enforce and exercise general oversight with

regard to the prosecution of Federal criminal law, working, of

course, with U.S. attorneys in the 94 judicial districts throughout

the United States. We also work with criminal prosecutors in the

other divisions of Main Justice that have criminal responsibility in

Tax and Antitrust and the Civil Division as well.

We oversee the enforcement of over 900 Federal criminal statutes, establish national law enforcement policy for the Department,

and advise the Attorney General on matters concerning Federal

criminal law. We give priority in the Department and in the Criminal Division to crime threats that have a Federal or a uniquely national dimension, including, of course, drug trafficking, organized

crime, terrorism, white-collar crime, alien smuggling, gang-related

violence, and crimes occurring in Indian country, among others.

We also aggressively investigate and prosecute elected and appointed officials at all levels of the government who abuse their office and the public’s trust. Many of our most effective law enforcement initiatives involve Federal, State and local enforcement working cooperatively together.

As crime and justice issues increasingly transcend national

boundaries, our international presence in the Criminal Division

has grown dramatically in recent years. The Division also provides

training and technical assistance to foreign law enforcement agencies. We negotiate and implement international treaties for mutual

legal assistance and for extradition, and engage in joint law enforcement investigations with other countries.

The Department has taken a proactive approach to developing

criminal law policy. An excellent example of this is the Attorney

General’s Council on White–Collar Crime, of which I serve as the

Executive Director. Membership in the Council includes representatives from regulatory, investigative and prosecutive agencies

throughout the Federal Government. The Council attempts to identify fraudulent trends, to sponsor training and enforcement initiatives, and to develop programs aimed at the prevention of fraud.

Attorney General Reno believes that we should use our law enforcement experience and perspectives to assist in preventing

fraudulent activities, in addition to our important responsibilities

to respond to crimes after they occur.

The Department has also been proactive in identifying and developing a response to the growing problem of Internet fraud. On May

4, 1999, the President announced the Department’s Internet Fraud

Initiative which is aimed at preventing fraud, in addition to prosecuting it when we find it. The growth of the World Wide Web presents a whole new world of opportunity for international and national criminals, and it is something that we feel very strongly that

the Department needs to get ahead of the curve on.

9

Throughout the past year, Criminal Division attorneys have been

instrumental in obtaining important convictions across the Nation.

Attorneys from the Terrorism and Violent Crime Section were instrumental in the indictment and transfer to United States custody

in June 1998 of Mohammed Rashed on charges relating to his alleged bombing in 1982 of a Pan Am flight from Tokyo to Honolulu.

Terrorism and Violent Crime Section attorneys also played a key

role in the development and indictment of the case against two Libyan operatives for the bombing of Pan Am Flight 103. They will be

heavily involved in assisting Scottish prosecutors during the trial

of that case which is scheduled to occur in the Netherlands.

Attorneys from our Organized Crime and Racketeering Section

stepped in when the local U.S. attorney’s office was recused in a

corruption case in Texas and gained the convictions of former members of the Houston City Council. They are also involved in tracking new and deadly Asian and Russian organized crime groups, a

growing threat that we are working hard to get in front of.

Another important role fulfilled by the Criminal Division is that

of national coordinator in major enforcement initiatives. The Criminal Division focuses its narcotics enforcement efforts and resources

to complement the efforts of other participating agencies in regional, national and international narcotics enforcement initiatives.

In close cooperation with the U.S. attorneys, the Drug Enforcement Administration, the FBI and other Federal, State and local

investigative agencies, the Criminal Division provides guidance, direction and resources at the national level for drug investigations

and prosecutions.

Most of the regional and national level investigations and prosecutions coordinated and supported by the Department of Justice

are conducted as part of the Organized Crime Drug Enforcement

Task Force program. This past year has been the single most productive year in OCDETF’s history. The number of investigations

initiated in fiscal year 1998 was 1,356, more than the number

which were initiated in fiscal year 1996 and fiscal year 1997 combined.

In fiscal year 1998, there were 3,502 OCDETF indictments and

informations returned, compared to 2,401 in 1997, and 10,064 defendants were charged, compared to 7,619 in fiscal 1997. Already,

in fiscal year 1999, 1,095 new OCDETF investigations have been

initiated, and more than 2,109 indictments or informations have

been returned and 5,622 defendants charged.

Because criminal groups so often cross jurisdictional and geographic boundaries, the level of coordination among Federal, State

and local law enforcement evidenced by OCDETF is an important

part of any effective enforcement effort. When criminals cross international borders, as seems to be so often the case these days, this

international cooperation is essential.

As international crime has grown because of the expansion of

such technologies as the Internet and the relative ease of international travel, we in the Criminal Division have been working

hard to develop effective strategies to deal with international and

transnational crime. The effort has led to unprecedented levels of

coordination and cooperation with foreign law enforcement. Recently, attorneys from our Child Exploitation and Obscenity Section

10

participated in an international investigation and prosecution of

child pornography passed over the Internet.

In keeping with the idea of no ‘‘safe haven’’ for criminals outlined

in the administration’s international crime control strategy, we are

also involved in encouraging our international neighbors to pass

laws criminalizing wrongful behavior so that criminals will have no

safe place to hide. Attorneys from our Office of International Affairs negotiate mutual legal assistance treaties with foreign countries, and we handle extraditions and evidence requests for local

prosecutors across the Nation. We also are involved in international training with foreign prosecutors and foreign law enforcement, and we increasingly assign attorneys from the Criminal Division throughout the world to assist in these international efforts.

I want again to thank the chairman and the subcommittee for

the support for the Criminal Division over many years and this opportunity to provide a brief overview of our activities. I am proud

of what we have been able to accomplish during the last 13 months

on my watch, and confident that the Criminal Division will continue its proud history of excellence and dedicated service on behalf

of the people of this great country.

The issues that have been raised by the Chair and by Senator

Sessions are ones that I would have anticipated that we would discuss, and I certainly have made an effort to try to prepare myself

to deal with those issues and hopefully others that you may have.

To the extent that there are matters, for which I can’t provide the

immediate answer, I would be happy to try to get that information

to you as quickly as possible.

I know we said a year ago that it would be a good thing for the

Assistant Attorney General for the Criminal Division to come back,

and I appreciate this opportunity. We probably could have done it

sooner, but I am delighted for this chance and hopefully we can

continue to have this opportunity for this important oversight activity.

If I could ask the Chair that my written remarks be accepted as

part of the record?

Senator THURMOND. Without objection, so ordered.

Mr. ROBINSON. Thank you very much, and I would be happy to

do the best I can to respond to the questions that you might have.

Since I anticipated Senator Sessions’ questions, if you would like

I would be happy to talk about that issue or any others that you

would like to raise with me, Mr. Chairman.

[The prepared statement of James K. Robinson follows:]

PREPARED STATEMENT OF JAMES K. ROBINSON

Mr. Chairman and Members of the Subcommittee: I am pleased to appear before

you today on behalf of the Criminal Division of the United States Department of

Justice. I would like to thank the Chairman and the members of the Subcommittee

for this opportunity to briefly describe the responsibilities and activities of the

Criminal Division, including a number of initiatives we are undertaking to deal with

new challenges to federal law enforcement.

The mission of the Criminal Division is to develop, enforce, and exercise general

oversight for the prosecution of federal criminal laws, in cooperation with the

United States Attorneys, except those that are specifically assigned to other Divisions. The Division oversees enforcement of more than 900 federal statutes; develops

and facilitates implementation of national law enforcement policy; advises the Attorney General on matters concerning the criminal law; monitors sensitive areas requiring coordination, such as Title III wiretaps, attorney subpoenas, attorney fee

11

forfeitures, and international law enforcement; provides leadership for cooperative

federal-state-local law enforcement efforts; and coordinates law enforcement issues

relating to national security.

We give priority attention to crime threats that have a Federal or uniquely national dimension, including drug trafficking, organized crime, terrorism, white collar

crime, alien smuggling, gang-related violence, and crimes occurring in Indian country. We also aggressively investigate and prosecute elected and appointed officials

at all levels of government who abuse their office and the public’s trust. And as

crime and justice issues increasingly transcend national boundaries, our international presence has grown. We provide training and technical assistance to foreign law enforcement agencies, negotiate and implement international treaties for

mutual legal assistance and extradition, and engage in joint law enforcement investigations with other countries.

VIOLENT CRIME

Our strategies in seeking to reduce violent crime, especially organized crime and

drug and gang-related violence, include efforts to fully implement the Violent Crime

Control and Law Enforcement Act of 1994, as well as other relevant statutes. We

seek to identify, penetrate and dismantle major and emerging organized criminal

enterprises, including street gangs engaged in illegal activity. We also support comprehensive attacks on violent crime through the establishment of multi-agency,

intergovernmental task forces.

Organized Crime

With critical assistance from our Organized Crime and Racketeering Section

(OCRS), John A. Gotti, son of the former boss of the Gambino La Cosa Nostra family in New York City, was recently indicted and convicted along with a number of

his associates. In the last two years, RICO and other indictments have been brought

against La Cosa Nostra bosses and captains in Miami, Boston, Chicago, Detroit,

Youngstown, Las Vegas, Los Angeles and New York. A number of convictions have

been already obtained and other trials are pending.

Labor Racketeering

In January 1999, the Department of Justice extended its agreement with Laborers’ International Union of North America (LIUNA) to conduct a program of internal

reform directed at the removal of La Cosa Nostra (LCN) from within LIUNA. OCRS

continues to closely monitor the program. During the three-year period since the

original agreement was entered into in January 1995, LIUNA has achieved numerous reforms, including removal of over 100 persons from LIUNA for barred conduct,

the adoption of an ethical practice code for union officers, and the creation of a permanent internal union disciplinary structure. Thus far, 13 members and 29 associates of the LCN have been removed from LIUNA. We achieved similar success in

connection with a consent order involving the leadership of the Hotel and Restaurant Workers Union.

Russian Organized Crime (ROC)

A defendant named Ludwig Fainberg recently pleaded guilty to RICO charges including allegations that he had attempted to purchase a Soviet submarine to smuggle drugs from Colombia. Oleg Kirillov, a leader of the organized crime group based

in Russia’s third largest city, Nizhny–Novgorod, was convicted after trial on charges

including RICO, visa fraud, narcotics offenses, extortion, and money laundering in

the Southern District of Florida. The Nizhny-Novgorad organized crime group is

considered by law enforcement to be a very significant ROC group.

In the Eastern District of New York several members of the Gufield/Kutsenko brigade, a group with ties to Vyachaslav Ivankov, the incarcerated leader of

Organisatsiya and a close associate of Solntsevskaya leader Sergei Mikhailov, were

indicted for RICO extortion, hostage taking, arson, fraud, and trafficking in women.

Asian Organized Crime

On the West Coast, prosecutions continue relating to robberies of numerous computer chip companies. The Los Angeles and San Francisco Organized Crime Strike

Force Units have brought 12 indictments charging over 120 defendants with offenses arising from the robberies of over 100 computer chip companies resulting in

the loss of over $40 million. Over 70 defendants have been convicted, and charges

against other defendants are pending. In a related computer chip robbery indictment brought in Seattle, Washington, six of eight defendants have been convicted.

Two members of a Fukienese gang based in New York pled guilty in the Central

District of California to hostage taking relating to the kidnapping of the 17 year old

12

son of a wealthy Taiwanese businessman. This case involved significant investigative cooperation between police in the People’s Republic of China (PRC) and United

States law enforcement. This cooperation went well beyond the mere sharing of information. Aspects of the scheme, including the ransom drop, were carried out in

the PRC, and defendants were simultaneously arrested in the United States and the

PRC. The boy was rescued. The PRC will try the defendants that were arrested in

the PRC, and the prosecutors in the PRC and the United States continue to cooperate with each other.

Terrorism

Our Terrorism and Violent Crime Section (TVCS) is involved in the development,

implementation, and support of nationwide programs, consistent with the Anti-Violent Crime Initiative, designed to upgrade violent crime enforcement efforts generally and to address evolving violent crime problems. These programs focus priority

attention on such violent crime issues as gang and firearms violence. Additionally,

Section attorneys participate directly in a limited number of important prosecutions

where their expertise can be of particular assistance. For example, TVCS attorneys

participated in the development and trial of a major motorcycle case in Tampa and

a major street gang case in Los Angeles.

TVCS is an integral part of the government’s extensive efforts relating to both

international and domestic terrorism, focusing on prevention, crisis response, case

development, and prosecution. TVCS serves as the Department’s coordinator of crisis response efforts, including managing and handling training for Attorney Critical

Incident Response Group prosecutors and a designated Crisis Management Coordinator for each U.S. Attorney’s Office. Within hours of the tragic bombing of the

Murrah Federal Building in Oklahoma City in 1995, two TVCS attorneys proceeded

to the scene to assist in the crisis response and case development efforts, and subsequently in the prosecution of the case. Additionally, TVCS is deeply involved in

preparations to address the threat posed by chemical, nuclear, and biological terrorism.

Terrorist attacks on U.S. interests overseas must, in most instances, be prosecuted in the District of Columbia. TVCS attorneys, together with the U.S. Attorney’s Office in D.C., have direct responsibility for the development and prosecution

of such cases. In fulfilling this role, TVCS attorneys were instrumental in the indictment and transfer to U.S. custody in June 1998 of Mohammed Rashed on charges

relating to his alleged bombing in 1982 of a Pan Am flight from Tokyo to Honolulu.

Similarly, TVCS attorneys were involved in the 1997 prosecution and conviction of

Tsutomu Shirosaki for the 1986 rocket attack on the U.S. Embassy in Jakarta, Indonesia. TVCS attorneys also played a key role in the development and indictment of

the case against two Libyan operatives for the bombing of Pan Am Flight 103, and

will be heavily involved in assisting Scottish prosecutors during the trial of the case

in the Netherlands.

In the domestic terrorism area, a TVCS attorney and a Fraud Section attorney

have been directly involved in the prosecution of the notorious Montana Freemen

defendants, who engaged in a series of violent and fraudulent acts culminating in

a protracted standoff with the FBI. Another TVCS attorney co-tried a RICO case

against two white supremacists in Arkansas, which recently resulted in the conviction of both defendants and the imposition of the death penalty against one.

NAZI WAR CRIMES

The Office of Special Investigations, which handles all cases involving suspected

participants in Nazi-sponsored acts of persecution committed during the period

1933–45, was undefeated in litigation during the past 12 months, winning court decisions in twelve of these uniquely challenging cases. OSI won 4 denaturalization

cases in federal district courts, 4 deportation cases in U.S. immigration courts, 2 appellate cases before the Board of Immigration Appeals, and major subpoena enforcement cases in federal district courts in New York and Florida against two individuals who refused to testify about their wartime activities. The unit also prevailed

in an important declaratory judgment action in Pennsylvania. During the past year,

OSI succeeded in removing 4 suspected Nazi criminals from the United States.

During the past year, OSI also commenced 4 new prosecutions (one

denaturalization case, which had been set aside by a Court of Appeals (Demjanjuk)

and three deportation cases). The unit also conducted trials in two denaturalization

cases, one of which resulted in judgment for the government and the other of which

has not yet been decided. Following the enactment in October of the Nazi War

Crimes Disclosure Act, OSI’s Director was appointed to represent the Department’s

inter-agency working group established to coordinate Executive Branch compliance

with the Act’s requirement that the Government locate, declassify and make public

13

substantially all records in government possession relating to suspected Nazi criminals and to assets misappropriated from Holocaust victims. OSI has already provided major logistical, historical and financial support to this recently created Working Group.

NARCOTICS ENFORCEMENT

Although most narcotics enforcement efforts in the United States occur at the

state and local level, the overwhelming majority of illicit drugs consumed in the

United States originate overseas. The vast majority of illicit drugs entering the

United States enter across our 2,000 mile southern land border and the adjoining

coastal areas. In support of the goals and objectives of the President’s National Drug

Control Strategy and the Department of Justice Drug Control Strategic Plan, the

Criminal Division focuses its narcotics enforcement efforts and resources to complement the efforts of other participating federal departments and agencies, emphasizing regional, national, and international narcotics enforcement initiatives.

Under the leadership of the Attorney General—and in close coordination with the

U.S. Attorneys, DEA, FBI and other federal, state, and local investigative agencies—the Criminal Division provides guidance, direction, and resources at the national level for drug investigations and prosecutions. The Attorney General’s Southern Frontiers Committee and its associated initiatives including the Southwest Border Initiative and the Caribbean Initiative exemplify the Division’s role in assisting

in the coordination and direction of our policies in the fight against drug trafficking

and abuse. On an operational level, in close cooperation with the U.S. Attorneys’ Offices, the Special Operations Division, and other investigative agencies, the Division

coordinates the litigation and enforcement activities of the Southwest Border Initiative and oversees the Organized Crime Drug Enforcement Task Force (OCDETF)

program.

Southwest Border Initiative

The Southwest Border Initiative (SWBI) was initiated by the Criminal Division,

the border U.S. Attorneys, DEA, and FBI in 1994–1995. The original purpose of the

SWBI was to develop a regional strategy to disrupt and dismantle the most significant factions of the Mexican Federation that were importing cocaine, methamphetamine and other illicit drugs into the U.S. and that were involved in the corruption

of public officials at U.S. border crossings in the Southwest. Shortly after its inception, other federal law enforcement agencies, such as the U.S. Customs Service and

the INS/Border Patrol, joined in the implementation of SWBI. The initiative expanded in scope to include an anti-corruption task force effort and to re-focus attention on the strategic use of asset forfeiture as a law enforcement tool against the

trafficking organizations. The national investigations and prosecutions undertaken

as part of the SWBI are coordinated and supported by the Special Operations Division and the Criminal Division.

As a result of the successes achieved under the rubric of SWBI in the past year

or so, we have identified and targeted the emerging trafficking threats who use our

Southwest border as their gateway into the U.S. Participating investigators and

prosecutors continue to identify and prioritize Colombian and Mexican drug trafficking targets subjects and their United States-based criminal counterparts for investigation and share rather than compete for resources and information. In addition

to criminal organizations trafficking in illegal drugs, included among the new targets are major international criminal organizations specializing in money laundering and trafficking in precursor and essential chemicals.

Special Operations Division

The Special Operations Division (SOD) is a joint national coordinating and support entity comprised of agents, analysts, and prosecutors from DEA, the FBI, the

United States Customs Service, and the Criminal Division. SOD coordinates and

supports regional and national-level criminal investigations and prosecutions targeting the major criminal drug trafficking organizations threatening the United States.

Where appropriate, state and local investigative and prosecutive authorities are

fully integrated into SOD-coordinated drug enforcement operations. The drug investigative databases of all of the participating agencies are fully available within the

SOD. The Criminal Division’s Narcotic and Dangerous Drug Section coordinates

SOD investigations with Assistant U.S. Attorneys across the country to ensure that

each district involved in a nationwide investigation is informed as to the actions

taking place in the other districts and the interrelationship of each district’s targets

in the overall criminal conspiracy. The Criminal Division ensures agreement on a

consensus plan of attack, so that large, nationwide trafficking groups are taken

down in a single, well-timed enforcement action. SOD will soon expand to include

14

a Financial Group to focus on the financial activities of the criminal trafficking organizations and their ill-gotten assets.

The Organized Crime Drug Enforcement Task Force Program

Most of the regional and national level investigations and prosecutions coordinated and supported by the SOD are conducted as part of the OCDETF program.

In describing the OCDETF program, I must first highlight the dramatic increase in

the OCDETF program participation over the past year, the single most productive

year in OCDETF’s history. The number of investigations initiated in fiscal year 1998

was 1,356, more than the number in the past two years combined. The 1998 investigations targeted those criminal organizations responsible for the greatest volumes

of drugs and the greatest incidence of violence in the United States. Also in fiscal

year 1998, there were 3,502 OCDETF indictments/informations returned, compared

to 2,401 in fiscal year 1997, and 10,064 defendants charged, compared to 7,619 in

fiscal year 1997. The OCDETF conviction rate was 88 percent, with 58 percent of

OCDETF defendants receiving sentences of more than five years. Already in fiscal

year 1999, 1,095 new OCDETF investigations have been initiated, and more than

2,109 indictments/informations returned and 5,622 defendants charged. (OCDETF

statistics reported as of July 20, 1999.)

This extraordinary growth in the program reflects the Department’s total commitment to what the Deputy Attorney General calls its ‘‘premier’’ counterdrug effort.

The program has seen such growth because all the participating federal law enforcement agencies and the 93 United States Attorneys recognize that the most effective

weapon against sophisticated drug trafficking organizations is the OCDETF approach—multi-agency, often multi-jurisdictional, comprehensive investigations.

OCDETF cases target organizations responsible for the importation and distribution of all classes and categories of drugs and target the major drug trafficking and

money laundering networks in virtually every region of the globe. OCDETF investigations initiated in fiscal year 1998 range from those coordinated by SOD to those

focused on street corner gangs, which bring homicides, shootings, and fear to our

cities’ neighborhoods.

Money Laundering

Enforcement efforts against a criminal trafficking organization will not succeed

unless the organization’s financial infrastructure is identified and targeted and its

proceeds and instrumentalities seized and forfeited both at home and abroad. In attacking the financial component of drug trafficking, U.S. law enforcement and regulators exploit two crucial points of vulnerability for the drug money launderers.

First, the sheer volume and bulk of the illicit cash generated by the sale of illicit

drugs in the United States, and the need of the traffickers to smuggle this cash out

of the United States or place it into the legitimate financial system offer U.S. law

enforcement a large and valuable target to pursue.

Second, although the international drug traffickers generally produce, process,

and transport their illicit drugs from and through locations with only a limited U.S.

law enforcement presence, once the illicit drugs are sold in the U.S., the traffickers

and their domestic or international money launderers, immediately face the full effect of the U.S. law enforcement and regulatory anti-money laundering regimes. To

exploit these potential trafficker vulnerabilities, the Criminal Division and United

States Attorneys’ Offices, working with the Department of the Treasury, the U.S.

Postal Inspection Service and federal regulators, rely upon an interagency and coordinated national approach that targets specified sectors of the financial system

through which drug proceeds are laundered.

ASSET FORFEITURE

Asset forfeiture is a powerful law enforcement weapon that the Justice Department uses in its battle against domestic and international drug trafficking organizations. Using asset forfeiture, the Department can attack the economic infrastructure

of these criminal organizations by denying them the profits of their ill-gotten gains.

To maximize the use of asset forfeiture, the Department is integrating forfeiture in

its law enforcement plan to strike drug traffickers at the source of their economic

power.

Our Asset Forfeiture and Money Laundering Section (AFMLS) has participated in

the investigation and prosecution of professional money launderers for the Cali and

Juarez cartels and numerous Mexican and Venezuelan bankers who assisted in

laundering over $80 million in drug proceeds. Three Mexican banks and over forty

individuals have been indicted on money laundering charges. In a related civil action, AFMLS filed a civil forfeiture complaint in the District of Columbia seeking

forfeiture of approximately $12.3 million in drug proceeds and laundered money

15

that was deposited into numerous foreign bank accounts. Also after nearly seven

years of litigation in the largest global forfeiture case, a total of $691 million has

been distributed to the victims of the BCCI bank fraud.

In this era of globalization, the Department’s efforts to disrupt and dismantle

drug trafficking organizations mandates international cooperation at all levels.

While working with other countries to develop international forfeiture cases, the

Criminal Division actively promotes international forfeiture cooperation to halt the

flow of illegal proceeds across borders and into financial institutions through the negotiation of bilateral forfeiture cooperation and asset sharing agreements.

Asset sharing provides both foreign countries and the United States with the resources to maximize the law enforcement potential of the asset forf6iture laws. The

United States has entered into agreements with foreign countries that allow for cooperation in tracing, seizing, forfeiting, and sharing of assets. Since the beginning

of our sharing program in 1989 through fiscal year 1998, more than $192.9 million

has been forfeited by the United States with the assistance from 23 foreign countries. Of that amount, approximately $66.7 million has been shared with those cooperating countries.

WHITE COLLAR CRIME

White collar crime not only victimizes our citizens but has an insidious and corrupting effect on our commercial and public institutions. We are attempting to deter

and combat it by identifying, investigating, and then successfully prosecuting high

priority white collar criminal offenses nationwide, as well seeking forfeiture of the

illegal proceeds and restitution to victims. We are aided in these efforts by better

use of intelligence that helps us identify emerging areas of white collar crime and

by enhanced cooperation with foreign governments in investigating and prosecuting

international syndicates engaged in white collar crime.

The Attorney General’s Council on White Collar Crime

The Attorney General’s Council on White-Collar Crime (Council) was established

by Order of the Attorney General in July 1995 as an interagency body to coordinate

the focus of federal law enforcement efforts to combat white-collar crime. It is

chaired by the Attorney General and the Assistant Attorney General of the Criminal

Division serves as the Executive Director. The membership of the Council includes

representatives from regulatory, investigative and prosecutive agencies. The Council

attempts to identify fraudulent trends, sponsor training and enforcement initiatives

and develop programs aimed at the prevention of fraud. We have focused at different times on telemarketing scams, pension fraud, securities fraud by brokers,

counterfeit aircraft parts, the unlawful sale of CFC for air conditioners, criminal tax

enforcement, counterfeit software and cyber crimes. Currently, the Council is examining the nature and extent of problems which are emerging with the growth of the

internet. We have also greatly improved the training in advanced white-collar crime

areas of all federal law enforcement agents and prosecutors. The Council brought

together for the first time the FBI Academy, the Federal Law Enforcement Training

Center and the National Advocacy Center to develop joint modular training opportunities.

The Attorney General firmly believes that a greater emphasis on fraud prevention

reinforces the traditional mission of law enforcement in combating fraud, since a

primary goal of enforcement activity is to prevent the occurrence of future crimes.

The Council seeks to sponsor and publicize fraud prevention initiatives by all its

member agencies.

Health Care Fraud

The prosecution of health care fraud is a major Department of Justice priority.

Health care fraud siphons billions of dollars away from federal health care programs

that provide essential health care to millions of elderly, low-income, and disabled

Americans, as well as to the families of the members of our armed services. In addition, health care fraud and abuse affects private insurers and—most significantly—

consumers of health care. Fraudulent billing practices may further disguise inadequate or improper treatment, by billing for services not rendered or rendered by

unlicensed and unqualified practitioners. Other schemes, such as kickbacks, may

corrupt medical providers’ decision making by placing profit above patient welfare,

leading to grossly inappropriate medical care, unnecessary hospitalization, surgery,

tests and equipment. We are particularly concerned about schemes which affect the

quality of medical care. For this reason we are turning our attention to fraud in

the managed care and nursing home environments, where incentives to save money

may result in the ‘‘underprovision’’ of medical and nursing services, to the detriment

of patients’ health.

16

The Criminal Division’s Fraud Section plays a leadership role in the Department’s

health care fraud enforcement effort. In addition to handling a docket of significant

health care fraud cases, the Fraud Section chairs a national level, multi-agency

working group, develops and provides guidance and advice to other departmental

components on a range of health care fraud enforcement policy and legal issues, and

serves in a vital liaison function with other federal and state agencies involved in

health care fraud enforcement activities.

The Department’s health care fraud enforcement strategy has achieved notable

success. In the past fiscal year alone, the Department obtained criminal convictions

of 326 defendants in 219 criminal cases, and there were awarded $480 million as

a result of criminal fines, civil settlements, and judgments. In the past two fiscal

years, the Department has collected $1.2 billion in criminal and civil judgments and

settlements in health care fraud cases.

Elder Fraud

Since 1993, when the Department announced the first nationwide undercover operation devoted to telemarketing fraud, Operation Disconnect, the Department has

demonstrated a sustained commitment to investigating and prosecuting those who

engage in telemarketing fraud, particularly when directed at vulnerable segments

of the population. Federal prosecutors and agents have seen numerous telemarketing fraud cases in which older men and women have been targeted as potential victims and suffered devastating financial losses. The Department has therefore

taken a variety of measures to prosecute telemarketing fraud more effectively: conviction of nearly 600 individuals in Operation Senior Sentinel (1993–1996); prosecution of nearly 800 individuals in Operation Double Barrel (1996–1998); and establishment of a National Tape Library that now houses more than 13,000 consensual

tape recordings of fraudulent telemarketers’ ‘‘pitches.’’ In addition, the Department

has developed a number of telemarketing fraud prevention projects, including the

inclusion of telemarketing fraud Web pages on its Web site and the development

of a pilot project called Elder Fraud Prevention Teams (EFPT). The EFPT project

seeks to develop a coordinated approach—involving the AARP and federal, state,

and local law enforcement and regulatory agencies—to outreach and prevention programs that focus on various frauds directed at the older population in various communities.

Internet Fraud

The Department of Justice has also been proactive in identifying and developing

a response to the growing problem of Internet fraud. On May 4, 1999, for example,

the President announced the Department’s Internet Fraud Initiative, which involves

a six-part approach to combating Internet fraud:

1. Coordination of expanded enforcement efforts. This involves use of interagency

working groups—such as the Telemarketing and Internet Fraud Working Group—

and other mechanisms to coordinate law enforcement activities against Internet

fraud at all levels of government.

2. Coordinated training on Internet fraud for federal, state, and local prosecutors

and agents. This involves the Department’s funding of Internet/telemarketing fraud

training for state and local law enforcement, and similar training for experienced

federal prosecutors and agents. The Department is now preparing training for federal and local prosecutors through its National Advocacy Center in Columbia, South

Carolina.

3. Improving federal analysis and use of Internet fraud information. This involves

collaboration between the FBI and the National White-Collar Crime center to establish the Internet Fraud Complaint Center, a national center for analysis and strategic use of information on Internet fraud schemes. It also envisions closer ties and

formal referral procedures for the FTC, the SEC, and other agencies for possible

criminal violations by Internet fraud schemes.

4. Developing information on the nature and scope of Internet fraud. This involves

possible development of a method for reliably estimating the volume of various

forms of Internet fraud, and sharing of information on current Internet schemes

with the Department’s law enforcement and regulatory agency partners.

5. Supporting and advising on federal Internet fraud prosecutions. This involves

improving mechanisms for coordination and communication among federal prosecutors, and for supporting federal prosecutions with prosecutive manpower and other

resources.

6. Public outreach and education. This involves a two-track approach in appropriate collaboration with the private sector: seeking technological means for reducing the incidence of fraud; and keeping the public informed about current schemes

and how to handle them. In particular, the latter track involves the Department’s

17

publication of Web pages devoted to Internet fraud, exploring the developing of public-service and other information on Internet fraud, and expanding on current public-private partnerships to combat the problem.

Public Corruption

The Department remains deeply concerned about public corruption. An excellent

example of the kind of complex investigation and prosecution of local corruption undertaken by the Criminal Division involved former Houston City Councilman Ben

Reyes, former Houston Port Commissioner and lobbyist Elizabeth Maldonado, and

other current and former Houston City Council members. Reyes and Maldonado

were each convicted of conspiracy and federal program bribery after a three-month

jury trial in the Southern District of Texas. Reyes, a member of the City Council

for 16 years, and a very influential community leader, was the ringleader of the conspiracy and the initial target of a lengthy undercover investigation conducted by the

Federal Bureau of Investigation. This matter was the subject of intense media coverage in Houston throughout the investigation and trials, and was handled by the

Division’s Public Integrity Section after recusal of the United States Attorney’s Office.

The Criminal Division is also actively involved in international efforts to combat

corruption, including work with the Organization for Economic Cooperation and Development and the Council of Europe. The Division also participated in the Vice

President’s Global Forum on Fighting Corruption. The forum included representatives from 90 governments and examined the causes of corruption and practices that

are effective to prevent or fight it. The Division has conducted briefings and training

sessions in a number of different countries.

The Independent Counsel Act

The Criminal Division’s Public Integrity Section was charged with assisting the

Attorney General in fulfilling her obligations under the Independent Counsel Act.

This includes conducting initial inquiries and preliminary investigations pursuant

to the provisions of the Act, and then making appropriate recommendations through

my office to the Attorney General. Since July 1, 1998, the Division has participated

in more than a dozen independent counsel matters. During the year the Division

has also assisted independent counsels with their investigations. Notwithstanding

the expiration of the Independent Counsel Act on June 30, 1999, the Division will

continue to work with the sitting independent counsels to provide support for their

ongoing investigations.

Computer Crime

As we enter the 21st Century, we must confront the increasing sophistication of

criminals and new technologies that expand the potential for criminal conduct while

at the same time impeding our ability to bring criminals to justice. Since being appointed head of the Criminal Division a little over one year ago, one of my priorities

has been to extend the focus and resources of the Division to the new methods and

types of crimes that are an increasing threat to the nation.

One of those is computer crime. The incidence and complexity of computer crime

continue to increase rapidly as greater numbers of people develop proficiency in manipulating electronic data and navigating computer networks, and as worldwide access to the Internet continues to skyrocket. As a result of emerging computer technology over recent years, significant attention has been focused on the vulnerability

of our critical national infrastructure to cybercrime and cyberterrorist attacks, including electronic espionage. The nation has become increasingly reliant on computer networks to support every critical aspect of American life, including telecommunications, power delivery, transportation, delivery of government services,

and banking and finance. Cyberterrorists do not have to worry about obtaining a

visa or smuggling explosives into the country. From any location on the planet, they

can launch a devastating attack of ones and zeros against U.S. networks in a fashion that could shut down telecommunications services, power grids, major transportation hubs, or other vital public services. As the National Research Council, an arm

of the Academy of Sciences, recognized several years ago: ‘‘Tomorrow’s terrorist may

be able to do more damage with a keyboard than with a bomb.’’

Consequently, the Department has undertaken a Computer Crime Initiative

under the leadership of the Computer Crime and Intellectual Property Section

(CCIPS). This initiative, originally adopted in 1991, directed CCIPS predecessor, the

Computer Crime Unit, to ascertain the scope of the problem, coordinate law enforcement cybercrime efforts, provide training to agents and prosecutors, develop an

international response, propose and comment on legislation, and formulate policies

relevant to the investigation and prosecution of computer crime. Additionally, the

Department has designated at least one Assistant United States Attorney in each

18

district to serve as a Computer and Telecommunications Coordinator, or CTC. These

individuals, working closely with CCIPS, prosecute high-tech cases and serve as a

technical resource for their entire office. We have devoted such resources to hightech crime because we recognize the threat of cybercrime and cyberterrorism, and

we know that no country has more to lose from criminals attacking computer networks, or using such networks to facilitate traditional offenses.

As I noted, electronic criminals can cross borders with impunity, whereas law enforcement must respect national boundaries. For this reason, it is particularly important that law enforcement address such cases as quickly and efficiently as possible. There are two issues seriously handicapping international law enforcement in

the fight against electronic crimes: (1) establishing the identity and location of network criminals; and (2) acquiring evidence stored on data networks that span international borders.

To address these problems, for the last several years, the U.S. has been active

in the Subgroup on High-Tech Crime of the G8 countries and in the Cybercrime

Committee of the Council of Europe. The G8 subgroup focuses on practical solutions,

with an emphasis on tracing communications, outreach to industry, and expanding

the network of high-tech law enforcement experts available 24 hours a day to respond to urgent requests in cases involving electronic evidence. The Cybercrime

Committee of the Council of Europe, in which the U.S. participates as a deeply-involved observer country, is drafting a convention focusing on cyberspace offenses,

international cooperation, the 24/7 emergency network, and related issues. The U.S.

will remain actively engaged in these arenas.

Intellectual Property Rights Initiative

We are also undertaking an Intellectual Property Rights Initiative, which will

give greater priority to intellectual property crime. In the last several years, the

magnitude, severity, and impact of intellectual property crime has grown dramatically. It is now widely reported by law enforcement officials around the world that

criminal syndicates are exploiting the high profits and low risks from copyright and

trademark piracy to finance other criminal enterprises, including narcotics trafficking. As a world leader in intellectual products, the United States has become the

target of choice for thieves of material protected by copyright, trademark or trade

secret designation, and the economic loss to American industries is enormous.

Our initiative calls for giving increased priority to prosecution of high-quality intellectual property cases in selected districts, as well as increased training for investigators and prosecutors and support of the Custom Service’s border efforts in this

area. We also are working for changes in the Sentencing Guidelines to recognize the

seriousness of intellectual property crimes and to calculate more accurately the economic loss caused by such crimes.

CHILD EXPLOITATION AND OBSCENITY

The Child Exploitation and Obscenity Section regularly works with the Federal

Bureau of Investigation and its Innocent Images national initiative, the U.S. Customs Service and its Cybersmuggling Squad, and the U.S. Postal Inspection Service

on child pornography projects. The Section has been actively involved with the Innocent Images Project since its inception and has worked for many years with the

Customs Service on its child pornography projects, most recently on Operation

Cheshire Cat, an international child pornography ring investigation.

As we approach the new century, it is becoming increasingly apparent that we

need to work together with other countries to develop a global approach to combat

the victimization of children from child pornography and trafficking for criminal sexual exploitation. Toward that end, the Child Exploitation and Obscenity Section has

become more involved in international law enforcement training and policy development in both of these areas, in addition to the work the Section does domestically

on these issues. At the end of September, the United States, along with the European Union and Austria, will sponsor a global conference on combating child pornography on the Internet in Vienna, Austria. The Section is working toward developing

international protocols for the investigation and prosecution of child pornography

cases.

To assist the law enforcement personnel and the prosecutors in the United States

Attorney Offices, the Section worked with the Executive Office of the United States

Attorneys to implement a toolkit that includes a laptop computer and assorted software to enhance the capabilities of investigators and prosecutors to work these

cases successfully. Attorneys from the Section serve as legal advisors to the Internet

Crimes Against Children Task Force Program. Ten jurisdictions, involving local and

state law enforcement agencies, have established task forces with grants from the

Office of Juvenile Justice and Delinquency Prevention in the Office of Justice ProVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 JULY27.TXT SJUD2 PsN: SJUD2
19

grams to investigate Internet crimes against children in their respective communities. Funds are available this year to establish task forces in additional communities.

Also the Department has become more active in combating trafficking in women

and children. Our expanded efforts include working with other agencies to address

these problems, including the Departments of the Interior and Labor to investigate

trafficking issues in the Commonwealth of the Northern Marianas. As in the area

of child pornography, the Division provides training, both domestically and internationally, on the issue of trafficking. For example, training was provided for the

Baltic countries in Warsaw last spring. Another training session is scheduled for

later in the year for representatives from the Czech Republic and Bulgaria. We are

working on training programs to address these issues in other parts of the world,

particularly Asia and Latin America.

Our experiences investigating and prosecuting these child exploitation issues domestically enable us to share our knowledge with other countries to help them better address these situations in their countries. The Internet knows no boundaries,

nor should our efforts to protect children be limited to our borders.

INTERNATIONAL ISSUES

Modern technological advances and the ease of international travel, communication, and access have also made the problems of transnational crime and international fugitives priorities for the Criminal Division. The Office of International Affairs (OIA), which is responsible for negotiating and handling all incoming and outgoing international extradition and mutual legal assistance requests, involving state

and local as well as federal authorities, has seen an extraordinary increase in activity in recent years as criminals have become ever more mobile and creative in their

search for safe havens from justice for themselves and their assets and their manipulation of legitimate trade markets and transnational institutions to their own illicit

advantage. OIA has responded with a program to modernize our bilateral treaties

and international conventions to enhance their flexibility and ability to deal with

increasing and increasingly sophisticated patterns of international criminal activity.

In addition to expanding the network of Mutual Legal Assistance Treaties, OIA

is working to modernize extradition between nations as the most logical, effective,

and equitable mechanism for ensuring that the interests of justice are served in the

international arena. This includes acceptance by other nations of the principle of extraditing their own citizens for serious crimes. Consistent successes have been realized in the last year in this regard, including recent notorious cases involving the

surrender by Mexico of Jose Luis Del Toro, Jr., alleged hired killer of the mother

of quadruplets in Florida, and the arrest in the United Kingdom of three Egyptian

nationals charged with involvement in the terrorist bombing of our Embassies in

Kenya and Tanzania last summer. Successes in spreading the word on the benefits

of extraditing nationals have been achieved with Israel, Colombia, and the Dominican Republic involving changes or clarification of their domestic laws to allow such

extraditions; the European Union endorsing and encouraging the proposition; and

such countries as Bolivia, Argentina, and Paraguay signing or implementing new bilateral treaties that make no exception to extradition on the basis of the fugitive’s

citizenship.

As its caseload and responsibilities have expanded, OIA and the Criminal Division

have found that merely having treaty relationships are not enough in a number of

foreign jurisdictions and that it has become extremely important to our success in

dealing with our international counterparts and in assisting our U.S. law enforcement colleagues posted abroad to station Department of Justice attorneys at certain

Embassies and Missions overseas. We currently have such judicial attache positions

in Rome, Bogota, Mexico City, and Brussels (for the European Union) and detail positions in London and Paris. Due to the perceptible advantages to our extradition

and mutual legal assistance relationships from having a ‘‘hands-on’’ Justice Department attorney in-country, we also plan, and hope to obtain authorization for, new

positions in Asia, Latin America, the Caribbean, and the Middle East. Using such

well-located resources, the Criminal Division will be far better equipped to deal with

the enormously increasing problem of international crime and its devastating effects

on the citizens and residents of this country.

International Criminal Investigative Training Assistance Program

The International Criminal Investigative Training Assistance Program (ICITAP)

was created in 1986 to train criminal investigators in Latin America. Today, ICITAP

is a comprehensive law enforcement development program that works in more than

20 countries world-wide. ICITAP currently provides two kinds of assistance programs: technical assistance to develop entire police forces during peace operations

20

and specialized training to improve existing police forces in emerging democracies.

ICITAP utilizes of the skills of state and local police officers as well as federal

agents. Assistance programs promote internationally accepted principles of human

rights, the rule of law and democratic police practices.

ICITAP is involved in a number of challenging new assignments. At the request

of the Department of State, ICITAP will assist the Organization for Security and

Cooperation in Europe to train 3,000 new, local police in Kosovo. To fulfill U.S. commitments under the Wye River Accords, ICITAP is assisting the Palestinian police

to collect illegal weapons in the West Bank and Gaza. In Albania, ICITAP will train

the Rapid Intervention Force that polices Albania’s sensitive border with Kosovo. In

Indonesia, ICITAP is providing technical assistance in civil disorder management.

In El Salvador, an ICITAP ‘‘911 emergency response program’’ has significantly reduced crime in the country’s second largest city. ICITAP is also involved in important assistance programs in the former Soviet republics, South Africa and Latin

America.

Overseas Prosecutorial Development, Assistance and Training (OPDAT)

The Division provides Overseas Prosecutorial Development, Assistance and Training (OPDAT) rule of law assistance in Africa, Central and Eastern Europe, Latin

America and the Caribbean, and in the Newly Independent States, including the

Russian Federation through reimbursement from the Department of State. In Africa, OPDAT efforts first assessed the criminal justice systems in Rwanda and Liberia

and then placed a resident legal advisor in Rwanda and will shortly place one in

Liberia. Our assistance programs focus on the enormous problems of backlogged felony cases and the pretrial detention of 130,000 accused in Rwanda and will improve

the competence and efficiency of prosecutors and judges in Liberia. In Central and

Eastern Europe, OPDAT activities complemented its on-going, criminal justice technical assistance and training programs in Poland and Latvia, run by resident legal

advisors, by placing legal advisors in Romania and Bosnia, and also by initiating

assistance activities in Lithuania and Bulgaria. Through OPDAT we began a skills

development program for Albanian prosecutors and judges, and assistance with the

development of organized crime strike forces for Hungarian prosecutors and investigators. In Latin America and the Caribbean (Haiti), the OPDAT program concentrated on the training and deployment of new prosecutors, magistrates, and

judges and provided development assistance to seven model prosecutors offices. A

joint US–Mexican training program for prosecutors and investigators involved in

counter-narcotics operations was started and thus far two joint training sessions

have been held, one in Mexico and the other at the Department’s training center

in Colombia, South Carolina. The model of justice sector institution building underway in Colombia, run by a resident legal advisor, was replicated through the commencement of OPDAT programs in Argentina, Brazil, Mexico, and Venezuela. In the

Newly Independent States, we expanded our criminal justice assistance program, already underway in the Russian Federation where we have a resident legal advisor,

by commencing assistance activities in Armenia and Moldova, as well as in Georgia

and Ukraine, where resident legal advisors have begun their duties. In addition, we

started programs which will address criminal justice sector development needs in

Kazahkstan, Kyrgyzstan, and Uzbekistan.

The OPDAT program also provided a forum for comparative law dialogue to promote international legal assistance by hosting more than 600 international visitors

from countries throughout the world who came to the United States to gain an appreciation of our legal system. We provided professional programs in the form of

specially tailored discussions and workshops, enhanced in numerous cases by presentations in foreign languages by our multi-lingual attorneys.

CONCLUSION

We will face all the challenges that I have described today recognizing that the

Department of Justice is a crime-fighting partner with other federal, state and local

agencies, and that we must work together strategically to define our roles and coordinate our efforts so that our scarce resources can have the greatest impact toward reducing crime and violence across America.

Mr. Chairman and Members of the Subcommittee, I hope that this overview is

helpful to your understanding of the work of the Criminal Division. I would be

pleased to answer any questions that you may have.

Senator THURMOND. Mr. Robinson, it is widely known that Attorney General Reno is personally opposed to the death penalty, while

at the same time she personally decides whether to seek the death

21

penalty in any Federal case. I understand that the Attorney General has authorized the death penalty to be sought in less than 30

percent of the over 400 cases that she has reviewed.

The question is: has her personal opposition had any impact on

the number of death penalty cases that have been sought?

Mr. ROBINSON. Mr. Chair, I believe it has not, and I think your

numbers are right. As I understand it, there have been 417 decisions made after the Death Penalty Protocol was developed in

death-eligible cases. The Attorney General agreed with the recommendations in U.S. attorneys in 377 of those 417 cases.

I know that a letter was submitted to the Chair on June 24 that

provides additional information as to the breakdown of the ones

where there might have been disagreement. My understanding is

that the Attorney General decided to seek the death penalty in 19

of the cases in which there was disagreement and decided not to

seek the death penalty in 18 cases in which there was disagreement.

So my sense is that the Attorney General has kept her undertaking by making the calls on the basis of the record before her and

the very careful process that is followed in these extraordinarily

important cases that obviously need great attention.

Senator THURMOND. The Attorney General has established a formal Protocol that requires that a review committee at Main Justice

independently evaluate each case that is eligible for the death penalty, and receives formal input from defense counsel. As a former

member of the review committee has written, ‘‘Federal prosecutors

wishing to prosecute a death penalty case must now consult with

and suffer intense review by Main Justice at the highest levels.’’

The question is: do you think this procedure may have the effect

of discouraging some Federal prosecutors from seeking the death

penalty?

Mr. ROBINSON. It is my sense, Mr. Chair, that it does not. I think

everyone involved in this decision, investigators and prosecutors,

realizes that the ultimate decision as to whether to seek the death

penalty is a very different kind of decision than any other a prosecutor can make. It has serious consequences. The decision, to the

extent the penalty is carried out, is final, as final as any could be.

I think the process followed by the Department, which we have

tried to continue to improve upon, is to assure a sense of uniformity in the approach and that these decisions receive very careful

scrutiny. But, nevertheless, as I indicated when I appeared before

the committee in my confirmation hearing, I think in certain cases

the death penalty is an appropriate penalty.

The process is designed to see to it that the decision is made fairly, but there should be no deterrence of Federal prosecutors to seek

the death penalty in appropriate cases. I certainly haven’t seen instances in which prosecutors have indicated to me that they were

disinclined because of the process to seek the death penalty in appropriate cases. And I think most people would expect there would

be a very careful, deliberative process in making this most important decision.

Senator THURMOND. Under the Protocol, the U.S. attorney

consults with the lawyer for the defendant before submitting a case

that is eligible for the death penalty to the Justice Department for

22

review. Then the defense lawyer has the opportunity to make a formal presentation to the review committee at Main Justice to try to

convince it not to recommend the death penalty.

The question is: do you think that most State prosecutors provide

for such formal involvement by the defense counsel before the prosecutor decides whether to seek the death penalty?

Mr. ROBINSON. I have to say I would be glad to try to get an answer to that. I am not sure I could speak on behalf of all of the

States, or express full knowledge of what is done in the various

States throughout the United States. But I would expect that every

State that makes this kind of a decision would have a process by

which they would conduct a very careful review.

And because the Federal death penalty is relatively recent, I

think the sense is that we are entering into a process that is new.

For example, when I was a U.S. attorney 20 years ago, obviously

with a very few exceptions the death penalty was not available. So

this is a process the Justice Department wants to approach by

making this decision in a very careful way. I think that is the intent and I think it is appropriate that we be careful.

Senator THURMOND. Does the review committee hear from a representative for the victim in the same manner as it hears from the

lawyer for the defendant? In other words, does the victim side have

the opportunity to make an argument to the review committee just

as the defendant does?

Mr. ROBINSON. I think the answer is no. Input is sought from the

victims, and appropriately so when Federal prosecutors make this

kind of a decision. But I don’t believe that there is a formal process

where representatives of the victims actually appear before the review committee. But I will double-check to make sure that is the

case, but I think the answer is no, certainly not in the same way

that this process applies to defense counsel.

Senator THURMOND. Thank you.

Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you very much, Mr. Chairman.

Mr. Robinson, thank you for being with us today. Although I

come at the issue from quite a different perspective, I am pleased

that the chairman has raised the issue of the death penalty, and

that is what I would like to ask you about during my time.

I am a strong opponent of the death penalty. I believe it is a form

of cruel and unusual punishment, and I believe it is wrong for a

civil society to rely on such a harsh punishment no matter what

the gravity of the offense committed. I hope someday we can join

the majority of nations in the world that have abolished the death

penalty in law or in practice. In the interim, however, it is vitally

important that those States who use the death penalty, as well as

the Federal Government, do so in a fair manner, free of even a hint

of capriciousness or arbitrariness.

So, Mr. Robinson, my first question is it is my understanding

that the Attorney General established a review committee in 1995

to review and recommend whether she should authorize a Federal

prosecutor to seek the death penalty when a death-eligible Federal

23

crime is committed, and the chairman already talked about that.

This review apparently includes some opportunity for defense counsel to argue against authorization of the death penalty.

In an article dated June 14, 1999, entitled ‘‘Who Lives, Who

Dies: DOJ Seeks Consistency in Capital Cases But Defense Bar

Cites Vagaries,’’ the Legal Times discussed this process. The Legal

Times noted that since 1995, the number of cases reviewed has

skyrocketed from 28 in 1995 to 166 in 1998. With the rise in the

number of cases reviewed, Attorney General Reno has also increased incrementally each year the number of cases she has authorized for death penalty prosecution.

In 1998, the Attorney General authorized Justice Department

prosecutors to seek the death penalty for 44 of the 166 cases

brought before her, or 27 percent of the cases. Since 1998, more

than half of the federally authorized prosecutions in which the

death penalty has been sought have been against black defendants

and 75 percent against minorities.

Since 1995, however, the Justice Department appears to be authorizing the death penalty against white defendants at a higher

rate than against minority defendants. From January 1995 to August 1998, the Attorney General authorized the death penalty for

41 percent of the white defendants and only 23 percent of the minority defendants. This disparity may indicate that the death penalty is being applied in an arbitrary and capricious manner.

How do you explain these numbers and the disparity in the race

of persons who are subject to death penalty prosecution?

Mr. ROBINSON. Senator, the one thing I want to point out is that

the race of a death-eligible defendant in a capital case is not made

available to the capital review committee. I am not suggesting they

never learn of it, but intentionally that information is withheld

from the capital review committee.

There are situations in which that information comes to the attention of members of the committee either because counsel raises

it or in situations in which racial animus is a specific element of

the case involved. But there is a conscious effort to try to remove

the issue of race from the case-specific evaluation of whether or not

in a particular case, given the mitigating and aggravating circumstances present, the death penalty is appropriate to seek on behalf of the Department of Justice.

Senator FEINGOLD. Let me ask you as a follow-up, have there

been any conversations within the Justice Department to address

this disparity in the application of the death penalty? Is this something that is of concern to the Department?

Mr. ROBINSON. Well, there is no doubt that these issues are appropriate to look at and appropriate to try to understand. This has

been a subject of concern in the sense of wanting to be absolutely

sure that any kinds of arbitrary factors are not creeping their way

into the decisionmaking process. It certainly would be inappropriate for race or other arbitrary factors to play any part in the decisionmaking process.

Senator FEINGOLD. So in that spirit I do think it is vital, and I

am sure you agree, that we monitor and maintain data on the application of the death penalty. I would like to know more about the

Federal death penalty authorization and prosecution process, so I

24

have a series of questions that I will submit to you that ask for

data on the number and race of the defendants that have come before the Attorney General’s review committee, as well as the eventual outcome of the cases broken down by U.S. attorney jurisdiction.

I will submit those questions and ask that you respond in writing

at your earliest convenience. They will include questions, as I have

indicated, having to do with the number and race of the defendants

who have come before the committee, the eventual outcome of the

cases, the number of death-eligible crimes committed in each U.S.

attorney’s jurisdiction in which U.S. attorneys have requested authorization to use the death penalty, and so on. So I would submit

those to you and ask for a response later.

[The questions of Senator Feingold are located in the appendix:]

Senator FEINGOLD. What portion of the defendants before the review committee—and this is something the chairman was alluding

to—are represented by defense counsel? And for those that are not

represented by counsel, why are they without counsel?

Mr. ROBINSON. I would have to double-check. I would expect in

a death-eligible case it would be a very rare circumstance, and I

am not aware offhand of any of those that would be appearing

without any counsel at all, but I will double-check.

Senator FEINGOLD. I would appreciate that, and you could hopefully submit it with the other answers, or even perhaps sooner.

On a follow-up on that, what is the Justice Department’s actual

position on whether a defendant has a right to counsel during the

committee review process?

Mr. ROBINSON. When you say a right to counsel, obviously they

have a right to have counsel there. You are talking about a right

to be represented by counsel during that process. I would be very

surprised if they aren’t represented by counsel, and if the Senator

is aware of situations that I am not thinking of where somebody

has gone through this process—this is at the charging stage, this

is early in the process. They have a right, obviously, to counsel and

would be represented by counsel in any criminal proceeding.

Senator FEINGOLD. Well, I am taking that answer as saying that

the Justice Department does believe that a defendant has a right

to counsel during the committee review process. If that is not the

case, I hope you will let me know right away.

Mr. ROBINSON. I certainly will get back to you.

Senator FEINGOLD. Finally, I am going to shorten this, Mr.

Chairman, and ask to put the whole set of written questions in the

record. All I want to do is point out that there is a great deal of

activity around this country in State legislatures. In some of the

States, you would almost be surprised where this is happening,

calling for at least a moratorium on the death penalty in a number

of States, including the State of Illinois, where a number of clear,

almost tragic mistakes have been made where it has become clear

that certain individuals who were under the death sentence could

not have committed the crime and they are now free, fortunately.

I am afraid the same thing has not happened in other cases.

So I will spare you all the verbiage, except to say what effort, if

any, has been made by the Justice Department to review death row

25

inmate cases and ensure that not a single innocent person sits on

Federal death row?

Mr. ROBINSON. I think it is a very legitimate concern and we look

at this very carefully, but I will get back to you on the details of

these matters. One of the things I did is to make sure that the

Capital Review Unit was made up of people who are not only experienced in cases involving the death penalty, but also approached

the subject in a way that appreciated the seriousness of death as

a penalty, and that this is not to be done without extraordinary

care.

And it would be, I think, a nightmare for all of us to have a Federal defendant put to death and for us to determine conclusively

later that that person did not commit the crime for which he or she

was executed. And I think that means that everybody involved in

the process has to be extraordinarily careful to do everything we

can to see to it that that doesn’t happen.

Senator FEINGOLD. Thank you for your answers, and thank you

for your time, Mr. Chairman.

Senator THURMOND. Senator Sessions.

Senator SESSIONS. Thank you. On that death penalty review

committee I would just observe, and I think you would agree, that

this is a non-statutory, non-required initiative of the Attorney General to give heightened review to the procedures.

Mr. ROBINSON. That is true.

Senator SESSIONS. Traditionally, the prosecutor and the grand

jury who has to hear the indictment—and make no mistake, grand

juries take death penalty cases very seriously.

Mr. ROBINSON. No doubt about it.

Senator SESSIONS. That is where it is normally decided, but she

has taken an extra step.

With regard to these numbers, like 166 in 1998 and 44 approved,

these 166 were those recommendations by the U.S. attorney that

the death penalty be sought?

Mr. ROBINSON. I think not. We will double-check, but all of these

death-eligible cases come up, and there are situations in which the

recommendations are not to seek the death penalty. And in a number of those cases, the Attorney General has decided notwithstanding the recommendation of the U.S. attorney that the death penalty

not be sought the Attorney General of the United States has decided it should be sought.

Senator SESSIONS. Well, you know, you can go too far in this

matter to some degree. If the definition of who has to undergo the

death penalty charge and be taken to a jury for it—and that is all

we are talking about here—is totally to the discretion of the Attorney General and her personal theories about the matter, you do implicate the power of Congress.

This Congress has passed a death penalty law. The President of

the United States says he supports the death penalty, and in my

observation has not criticized the matters which Congress has set

forth as appropriate for the death penalty. I think you ought not

to forget that it is not all totally up to the Attorney General, and

she ought not to arrogate to herself total power to decide which

cases go because the Congress has said certain kinds of crimes require the death penalty, or are appropriate.

26

Mr. ROBINSON. I understand your point, Senator, and I do think

that what is happening here is an effort to try to make sure that

the death penalty process is conducted in a uniform way so that

we don’t have a situation where the Federal system is attacked because there are wildly different approaches in 94 U.S. attorneys’ offices.

You and I as former U.S. attorneys know how jealously U.S. attorneys guard their prerogatives in this area. But I have not found

that U.S. attorneys who frankly are not anxious to have Main Justice review many things—I haven’t seen a concern on their part

about such review. Now, there has been appropriate dialogue about

making sure the process isn’t unduly burdensome, and those things

we have been working on. And we will continue to do so.

Senator SESSIONS. Enough said, I suppose, about it. I just think

that the law ought to be considered in this process to a significant

degree.

As I understood Senator Feingold’s comments, he was suggesting

that from 1995 to 1998 a higher percentage of cases were recommended for the death penalty for whites, 41 percent to 23 for

minorities, but that number changed this year. I would just say to

you—and I respect the Senator; he is straight up front. He does not

believe that the death penalty is an appropriate penalty in America

today. The Supreme Court and the American people have not

agreed with that for the most part, but that is a legitimate view.

I would just say to you that I hope you are not driven by numbers.

Mr. ROBINSON. I expect we should not be driven by numbers at

all. It would be inappropriate to be driven by numbers.

Senator SESSIONS. You may have a situation in one year in

which 44 cases come up and are approved and they are all of one

race. I hope that if each one met the Attorney General’s criteria,

which I assume are fairly objective in many ways——

Mr. ROBINSON. Yes.

Senator SESSIONS [continuing]. That you would recommend the

death penalty and would stand before the world and say you did

it for race-neutral reasons based on justice and the facts of the

case.

Mr. ROBINSON. I share that view and I subscribe to it. It ought

to be based upon what ought to be done on the individual case, regardless of race.

Senator SESSIONS. And the numbers are never going to satisfy

the people who don’t believe in the death penalty. They will always

find numbers that are not perfectly consistent with demography

and we will have a fuss that it is unfairly applied. I would just

point out that the death penalty procedure now requires two counsel be appointed for any person charged for a death offense, one of

which shall be experienced in capital cases, and puts several other

burdens.

Back on the prosecution of gun cases, can you tell me what action you have taken, if any, subsequent to the President’s radio address this spring in which he directed the Secretary of the Treasury and the Attorney General to improve the handling of these

cases? Increase prosecution of criminals, I believe is what he said.

27

Mr. ROBINSON. What was the date of the radio address? I didn’t

catch it.

Senator SESSIONS. March 19.

Mr. ROBINSON. In June, the Secretary of the Treasury and the

Attorney General sent a memorandum to all U.S. attorneys and

special agents-in-charge at ATF on the development of an integrated firearms violence reduction strategy, and I think it is directly related, Senator, to this.

And I have to say we did speak about this during my confirmation process. I have inquired into this matter carefully because I

know the Senator is very concerned about this issue and believes

strongly in the subject of Federal enforcement of firearms statutes

particularly with regard to violent criminals. And so I have been

looking into that issue, as I said I would. I have looked at the numbers.

I think you are right in terms of the fact that there are fewer

firearms prosecutions from 1992 to today. And these numbers, I

think, come out of the U.S. attorneys’ statistics. I think that you

could quarrel a little here and there with the numbers, but not the

trend, and I wouldn’t take issue with that.

I have talked to the career prosecutors in the Criminal Division

that were involved in the evolution of the Triggerlock project and

the continuation of that, and particularly with regard to the current approach that is being taken by the Department. I know that

it is one that you don’t agree with entirely, and I would just say

the following things about this and these are things you have

heard before, I know.

I think a combination of the fact that the 1994 violent crime initiative expanded the Department’s work in the area of violent

crimes beyond guns to gang-related violence and the continuing

evolution—something that I know that you agreed with as U.S. attorney—of trying to work cooperatively with State and local law enforcement, has produced some rather good results. And I understand your position that they could be even better and the notion

of continuous improvement is appropriate.

But as I understand it, as of 1996, when you combine Federal,

State and local efforts in this area, there are 22 percent more

criminals incarcerated on Federal and State weapons offenses than

there had been before, which means the States are doing a better

job. And we are trying to work cooperatively with them. In addition

to efforts like Project Exile, I think you will see that people are

being encouraged to use best practices in their individual judicial

districts.

Also, the number of Federal offenders serving sentences of 5

years or more in the Federal system is up 25 percent since 1992.

There is another important factor—and I am not suggesting that

the Justice Department is entitled to take credit for it. It is a combined issue of demographics and a lot of hard work by Federal,

State and local law enforcement. But the fact is that we have had

a 27-percent decline in violent crimes committed with guns between 1992 and 1997 and that the homicide rate is at a 30-year

low, is encouraging, but doesn’t mean we can be complacent.

The Senator has made a contribution by keeping the Justice Department and the rest of Federal and State law enforcement foVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 JULY27.TXT SJUD2 PsN: SJUD2
28

cused on the need to concentrate our efforts. And we can do more.

I think the Senator’s efforts in this area continue to remind us that

we need to be looking at these numbers, looking at ways to do a

better job, such as encouraging U.S. attorneys to diagnose these

problems and take a look at the laws in their own jurisdictions and

work out solutions so that serious cases involving violence, involving guns, do not fall between the cracks.

So my sense is that the current balance is working well, and I

haven’t sensed in the people that I have talked to in our Terrorism

and Violent Crimes section and others who have been involved in

Triggerlock all along, are uncomfortable with this mix. But that

doesn’t mean that it isn’t appropriate to ask ourselves whether we

can do a better job. I understand the Senator’s views and I think

they are appropriate to continue to remind us of the need to do better.

Senator SESSIONS. Well, I know the time is out, but I know the

U.S. attorney and the chief of police in Richmond who testified believe that enhanced prosecutions of Federal gun violations in Richmond substantially reduced the violent crime rate. The murder

rate went down 40 percent, and I believe that could be replicated

around the country.

The Federal Government has the ability to detain people prior to

trial with criminal records better than most States. They have a

prompt trial within 70 days. There is certain punishment if the defendant is found guilty. Police appreciate it and I think it does

work. And I think there are people not alive today because we

haven’t used it aggressively enough. People like Senator Schumer

are most eloquent in asking for more and more gun laws, but I am

asking what about the ones we have got?

Thank you, Mr. Chairman.

Senator THURMOND. Thank you, Senator.

Mr. ROBINSON. Thank you, Senator.

Senator THURMOND. Senator Leahy.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. Well, Mr. Chairman, I think the Senator from

Alabama will probably not be overly surprised to know that much

of what he said I agree with. I feel if we are going to put these

gun laws on the books, then let’s enforce them. I understand the

U.S. attorneys may determine, a lot of them, that they would rather the local prosecutors do it. But if some of these are going to be

Federal laws, I think we ought to prosecute them, and we ought

to prosecute them effectively and strongly.

I find it very difficult to understand why somebody who has had

three or four prior felonies, and each one involving a weapon, why

they are still walking on the street, somebody who has had three

or four prior felonies and they go in to buy a gun, why they are

not nailed for that. Just as I find sometimes local police departments round up people and confiscate their guns; they have all got

felonies and nothing happens to them. So the Senator from Alabama and I are not too far apart on this issue.

I would note, though, on another issue, the death penalty, first,

I come from a State that does not have the death penalty. We don’t

29

have many gun laws either. We don’t have much crime. Maybe

they are all related. I am not sure. We do have one gun law. During deer season, if you are using a semi-automatic rifle, you are

limited to the number of rounds you can have in the weapon because the deer should be given some kind of a chance. Other than

that, just about anybody can carry a loaded concealed weapon. We

don’t have any permit process, so there are no permits. We do have

laws, of course, on the sale of firearms.

But we also found long ago that we did away with the death penalty because in most instances it was not a deterrent. Perhaps in

some rare ones, but most murders tend to be family murders or

people who know each other. We found it was not a deterrent, but

we also had a concern that the wrong person might get picked up.

Since 1976, when capital punishment was reinstated, we have

had 558 people executed. During that same time, 80 people who

were on death row who had been sentenced to death and who were

about to be executed were suddenly found innocent and set free.

For every seven executions, they found somewhere somebody who

had been convicted through the whole system was a mistake. That

is three innocent people sentenced to death each year.

In the first half of 1999, seven innocent capital prisoners have

been released from death row after they spent a combined total of

61 years on death row. Randall Dale Adams might have been routinely executed if his case had not attracted the attention of a film

maker, Earl Morris. The movie ‘‘The Thin Blue Line’’ shredded the

prosecution’s case and cast the national spotlight on Adams’ innocence.

But probably a better case is Anthony Porter. He spent 16 years

on death row, 16 years waiting for execution. In 1998, he came

within 2 days of execution. He got cleared, not by the criminal justice system doing its job, but by a class of undergraduate journalism students at Northwestern University who took it on as a class

assignment. We are finding now with DNA more and more people

saying, I wasn’t the guy there. And it turns out, guess what? They

weren’t the guy there. So I would hope that you would supply for

the record just what steps are taken to make sure we don’t get the

wrong person.

I would also like you to look at what the Supreme Court has said

about the extent to which crime-fighting can be conducted at the

Federal rather than the State or local level. I know that some of

my colleagues have worried about the Supreme Court being activist, and I assume they meant Chief Rehnquist and Justice Scalia

and Justice Thomas and some of the others who have given the

States carte blanche to violate Federal patent and trademark laws.

They have made it impossible for State employees to enforce their

federally protected right to get paid for overtime work. I assume

that is what my Republican colleagues meant about this activist

Supreme Court. So I would hope we are going to work closely together to make sure we have legislation that will survive Supreme

Court scrutiny.

I am going to have some questions I will submit to you about

CALEA. CALEA has been implemented at an extremely slow pace.

The Department of Justice issued its final notice of capacity requirements over 2 years late. The FBI has dragged its feet and deVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 JULY27.TXT SJUD2 PsN: SJUD2
30

layed it even further by challenging before the FCC the sufficiency

of an industry-adopted standard for compliance with the law.

As one who helped write that law, I am concerned that implementation of CALEA has been subverted. We tried to maintain a

balance among privacy rights, law enforcement interests, and innovation in the telecommunications industry. Now, we find the costs

soaring and we find that suddenly the FBI has decided they want

a lot more than anybody ever intended them to have. I want to

know what the Justice Department is doing on that.

There are a number of pieces of legislation and I want to know

whether you will work with me on those. Again, I will put that in

the record.

[The prepared statement of Senator Patrick Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK LEAHY

This is the first occasion, since we held a hearing on the nomination of Jim Robinson to head the Criminal Division in April 1998, to hear directly from him. This

hearing is long overdue, and I commend the Chairman and Ranking Member of the

Subcommittee for focusing our attention on how the Criminal Division is handling

a number of issues critical to enforcement of our federal criminal laws.

FEDERALISM

As we consider federal law enforcement issues, we must be cognizant that the Supreme Court has launched a cautionary shot across our bow about the extent to

which crime fighting may be conducted at the federal, rather than the state or local,

level. This year’s crop of state’s rights decisions continues what many consider the

Court’s activist efforts to whittle down the legitimate authority of the federal government. In 1995, for the first time in more than half a century, the Court invalidated a federal law as beyond the Commerce Clause, involving children and guns

in our schools. This year, the Court gave the states carte blanche to violate federal

patent and trademark laws, and made it impossible for state employees to enforce

their federally-protected right to get paid for overtime work.

The maintenance of state sovereignty is a matter of great importance. For this

reason, I have been critical of the increasing intrusion of federal regulation into

areas traditionally reserved to the states. But it is one thing to say that Congress

should forbear from interfering in areas that are adequately regulated by the states;

it is quite another thing to say that Congress may not exercise its constitutional authority to enact legislation in the national interest.

We are in danger of becoming the incredible shrinking Congress, and not to preserve legitimate local autonomy, but instead on the altar of a strange abstraction

of ‘‘state dignity.’’ As we work together to produce effective national legislation to

combat crime, we will have to work even harder to ensure the legislation will survive Supreme Court scrutiny as a proper exercise of congressional power.

DIGITAL TELEPHONY LAW IMPLEMENTATION

As the primary Senate sponsor in 1994 of the Communications Assistance for Law

Enforcement Act (CALEA), I have been disappointed with the pace at which this

important law has been implemented. For example, the Department of Justice

issued its final notice of capacity more than two years late. This delay produced additional delays in the ability of telecommunications carriers to achieve compliance

with the four capability assistance requirements established in CALEA.

The FBI has also challenged before the Federal Communications Commission the

sufficiency of an interim standard adopted in December 1997 by the industry for

wireline, cellular and broadband PCS carriers to comply with the capability assistance requirements. The FBI wants additional surveillance functions built into our

telecommunications system. For example, the FBI wants access to mobile phone location information, to credit card and banking information transmitted over phone

lines under a low standard, the ability to eavesdrop on conference calls when the

persons named in the court order are not on the call, and so on. I have been concerned that those additional surveillance functions raise significant privacy interests

and are being demanded by law enforcement without any regard to the cost.

Uncertainty over the outcome of the disputed industry-adopted standard has resulted in further delays in developing technical solutions that would bring our carVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 JULY27.TXT SJUD2 PsN: SJUD2
31

riers into compliance. Indeed, the FCC was compelled to extend the compliance date

of the law by almost two years, until June 30, 2000. Moreover, concerns over the

costs of the FBI demands have prompted the House of Representatives to pass on

two occasions legislation that would extend the so-called ‘‘grandfather date’’ under

CALEA and make the government responsible for bearing more of the costs of

CALEA compliance. The most recent version of this legislation, H.R. 916, passed the

House on July 13, 1999, and extends the ‘‘grandfather’’ date from January 1, 1995,

for five years until June 30, 2000.

In short, implementation of CALEA has been subverted: The balance we tried to

maintain in CALEA among privacy rights, law enforcement interests and innovation

in the telecommunications industry is being threatened, compliance with the law is

being delayed, and the costs continue to soar. I want to hear what Assistant Attorney General Robinson is doing about this situation.

E-RIGHTS ACT, S. 854

I introduced privacy legislation earlier in this session to clarify the standards and

procedures governing when law enforcement may use the surveillance capabilities

the FBI is seeking from the FCC. For example, my bill would require a probablecause court order before the FBI is authorized to use a cellular phone as a tracking

device. The E-RIGHTS bill would also require the FBI to obtain court approval before eavesdropping on a conference call of persons not named in a wiretap order.

This bill contains a number of other reasonable provisions designed to restore and

protect our privacy rights in our phone, fax and computer communications. I want

to hear whether Assistant Attorney General Robinson is willing to work with me

in this important area—which will become even more critical should the FBI be

granted by the FCC all the additional surveillance capabilities it has requested.

SENIOR SAFETY ACT, S. 751

Seniors are the most rapidly growing sector of our society. It is an ugly fact that

crimes against seniors are a significant problem. To address the unyielding rate of

crimes against seniors, in March I introduced S. 751, the Seniors Safety Act, to provide a new safety net of laws to combat these crimes. This is a comprehensive bill

that addresses the crimes to which seniors are most vulnerable—from combating

health care fraud and abuse and protecting nursing home residents to safeguarding

pension and employee benefit plans from fraud, bribery and graft.

I know that the Administration has been working on its own legislative proposals

in this area, including provisions to allow the use of administrative subpoenas for

access to health records for fraud investigations. My legislation would authorize the

use of such subpoenas but under circumstances that would protect against the further disclosure of personally identifiable health records. The Administration’s draft

proposal does not have any such protections included. As this legislation moves forward, I would hope that the Department, and the Criminal Division in particular,

will find common ground on authorizing reasonable standards for access, use and

disclosure by law enforcement of personally identifiable medical records in ways

that do not hinder fraud investigations, but also in ways that ensure these records

are accorded privacy protection.

DEATH PENALTY CASES

People of good conscience can and will disagree on the morality of the death penalty. But I am confident that we can all agree that a system that sentences one innocent person to death for every seven that it executes has no place in a civilized

society, much less in 21st Century America.

Yet that is what the American system of capital punishment may have done for

the last 23 years. A total of 558 people have been executed since the reinstatement

of capital punishment in 1976. During the same time, 80 death row inmates have

been found innocent and set free. That is one exoneration for every seven executions. That signifies that more than three innocent people are sentenced to death

each year. The phenomenon is not confined to just a few states; the 80 exonerations

since 1976 span more than 20 different States. And the rate seems to be increasing:

In the first half of 1999, seven innocent capital prisoners have been released from

death row, having spent a combined 61 years on death row.

This would be disturbing, if their eventual exoneration was the product of reliable

and consistent checks in our legal system. It might be comprehensible, though not

acceptable, if we as a society lacked effective and relatively inexpensive means to

make capital punishment more reliable. But many of the freed men owe their lives

to fortuity and private heroism, having been denied common-sense procedural rights

and inexpensive scientific testing opportunities. Consider the case of Randall Dale

32

Adams, who might have been routinely executed had his case not attracted the attention of a filmmaker, Earl Morris. His movie, The Thin Blue Line, shredded the

prosecution’s case and cast a national spotlight on Adams’ innocence. Consider the

case of Anthony Porter, who spent 16 years on death row and came within two days

of execution in 1998; he was cleared this year by a class of undergraduate journalism students at Northwestern University. Now consider the cases of the unknown

and unlucky, whom we may never hear about.

By reexamining capital punishment in light of recent exonerations, we can enact

provisions to reduce the danger that people will be executed for crimes they did not

commit, while increasing the probability that the guilty will be brought to justice.

We can also help to ensure that the death penalty is not imposed arbitrarily or out

of ignorance or prejudice. I would hope that the Department of Justice would join

me in developing legislation to reduce the risk of mistaken executions.

ANTI-ATROCITY ALIEN DEPORTATION ACT, S. 1375

The recent events in Kosovo have been a graphic reminder that crimes against

humanity did not end with the Second World War. Unfortunately, war criminals

who wielded machetes and guns against innocent civilians in countries like Haiti,

Yugoslavia and Rwanda have been able to gain entry to the United States through

the same doors that we have opened to deserving refugees. Once these war criminals slip through the immigration nets, they often remain in the United States,

unpunished for their crimes.

We need to lock our door to those war criminals who seek a safe haven in the

United States; and to those war criminals who are already here, we should promptly

show them the door out.

Senator Kohl and I recently introduced S. 1375, ‘‘The Anti-Atrocity Alien Deportation Act,’’ to close loopholes in current law to accomplish this task. The Act would

(1) bar admission into the United States and authorize the deportation of aliens who

have engaged in acts of torture abroad; (2) provide statutory authorization for and

expand the jurisdiction of the Department of Justice’s specialized Office of Special

Investigations (OSI) to investigate, prosecute and remove any alien who participated

in torture and genocide abroad—not just Nazis; and (3) authorize additional funding

to ensure that OSI has adequate resources to fulfill its current mission of hunting

Nazi war criminals.

Little is being done about the new generation of international war criminals living

among us, and these delays are costly. As any prosecutor knows, such delays make

documentary and testimonial evidence more difficult to obtain. Stale cases are the

hardest to make.

This is one of the mistakes we made with Nazi war criminals: waiting for more

than 30 years after the end of World War II before creating OSI within the Criminal

Division to hunt for Nazi war criminals. Let us not repeat the mistake we made

with Nazi war criminals of waiting decades before tracking down those war criminals who settled in this country. I invite the Department of Justice to work with

me as this legislation moves through Committee to make any refinements necessary

to address this problem.

COMPUTER CRIME ENFORCEMENT ACT, S. 1314

I recently introduced this legislation to establish a Department of Justice grant

program to support state and local law enforcement officers and prosecutors to prevent, investigate and prosecute computer crime. Senator DeWine, with whom I

worked closely and successfully last year on the Crime Identification Technology

Act, and Senator Robb, who has long been a leader on law enforcement issues, also

support the bill as original cosponsors.

Computer crime is quickly emerging as one of today’s top challenges for state and

local law enforcement officials. A recent survey by the FBI and the Computer Security Institute found that 62 percent of information security professionals reported

computer security breaches in the past year. These breaches in computer security

resulted in financial losses of more than $120 million from fraud, theft of proprietary information, sabotage, computer viruses and stolen laptops. Computer crime

has become a multi-billion dollar problem. I invite the Department of Justice to

work with me and my colleagues to provide our crime-fighting partners in the

States with the resources necessary to combat computer crime.

CRIME VICTIMS ASSISTANCE ACT, S. 934

Finally, I note that the Senate remains in neutral when it comes to providing

greater protection and assistance to victims of crime. For the last several years, I

have sponsored comprehensive legislation on this important matter with Senator

33

Kennedy. Others in the Senate are insistent on consideration of a proposed constitutional amendment first. We can make significant improvements now, without delay.

I will be interested to hear from the Assistant Attorney-General about what the Department is doing to protect the rights and dignity of victims of crime.

These are just a few of the important criminal justice issues confronting us today.

I look forward to hearing from Mr. Robinson about his views on these and other

issues.

[The questions of Senator Leahy are located in the appendix:]

Senator LEAHY. I would ask you this question. I recently introduced S. 1375, a bill that would bar admission into the United

States and authorize the deportation of aliens who have engaged

in acts of torture abroad. S. 1375 would expand the jurisdiction of

OSI, the Office of Special Investigations, to investigate and prosecute and remove any alien who participated in torture and genocide abroad, as we have with those from the Holocaust.

But now we find that genocide and these types of war crimes go

on, whether it is in Rwanda, Central America, Bosnia and elsewhere. And then these people who commit the crimes, some of

them, come and hope they can hide in a nation of 250 million people and utilize our laws. We owe the Department of Justice support

for the expansion of OSI so we can go after these war criminals.

Mr. ROBINSON. I saw the article actually in the Legal Times

today—I don’t know if you have seen it yet—on your legislation,

and we will be happy to look at it. I obviously support the work

of the Office of Special Investigations in the Criminal Division.

Senator LEAHY. As do we all.

Mr. ROBINSON. When I was U.S. attorney, that Unit was created

by then Attorney General Civiletti and one of the early important

cases was in the Eastern District of Michigan. So we will be happy

to take a look at that, Senator.

Senator LEAHY. Well, look carefully.

Mr. ROBINSON. We will look carefully.

Senator LEAHY. I think it is long overdo.

Mr. Chairman, I am delighted to have a chance to be here. I am

delighted to have a chance to discuss what some of you have said

has been an activist Supreme Court, and to talk about Vermont.

Of course, Mr. Chairman, you are always welcome to come there.

Even Senator Schumer is welcome to come any time he wants.

Senator THURMOND. Thank you very much.

Senator LEAHY. Thank you, and we will get simultaneous translation for either one of you guys if you come.

Senator THURMOND. Senator Schumer.

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator SCHUMER. Well, thank you, Mr. Chairman, and I thank

you for holding this hearing which is part of our job of oversight.

And I thank Senator Leahy for gracing us with his presence. It is

always good to see Senator Leahy whether it is in Washington, DC,

New York State, or Vermont. But it is usually in Vermont that I

see him and he is always talking about Vermont, which is great.

My questions are these. First, I know Mr. Sessions talked about

gun prosecutions, which I want to talk about in a minute, but I

would just make two points. The two are not mutually exclusive.

Tightening the laws on controls and enforcing the existing laws are

34

not inconsistent. I know that some people want to say it is an either/or situation.

I remember in the House when I was a leader on gun control I

sort of confounded many of the people on the other side because

they said, well, you are not tough on crime. And that was not my

position. I am a strong advocate for gun control. I also have supported punishment—three strikes and you are out, capital punishment, things like that. And they always get in a tizzy about me because they used to go after the gun control advocates saying, well,

you are not for punishing people, just for taking the guns away. I

happen to be for both.

One of the things I would say—I am sorry my colleague from

Alabama isn’t here—you know, they say, well, we have plenty of

laws on the books. Well, many of the pro-gun advocates make sure

that those laws are so riddled with loopholes that they don’t work.

The one that is most notorious is the Brady law which required a

background check. The NRA worked hard to put in a loophole on

gun shows. Now, we are here coming to gun shows.

Every time they try to make sure the law doesn’t work and then

they say, see, it didn’t work. So I will leave that at that and I will

continue the conversation with my good friend from Alabama. I

don’t agree with him on this issue, but I appreciate his considerateness and his steadfastness on the issue.

My question is this on gun prosecutions. As you know, I have

been a strong supporter of Project Exile which I think has done a

very good job, and a lot of the spade work for it occurred in my

State of New York, particularly in the Western District over in

Rochester and in Buffalo. One of the issues in Project Exile is

whether gun prosecutions should be brought in Federal or State

court, and there are a whole bunch of sub-issues that make that

decision, where the sentences are longer, where the Federal prosecutors have the resources to play a prominent role, the opportunity costs.

Those are important questions, but there is one point that is sort

of left out and that is the fact that some firearms offenders have

moved through county and State jails many times before their latest firearms offense. They know the system, they know the jail

crowd. Their buddies are there. It is almost as if the county and

State criminal justice systems are a second home for these individuals, particularly when they get shorter sentences.

In Rochester, NY, Exile means Federal prosecution and incarceration in a far-away Federal facility or a far-away county facility

under Federal contract. The repeat offenders under Exile no longer

know the ins and outs of the system. Their relatives can’t visit

them that easily. The consequences for a gun crime become truly

life-changing for the offender.

I would just ask your opinion, Mr. Robinson, about this often ignored aspect of Federal firearms prosecution projects.

Mr. ROBINSON. I think your point is well taken, Senator, and I

think every U.S. attorney ought to be sitting down with his or her

State attorney general and county prosecutors, and those individuals ought to be identified for the strictest possible treatment,

whether it is in the Federal system or the State system. And beVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 JULY27.TXT SJUD2 PsN: SJUD2
35

cause of the debate in this area, we are now seeing that there are

States that have tough sentences.

But what we hope will happen, and I think should continue to

happen and has been happening is that every judicial district,

every U.S. attorney, ought to be sitting down and carefully targeting in his or her own district, often on a community-by-community

basis, what it needs to get at the problem of gun violence in America.

So I think those kinds of considerations ought to be brought right

down to the communities and to the districts, and U.S. attorneys

ought to be encouraged to take those cases and to work with State

and local prosecutors to see to it that that kind of syndrome that

you describe does not repeat itself.

Senator SCHUMER. And could we get some assurance from Justice that you will pass the word out on this issue to the U.S. attorneys throughout the country, those in jurisdictions with Project

Exile that is ongoing? As you know, in this budget, in the Commerce–Justice–State budget, Exile was expanded rather significantly.

Mr. ROBINSON. I do understand that, and we do think that this

ought to be a matter of discretion within the U.S. attorneys. But

I think the objectives are—I think we all agree on the objective,

which is to get the job done in identification, prosecution, and putting people away who are engaged in gun violence activities, all

kinds of serious violent activities. But guns are a serious problem

and we understand that.

Senator SCHUMER. OK, thanks. Next is on cyber crime and cyber

terrorism, something I have become concerned about in recent

years because of the vulnerability of our computer networks to attack. We worry a lot about bombs, biochemical weapons of mass destruction. Computer terrorism can be just as deadly because our

critical infrastructures are almost entirely computer-dependent.

We are hearing almost daily of hacking incidents into a military

or government system. Just yesterday, the newspapers reported on

security flaws that have been discovered in the UNIX operating

system, and that is the most common operating system used by

servers on the Internet. So I believe that this effort to fight cyber

crime and cyber terrorism ought to be one of the Justice Department’s highest priorities, and so I have a few questions in this regard.

First, I understand that the people in the Computer Crimes Section work very hard. I have tremendous respect for them. But are

there enough prosecutors assigned to that Section, and are those

prosecutors getting the technical support they need to accomplish

their mission?

Mr. ROBINSON. There is no question that you are absolutely right

about the concern that we ought to have for the future in the area

of cyber terrorism and cyber crime. The Computer Crime and Intellectual Property Section, as you know, was created relatively recently, in 1996, and I can say that the people of the United States,

and the Justice Department in particular, are blessed to have some

of the brightest, most able Federal prosecutors in this area.

The chief of the Computer Crime Section is an outstanding individual who could walk out the door tomorrow and quadruple his inVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 JULY27.TXT SJUD2 PsN: SJUD2
36

come, I am sure. And we have dedicated people working very hard.

Can we use more? Yes. We are trying actually within our own resources to move people into that area. Increasingly, that Section

gets called upon by all the other sections in the Criminal Division

and in the field.

The Section has designated computer and telecommunications coordinators in every U.S. attorney’s office. We are trying to get the

word out and provide training for investigators and prosecutors.

This is where the wave of the future is in terms of the threat to

our national security and the threat to crime activities generally.

So you are right on the money. We know that we have got to really

put the resources into this field and so we are working hard to try

to get that done.

Senator SCHUMER. Next question: do you think sentences for

computer crimes need to be enhanced?

Mr. ROBINSON. Yes, and there are a variety of things that we can

provide some additional detail on. One that occurs to me offhand

is in the intellectual property area, but there are a few others in

which it might be appropriate. We certainly don’t want things falling between the cracks because laws that were created before the

avalanche of this new technology may not have been thinking

about some of these issues. We need to stay on top of those as well.

Senator SCHUMER. Finally, because so many of these crimes are

being committed by younger and younger people who may not even

be aware that they are crimes—they may think, oh, this is fun or

something like that, I don’t know what—is the Department doing

any outreach to inform juveniles of the consequences of computer

crime?

Mr. ROBINSON. I think there are some efforts afoot, but probably

there should be more. We have some of these problems we see with

juveniles who are playing around. But we are trying to get the

message out by the swift investigation and prosecution of those

cases, some even involving juveniles, that this is not an area you

can play around with and get away with it.

Senator SCHUMER. And one final question, Mr. Chairman—I see

my time is up.

Senator THURMOND. Go ahead.

Senator SCHUMER. Thank you, Mr. Chairman.

Just on biological terrorism, another real threat particularly in

heavily populated areas such as New York City, my question is

that since a biological attack would require unprecedented coordination between the medical establishment, local and State law enforcement and Federal authorities, what is Justice doing on this

front?

Secretary of Defense Cohen has said the question is not if, but

when a biological attack will occur. I want to make sure that your

Department and other agencies are doing all they can to prepare

for such an incident.

Mr. ROBINSON. We would be glad to provide greater detail, but

you are absolutely right that this is something that there needs to

be an interagency approach to. I have been involved in serious

meetings and planning in this area. We have got plans in the

works and protocols to deal with this, but obviously we have got

to do everything we can. I will be glad to assimilate the material

37

we have that can be made available to you and get those to you,

Senator.

Senator SCHUMER. Thank you, Mr. Chairman. Thank you, Mr.

Robinson.

Senator THURMOND. I would like to turn to 18 U.S.C. 3501, the

law that the Congress passed to govern the admissibility of confessions in Federal court after the Miranda v. Arizona decision.

During an oversight hearing in 1997, Attorney General Reno informed the committee that she would apply section 3501 in an appropriate case. In United States v. Dickerson, in the Fourth Circuit,

the trial court found that the defendant had voluntarily confessed

his crime but that the Miranda warnings were not read to him beforehand.

Why was Dickerson not an appropriate case for the Justice Department to raise section 3501?

Mr. ROBINSON. This is another area I anticipated you might want

to get into. Although I didn’t testify at your hearing, I did submit

a statement before the subcommittee in connection with this issue

on the May 13 hearing which explained what the position of the

Department is and has been with regard to 3501 and Dickerson.

Miranda v. Arizona was decided in my first year of law school,

1966, and when I graduated from law school in 1968, 18 U.S.C.

3501 was passed. So I find it not only interesting, but also very momentous to be in a situation in which we have the very serious possibility that the U.S. Supreme Court will, in the context of

Dickerson, if certiorari is applied for and granted—and our response to the application, I think, is currently pending—that this

issue may then be a situation in which we would be before the Supreme Court.

As I said during my confirmation hearing, this is an issue that

I think is a very important one for us to look at carefully, particularly in this context that we find ourselves in at the moment. I can

explain briefly the reason why the Department has taken the position that it has. It is set out in my statement that was submitted

for the hearing, and that simply is that in a situation in which Miranda v. Arizona has not yet been overruled by the U.S. Supreme

Court, there is an apparent conflict between Miranda v. Arizona

and 18 U.S.C. 3501. The issue obviously presented is whether Miranda is constitutionally based.

And if it is, is it predicated on the Supreme Court’s determination that the Miranda warnings are compelled by the reading of

the Supreme Court of the U.S. Constitution. To the extent that 18

U.S.C. 3501 conflicts with Miranda v. Arizona, we find ourselves

in a situation in which under Supreme Court law you cannot lightly assume that the U.S. Supreme Court decision which has not

been overruled is no longer good law.

So the Department has taken the position, as it did in Dickerson,

that it has been inappropriate to do that. By a 2 to 1 decision of

the court of appeals in Dickerson, two judges had a different view,

and en banc the court of appeals let that decision stand. So it appears that there will be an opportunity to address that issue, and

I think that the way in which this issue is now teed up provides

an opportunity for the Justice Department, in the context of the position it takes in response to the petition for certiorari and then,

38

if granted, in the briefs to be filed in the U.S. Supreme Court, to

determine whether there ought to be an effort to deal with Miranda in a way different than the way it has been dealt with until

now.

The U.S. Supreme Court undoubtedly has the capacity to change

Miranda v. Arizona to agree with the principles that are enunciated in 3501 and could do that.

If the Supreme Court were to say that the Miranda warnings are

simply prophylactic rules not compelled by the Constitution, then

3501 could, be constitutional and we could, in fact, reinstate ourselves to a pre-Miranda situation.

But I think there will be an opportunity to address this. We are

looking hard at the whole question in terms of making a recommendation to the Solicitor General, who has the final say, subject to the Attorney General, on what the Department’s position is

on this. But we are looking at it hard, and frankly we are looking

at all the alternatives as to what the Department’s position should

be and whether Miranda v. Arizona ought somehow to be modified.

That is an ongoing process. Ever since Dickerson was decided, we

have been gathering the appropriate information and having those

issues carefully examined. The big problem is that as long as the

U.S. Supreme Court continues to apply Miranda v. Arizona to the

States, and could only do that if it is constitutionally based, we

have ourselves in a situation in which I am not sure a congressional enactment can trump a decision on constitutional law by the

U.S. Supreme Court.

That is an issue we discussed when we were here before, but

that argument may actually not be the key issue if the Supreme

Court grants cert in the Dickerson case because the Court then will

have an opportunity to say exactly what the current state of the

law is and what the majority of the Court currently feels on the

subject of whether the exclusionary rule should apply in situations

where the warnings were not given.

So we are looking at it and we don’t have a predetermined position. Of course, I couldn’t speak for the Solicitor General in any

event, but we will be making recommendations to the Solicitor

General on the Criminal Division’s view. We are consulting with

U.S. attorneys and trying to get the view of law enforcement because we have two decisions to make, a policy decision and a legal

decision, and that process is ongoing as we speak.

Senator THURMOND. The executive branch has a constitutional

duty to faithfully execute the laws, and I understand that the traditional policy of the Justice Department is that it will defend laws

of the Congress as long as a reasonable argument can be made that

they are constitutional.

Regardless of one’s views about the constitutionally of 3501, the

Fourth Circuit has upheld the statute in Dickerson and the Tenth

Circuit has upheld it in United States v. Crocker. No circuit has directly held section 3501 to be unconstitutional. In this situation,

why does the Department not have a duty to defend section 3501

before the lower Federal courts?

Mr. ROBINSON. Well, I think the question is the Department, as

Congress has an obligation to follow the law of the land as articulated with regard to the Constitution by the U.S. Supreme Court.

39

And I think the position that has been taken in these cases that

have been articulated in the testimony that I submitted previously

has been that as long as the U.S. Supreme Court has not seen fit

to overrule Miranda v. Arizona in any case that the Department

has to follow the last word of the U.S. Supreme Court.

And as was indicated in the Felton case in 1997, the lower Federal courts, and this has been the Department’s position have an

obligation to follow the teachings of the U.S. Supreme Court.

But the issue is the exact position that the Solicitor General will

take on 3501, and the principles that underlie 3501, and that is the

question of whether or not there ought to be an exclusionary rule

for Miranda violations. The Supreme Court can certainly change

that rule and they could do it in the context of the Dickerson case.

I think we have an obligation to approach this issue from the

point of view of what is best for law enforcement, and that is the

way I feel about it in terms of the Criminal Division. We are certainly going to be articulating the law enforcement perspective on

what the Department’s position ought to be on this issue as we review it in this context now that we have a specific case that tees

it up.

Senator THURMOND. It is important the Senate learn as soon as

possible what the position of the Department will be in Dickerson.

If the Supreme Court hears the Dickerson case, the Senate should

defend the law if the administration will not. Will you cooperate

with this committee so that Senate Legal Counsel will have the opportunity to defend section 3501 before the Supreme Court if the

administration will not?

Mr. ROBINSON. Speaking on my own behalf, and I can only go as

high as the second floor, I would say the answer is absolutely yes.

We will cooperate with this committee with regard to obviously

keeping the committee advised as we can when that determination

is made, and I think in plenty of time for there to be an opportunity if the Senate feels it needs to take a different view because

it is not satisfied. We would be glad to keep the Senate advised of

that, Senator.

Senator THURMOND. Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman, for raising that

issue. It has always been completely circular, the logic of the Department of Justice on this matter. When you say the lower courts

have a duty to follow the Supreme Court and Miranda and the Department will never take up 3501 and the voluntariness position,

unless the Court, as in this case, really just on its own motion

takes it up, it doesn’t get up. Isn’t that correct?

Mr. ROBINSON. Well, it could come up any minute in the context

of a State case, obviously, because——

Senator SESSIONS. Well, there is a case out of Virginia—is that

Dickerson—that you all refused to argue the issue on?

Mr. ROBINSON. The consistent position of the Department has

been that at least in recent years—and my understanding is that

there have been over the years some efforts to address this issue

in various administrations—has been that we are bound by Miranda, that district judges and courts of appeals cannot overrule

Miranda. We think, frankly, Dickerson on the face of it was incorVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6601 JULY27.TXT SJUD2 PsN: SJUD2
40

rectly decided as a matter of constitutional law. That is the Solicitor General’s position.

Senator SESSIONS. This is through the looking glass land, really.

I mean, the Supreme Court in Miranda said it was prophylactic;

it was not constitutionally mandated. The Congress comes along

with a voluntariness exception and you won’t even defend it, and

the Court is going to have to on its own, apparently. I don’t think

there is any need to argue about it. I don’t think it is a matter of

law; it is a matter of policy.

The Attorney General’s policy is not to take this matter up, not

to enforce 3501. And I am glad the chairman raised it and I think

this Congress is going to have to intervene, or somebody will, if the

Department won’t argue the case.

Mr. ROBINSON. Senator, we are going to have an opportunity to

address this very issue and there is no getting around it even if

somebody wanted to. The Dickerson case presents this squarely and

the Criminal Division is going to make a recommendation to the

Solicitor General. We are looking at it with an open mind with regard to what position—I wasn’t here before, but we have got an opportunity to deal with it now and we are doing it.

Senator SESSIONS. It is a big deal. I think it is a much bigger

deal than most people realize. Professor Schulhofer has repudiated

his 1987 article in which he argued Miranda has no impact on

crime clearance rates. That is clearly false. I mean, anybody that

knows what is going on out there knows that that is true.

You say, well, there are not many reversals based on it. It is because cases are not even brought. Defendants are never even taken

to trial because the fundamental evidence was the confession voluntary obtained and perhaps some technical Miranda violation.

Mr. ROBINSON. Well, I will undertake this, Senator. We are going

to look at this issue, and look at it carefully and look at it from

a law enforcement perspective. And I don’t think—perhaps I could

be wrong about this—I am not sure that the Senator—it wouldn’t

matter whether the Supreme Court reversed Miranda and went a

different way or did it in the context of applying 3501.

The issue is the excludability or not of confessions, unwarned

confessions, that we are all dealing with here in terms of the law

enforcement context. And so I think we are going to have an opportunity to have the U.S. Supreme Court speak definitively on its

view of Miranda.

Senator SESSIONS. Well, I guess you are right, and I would just

say this: Miranda was wrong-rendered. The Constitution does not

require a police officer to read the Constitution to the person he arrests before he asks him any questions. He has a right not to incriminate himself, but he does not have a right to not answer questions. He can’t be forced to incriminate himself. One day, we will

see.

Mr. ROBINSON. Perhaps sooner than later.

Senator SESSIONS. Let me ask you on a more substantive subject,

the bankruptcy matters. I am on the bankruptcy committee. We

have been struggling with how to improve bankruptcy. Just as a

matter of personal experience, I have had bankruptcy judges come

to me and say, Jeff, there have been no prosecutions. The word is

out; if you cheat on your bankruptcy forms, you flat out lie—and,

41

Mr. Robinson, so much of what is done in bankruptcy is in total

reliance on the honesty of the forms and statements submitted.

People are pretty regularly lying on those, and what can we do

about it?

So I came up with a little idea. We got the bankruptcy administrator, trustee, and the FBI agreed to assign an agent to it and to

have an assistant U.S. attorney to develop some expertise, and

they have done a good job. Ours is a small district, but I understand there will probably be eight or more convictions this year in

the Southern District of Alabama for bankruptcy fraud. I know the

lawyer who prosecutes them.

I would just say to you that if you did that, instead of 200 cases

nationwide, you would probably have over 1,000 cases nationwide.

And in the course of that, it could change the mentality of bankruptcy courts. Lawyers would have to advise their clients, because

it is a fairly close bar, that if you lie on these forms or if you testify

in blatant disregard of the truth, they will prosecute you. Somebody was prosecuted just last week or just last month, so you better tell the truth. And I think it would raise the level, and this is

a Federal court.

Mr. ROBINSON. I agree with you entirely and I think we have got

to do more. A year ago, the Attorney General approved the creation

of the bankruptcy fraud training and identification program. We

need to get the word out. We need to do a more effective job. We

have some things in the works that I would like to get back to you

on that do exactly the kinds of things you are suggesting we should

do.

I think it is a growing problem. I share your concern about it.

In the white-collar crime council, we had the U.S. bankruptcy

trustee represented, and so I think we need to get at this. The

growth in the number of bankruptcies is a national concern and a

national problem and I think we want to address it. Our Fraud

Section is working on this issue and we would be glad to work further and get further information to you, Senator, about it. I agree.

Senator SESSIONS. We have got 1.4 million bankruptcy cases. If

1 percent of them were fraudulent, what would that be, 10,000

prosecutions, 1,000 prosecutions? I don’t know which. That is a lot

more than we have got now, and I think what we are basically

doing is sending a signal that the Federal Government and the FBI

are not interested in fraud. You can go down there and unless you

get run over by a truck, nobody is going to prosecute you.

Now, in the bankruptcy bill that is pending now, it requires that

the Attorney General designate individuals to have primary responsibility for carrying out law enforcement responsibility in addressing the violations of bankruptcy, and should require that

there would be a U.S. attorney and the agent for the FBI be involved in those cases.

Have you been able to take a position on that? I think the Department has been basically supportive of that language. Can you

give us an official answer on whether you can support that language, section 158 as now constituted?

Mr. ROBINSON. I am not sure the Department’s submission has

gone in. The one concern that we would have would be anything

that—I mean, I am sure you remember, getting directions as to

42

how you run your U.S. attorney’s office is problematic. But I do

think that the problem is there and let me just double-check to see

if something has gone in.

I certainly support the notion of upping the ante in this area.

The question of what position the Department has taken on that

specific language—let me check and get back to you, Senator.

Senator SESSIONS. Well, it is a matter that I have raised early

on with Deputy Attorney General Holder and others in the Department, and I think it is a matter that just saying we are going to

do something about it may not be enough. Nothing has been done.

The numbers are still, I think, far too low. This wouldn’t require

a single case to be prosecuted, but it would require a mechanism

to be established. And they could have other duties. It doesn’t say

that is the only duty this bankruptcy attorney could have.

Mr. ROBINSON. I understand.

Senator SESSIONS. But they would, after handling just a few

cases, become much more comfortable, much more familiar with

how to prosecute them. And I think you would see a dramatic increase, with no extra funding required.

How do you feel about the asset forfeiture law that has cleared

the House, and do you believe it would undermine in a significant

way the ability of police and prosecutors around the country to take

the ill-gotten gains from criminals, mainly drug dealers? Are you

supporting reform?

Mr. ROBINSON. I expect you and I are in a hundred-percent

agreement on this subject of asset forfeiture. We have concerns

about H.R. 1658. In fact, we did a little piece that was published

in the Criminal Justice Weekly that just came out. It was a point/

counterpoint between myself and a criminal defense lawyer, former

NACDL co-chair of their—they call it their Forfeiture Abuse Task

Force.

We believe that asset forfeiture is one of the most effective ways

of removing ill-gotten gains from criminals. And while we think

some reform is appropriate and we could live with it, we are not

looking to take money unfairly from people. We think there ought

to be due process. But you mentioned, Senator, that I had been a

Federal prosecutor for 3 and a half years, but I also did a fair

amount of white-collar criminal defense work. I can say that I represented people in that area that ended up doing some time, but

ended up with money they shouldn’t have had at the end of the

day.

And I think we have got to make sure that crime does not pay,

and one of the most effective ways of deterring criminal activity is

to make sure that we go after that money and get it all, and get

all that we can, and have a fair process, but a process that doesn’t

allow somebody to do a cost/benefit analysis and say, well, I might

spend a few years in jail, but when I get done I am going to have

this huge amount of money to live on the rest of my life.

I think asset forfeiture is a critical tool for law enforcement. We

appreciate the support of people who know about this with your

background to help us and we would be happy to work with you

in this area.

Senator SESSIONS. I think you are right. Chairman Thurmond

was responsible for that law actually being passed, and Senator

43

Biden also was involved in that. And we are willing to be open to

reasonable improvement, but as I see the legislation that came over

from the House, it is a major reduction of the ability of the Government to do its work.

And I thank you for debating that issue in those kinds of publications. Only one side has been getting out. It is hard for us to do

that. I hope that you and your staff will get the word out to our

brethren in the criminal bar that we can eliminate some of their

worst problems, but we need to preserve the Act.

Mr. ROBINSON. I will leave a copy of this, Senator.

Senator SESSIONS. Thank you.

Mr. ROBINSON. I appreciate your support and the support of the

chairman in this important area.

Senator SESSIONS. Thank you.

Senator THURMOND. I just have about two more questions. I am

extremely concerned about the possible damage to our national security that may have been caused by the compromise of nuclear

weapons design codes at Los Alamos National Laboratory. News reports indicate that in 1997 the Department did not permit the FBI

to establish a wiretap on the telephone and computer of Wen Ho

Lee, the scientist suspected of compromising these codes. Should

the Department have requested that the court grant a wiretap for

Mr. Lee in 1997?

Mr. ROBINSON. Senator, because that is a pending matter, and I

know there has been a written request that is working its way

through as a response and that is being worked on by others at the

Department, I would appreciate an opportunity to defer the answer

to that to the response to the request that I know has been made.

Senator THURMOND. The Department has been investigating Mr.

Lee regarding potential criminal charges since at least April. Recent news reports indicate that the Department is considering

charging Mr. Lee with mishandling classified nuclear information

rather than espionage. Can you confirm this, and when do you expect the Department to finish its review of Mr. Lee’s case?

Mr. ROBINSON. I think it would be inappropriate to comment on

a pending criminal matter, and therefore I think it wouldn’t be appropriate to comment on the timing of any of this or the status of

a pending criminal matter.

Senator THURMOND. Senator Sessions, do you have any more

questions?

Senator SESSIONS. No. I thank you for asking that question and

I would just like to point out that I am very troubled about those

matters. Sooner or later, the truth is going to come out, I suppose.

If we entered into plea bargains with a number of these individuals

and they get little or no sentence and have provided little or no

beneficial information to the Government, the Department of Justice is going to have to answer to that.

The Attorney General steadfastly, over the objection of the FBI

Director and Mr. LaBella, did not appoint a special prosecutor. See,

the thing is the crux of handling one of those cases is often rooted

in negotiating that plea bargain. And you could either insist on the

absolute truth, no matter who it leads to, and get it, and sometimes you have to be firm about that, or you can enter into a plea

too quickly and never get the truth of what happened.

44

So I hope that we don’t have a situation in which the Department of Justice is embarrassed, I really do. I love the Department.

I spent 15 years there and I don’t want to see its integrity damaged

on this case. The extent to which you are involved in that, and you

should be, you ought to review every one of those plea bargains and

be absolutely sure that it is legitimate because I frankly am troubled by it from what I have seen so far.

Thank you, Mr. Chairman. Mr. Robinson and I have discussed a

number of issues before he took office. The Department has shown

some increase in prosecutions in several areas. I pointed out some

in which I still believe more improvement clearly needs to be done,

but there has been some movement in a number of areas. And I

think perhaps you need to figure out what you did in those areas

and maybe replicate it in some others.

Mr. ROBINSON. We are working hard at it. I managed to persuade my chief assistant when I was U.S. attorney to come back

from private practice to join me as my chief of staff and we love

being back at the Justice Department. We are working awful hard,

you know, night and day at it, but it is wonderful, important work

and we appreciate the support of alums of the Justice Department

for the mission. I appreciate the opportunity to be here and am

happy to come back and talk further about other issues.

Senator THURMOND. Senator Sessions, thank you again for your

fine participation.

Senator SESSIONS. Thank you, sir.

Senator THURMOND. There are many other issues in which I am

interested, such as the impact that drastic changes in our civil

asset forfeitures could have on law enforcement. However, I will

ask those questions in writing to you, if that is agreeable.

[The questions of Senator Thurmond are located in the appendix:]

Senator THURMOND. I appreciate your appearing here today and

I thank you, Mr. Robinson.

Mr. ROBINSON. Thank you very much, Mr. Chairman. Thank you,

Senator Sessions.

Senator THURMOND. We will leave the hearing record open for

one week for additional materials to be placed in the record and for

follow-up questions.

Now, if there is nothing further to come before the subcommittee,

the subcommittee is now adjourned.

[Whereupon, at 3:43 p.m., the subcommittee was adjourned.]

(45)

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

ADDITIONAL SUBMISSION FOR THE RECORD

THE UNIVERSITY OF UTAH,

July 23, 1999.

RE: Performance of the Current Administration in

Supreme Court Criminal Cases

Senator STROM THURMOND, Chairman,

Subcommittee on Criminal Justice Oversight,

Senate Committee on the Judiciary,

Senate Dirksen Office Building,

Washington, DC.

DEAR CHAIRMAN THURMOND: I understand that you are interested in the performance of the current Administration in defending the interests of effective law enforcement. I write to provide some statistical information that bears on this question.

As you may recall, on November 14, 1995, I testified before the Senate Judiciary

Committee concerning the performance of the Administration in criminal cases before the United States Supreme Court. That testimony collected statistics on amicus

briefs filed by the United States in state criminal cases. (More information about

this methodology is set out in an attachment to this letter.) One set of statistics

showed that such filings in all criminal cases had fallen sharply when the current

Administration assumed control of the Justice Department. During the Court Terms

1989 to 1992, when political appointees in the Bush Administration reviewed such

filings, the United States filed supportive amicus briefs in 53 percent of all criminal

cases. In Court Terms 1993 and 1994, when appointees in the Clinton administration made the decisions, such briefs were filed in only 29 percent of all cases. I tentatively concluded from data that the current Administration was, contrary to its

public promises, in fact less committed to supporting the states in criminal cases

was than its predecessor.

When I testified in 1995, I cautioned that it would be informative to continue to

follow the data and see whether this pattern continued in subsequent years. I have

recently updated my data and can report that the problem of lower support for the

states persists. In the three most recent years the current Administration has filed

briefs in a far lower percentage: 38 percent in 1995, 36 percent in 1996, and 23 percent in 1997 (the most recent year for which data is available). Over all, compared

to the Bush Administration’s record of supporting the states in 53 percent of the

criminal cases in front of the Supreme Court, the Clinton Administration has supported them in only 29 percent.

A similar picture emerges if one narrows the focus to an important subset of

criminal cases: death penalty cases. During the Bush Administration, supporting

amicus briefs were filed in 37 percent of all capital cases. For the five years of the

Clinton Administration for which data is available, such briefs have been filed in

only 17 percent of all cases.

Based on this expanded data, the differences between the two Administrations

have become even clearer than when I testified earlier. As a result, I feel even more

confident that the current Administration is less interested in supporting effective

law enforcement than was its predecessor.

The methodology for all of these calculations is precisely the same as that elaborated in my earlier testimony. If I can provide any further information on this subject, please do not hesitate to contact me.

Sincerely,

PAUL G. CASSELL,

Professor of Law.

ATTACHMENT—METHODOLOGY FOR CALCULATIONS

To gather information on the subject of supporting the states in ‘‘criminal cases,’’

the following methodology was used. Because defining ‘‘criminal’’ cases could be the

subject of debate, I used a neutral source for my data base: the annual United

States Law Week ‘‘Review of the Supreme Court’s Term,’’ which summarizes the Supreme Court’s opinions in the area of ‘‘criminal law.’’ For each of the last nine Court

terms (four during the Bush Administration and five during the Clinton AdministraVerDate 11-MAY-2000 14:23 Nov 06, 2000 Jkt 000000 PO 00000 Frm 00166 Fmt 6601 Sfmt 6621 JULY27.TXT SJUD2 PsN: SJUD2
163

1 It appeared that most of the briefs for cases argued during the transitional October Term

1992 were filed during the Bush Administration. 2See 64 U.S.L.W. at 3127 (summarizing the Supreme Court’s 1994 to 1995 Term and concluding that the Court’s ‘‘output of criminal law cases declined for the second year in a row’’).

tion 1), my research assistant then identified the cases in which a state was a party

and, if so, whether they had been supported (or opposed) by the United States as

an amicus curiae. Because the number of criminal cases varies from year to year,2

statistics based on absolute numbers might be questioned by some. To avoid that

issue, my research assistant derived a percentage of criminal cases in which the

state was supported by the United States. This was determined through an electronic search of a legal database for an amicus brief filing by the Solicitor General’s

Office. For purposes of this computation, consolidated cases were treated as one

‘‘case.’’

After all of the state criminal cases were compiled and verified, the number of

Solicitor General amicus briefs filed for one given Supreme Court term was divided

by the total number of state criminal cases decided for that same term; the number

from this calculation is the percentage of amicus briefs filed by the Solicitor General’s Office in support of the states for that given year/Supreme Court term.

The same procedure was done regarding state death penalty cases—namely, the

number of Solicitor General’s amicus briefs filed in state death penalty cases for a

Supreme Court term was divided by the total number of state death penalty cases

decided for the same term; the number from this calculation equals the percentage

of amicus briefs filed by the Solicitor General’s Office in support of the states in

death penalty cases for the given Supreme Court term.

Æ