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104TH CONGRESS

1ST SESSION S. 438

To reform criminal laws, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 16 (legislative day, JANUARY 30), 1995

Ms. SNOWE introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To reform criminal laws, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘The Crime Control

5 Act of 1995’’.

6 SEC. 2. FINDINGS.

7 The Congress finds that—

8 (1) the most important domestic function of the

9 Federal Government is the protection of the personal

10 security of individual Americans through the enact11 ment and enforcement of laws against criminal be12 havior; and
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1 (2) tough Federal laws, such as mandatory

2 minimum prison sentences for violent crimes com3 mitted with a firearm and truth-in-sentencing, would

4 serve as deterrents to persons who might be disposed

5 to commit violent crimes.

6 SEC. 3. MANDATORY MINIMUMS FOR STATE CRIMES IN7 VOLVING A FIREARM.

8 Section 924(c) of title 18, United States Code, is

9 amended by adding at the end the following new para10 graph:

11 ‘‘(4)(A) A person who, during and in relation to

12 a crime of violence or drug trafficking crime involv13 ing a firearm that has been moved at any time in

14 interstate or foreign commerce (including a crime of

15 violence or drug trafficking crime that provides for

16 an enhanced punishment if committed by the use of

17 a deadly or dangerous weapon or device) for which

18 the person may be prosecuted in a court of any

19 State—

20 ‘‘(i) in the case of a first conviction of such

21 a crime, in addition to the sentence imposed for

22 the crime of violence or drug trafficking

23 crime—

24 ‘‘(I) knowingly possesses a firearm,

25 shall be imprisoned not less than 10 years;
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1 ‘‘(II) discharges a firearm with intent

2 to injure another person, shall be impris3 oned not less than 20 years; and

4 ‘‘(III) knowingly possesses a firearm

5 that is a machinegun or destructive device,

6 or is equipped with a firearm silencer or

7 firearm muffler, shall be imprisoned not

8 less than 30 years; and

9 ‘‘(ii) in the case of a second conviction of

10 such a crime, in addition to the sentence im11 posed for the crime of violence or drug traffick12 ing crime—

13 ‘‘(I) knowingly possesses a firearm

14 during and in relation to the crime of vio15 lence or drug trafficking crime shall be im16 prisoned not less than 20 years;

17 ‘‘(II) discharges a firearm during and

18 in relation to the crime of violence or drug

19 trafficking crime shall be imprisoned not

20 less than 30 years; and

21 ‘‘(III) discharges a firearm that is a

22 machinegun or a destructive device, or is

23 equipped with a firearm silencer or firearm

24 muffler, shall be imprisoned for life.
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1 ‘‘(iii) in the case of a third or subsequent

2 conviction of such a crime, possesses or dis3 charges a firearm in a manner described in

4 clause (i) or (ii), shall be imprisoned for life.

5 ‘‘(B)(i) Notwithstanding any other law, a court

6 shall not place on probation or suspend the sentence

7 of any person convicted of a violation of this sub8 section, nor shall a term of imprisonment imposed

9 under this subsection run concurrently with any

10 other term of imprisonment, including a term im11 posed for the crime of violence or drug trafficking

12 crime in which the firearm was used.

13 ‘‘(ii) No person sentenced under this subsection

14 shall be released for any reason whatsoever during

15 a term of imprisonment imposed under this para16 graph.

17 ‘‘(C) For the purposes of subparagraph (A), a

18 person shall be considered to be in possession of a

19 firearm if—

20 ‘‘(i) in the case of a crime of violence, the

21 person touches a firearm at the scene of the

22 crime at any time during the commission of the

23 crime; and
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1 ‘‘(ii) in the case of a drug trafficking

2 crime, the person has a firearm readily avail3 able at the scene of the crime.

4 ‘‘(D) Except in the case of a person who en5 gaged in or participated in criminal conduct that

6 gave rise to the occasion for the person’s use of a

7 firearm, this paragraph shall not apply to a person

8 who may be found to have committed a criminal act

9 while acting in defense of person or property during

10 the course of a crime being committed by another

11 person (including the arrest or attempted arrest of

12 the offender during or immediately after the com13 mission of the crime).

14 ‘‘(E) In this paragraph—

15 ‘‘(i) the term ‘crime of violence’ means an

16 offense that is punishable by imprisonment for

17 more than 1 year, and—

18 ‘‘(I) has as an element the use, at19 tempted use, or threatened use of physical

20 force against the person or property of an21 other; or

22 ‘‘(II) by its nature involves a substan23 tial risk that physical force against the

24 person or property of another may be used

25 during the course of the offense; and
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1 ‘‘(ii) the term ‘drug trafficking crime’

2 means a crime punishable by imprisonment for

3 more than one year involving the manufacture,

4 distribution, possession, cultivation, sale, or

5 transfer of a controlled substance, controlled

6 substance analogue, immediate precursor, or

7 listed chemical (as those terms are defined in

8 section 102 of the Controlled Substance Act (21

9 U.S.C. 802)), or an attempt or conspiracy to

10 commit such a crime.

11 ‘‘(F)(i) This paragraph shall supplement, but

12 not supplant, the efforts of State and local prosecu13 tors in prosecuting crimes of violence and drug traf14 ficking crimes that could be prosecuted under State

15 law.

16 ‘‘(ii) The Attorney General shall give due def17 erence to the interest that a State or local prosecu18 tor has in prosecuting a person under State law.

19 ‘‘(G) This paragraph shall not be construed to

20 create any rights, substantive or procedural, enforce21 able at law by any party in any manner, civil or

22 criminal, nor does it place any limitations on other23 wise lawful prerogatives of the Attorney General.’’.
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1 SEC. 4. TRUTH IN SENTENCING.

2 (a) IN GENERAL.—For a State to be eligible for pris3 on funds authorized under title II of the Violent Crime

4 Control and Law Enforcement Act of 1994, the Attorney

5 General must certify that the State has adopted—

6 (1) truth in sentencing laws with respect to any

7 felony crime of violence involving the use or at8 tempted use of force against a person, or use of a

9 firearm against a person, for which a minimum sen10 tence of 5 years or more is authorized, that—

11 (A) provide that defendants will serve at

12 least 85 percent of the sentence ordered; and

13 (B) provide for a binding sentencing guide14 line system that limits the discretion of sentenc15 ing judges to ensure greater uniformity in sen16 tencing;

17 (2) a pretrial detention system similar to the

18 system provided under section 3142 of title 18,

19 United States Code;

20 (3) sentences for firearm offenders where death

21 or serious bodily injury results, murderers, sex of22 fenders, and child abuse offenders that, after appli23 cation of relevant sentencing guidelines, result in the

24 imposition of sentences that are at least as long as

25 sentences imposed under Federal law (after applica26 tion of relevant sentencing guidelines); and
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1 (4) suitable recognition for the rights of vic2 tims, including consideration of the victim’s

3 perspective at all appropriate stages of criminal pro4 ceedings.

5 (b) DISQUALIFICATION.—

6 (1) IN GENERAL.—The Attorney General shall

7 disqualify a State or withdraw certification if the At8 torney General finds that the State does not comply

9 with subsection (a) or has ceased making substantial

10 progress toward compliance.

11 (2) ENTITLEMENT TO BENEFITS.—Except to

12 the extent the Attorney General otherwise directs, a

13 State that has been disqualified under this sub14 section shall not receive prison funds authorized

15 under title II of the Violent Crime Control and Law

16 Enforcement Act of 1994.

17 (c) WAIVER.—The Attorney General may waive, for

18 not more than one year, any of the requirements of this

19 section with respect to a State if the Attorney General

20 certifies that there are compelling law enforcement rea21 sons for doing so. Any State granted a waiver under this

22 subsection shall be treated as a qualifying State for

23 purposes of this section, unless the Attorney General oth24 erwise directs.
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1 SEC. 5. VICTIM RESTITUTION.

2 (a) MANDATORY RESTITUTION AND OTHER PROVI3 SIONS.—Section 3663 of title 18, United States Code, is

4 amended—

5 (1) in subsection (a)—

6 (A) by striking ‘‘may order’’ and inserting

7 ‘‘shall order’’; and

8 (B) by adding at the end the following new

9 paragraph:

10 ‘‘(4) In addition to ordering restitution to the

11 victim of the offense of which a defendant is con12 victed, a court may order restitution to any person

13 who, as shown by a preponderance of evidence, was

14 harmed physically, emotionally, or pecuniarily, by

15 unlawful conduct of the defendant during—

16 ‘‘(A) the criminal episode during which the

17 offense occurred; or

18 ‘‘(B) the course of a scheme, conspiracy, or

19 pattern of unlawful activity related to the of20 fense.’’;

21 (2) in subsection (b)(1)(B) by striking ‘‘imprac22 tical’’ and inserting ‘‘impracticable’’;

23 (3) in subsection (b)—

24 (A) in paragraph (2), by inserting ‘‘emo25 tional or’’ after ‘‘resulting in’’; and
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1 (B) by striking paragraph (4) and insert2 ing the following new paragraph:

3 ‘‘(4) in any case, reimburse the victim for—

4 ‘‘(A) necessary child care, transportation,

5 and other expenses related to participation in

6 the investigation or prosecution of the offense

7 or attendance at proceedings related to the of8 fense;

9 ‘‘(B) medical services relating to physical,

10 psychiatric, or psychological care;

11 ‘‘(C) physical and occupational therapy or

12 rehabilitation;

13 ‘‘(D) necessary transportation, temporary

14 housing, and child care expenses;

15 ‘‘(E) lost income;

16 ‘‘(F) attorneys’ fees, plus any costs in17 curred in obtaining a civil protection order; and

18 ‘‘(G) any other losses suffered by the vic19 tim as a proximate result of the offense; and’’;

20 (4) in subsection (c), by striking ‘‘If the Court

21 decides to order restitution under this section, the’’

22 and inserting ‘‘The’’;

23 (5) by striking subsections (d), (e), (f), (g), and

24 (h); and
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1 (6) by adding at the end the following new sub2 sections:

3 ‘‘(j)(1)(A) The court shall order restitution to a vic4 tim in the full amount of the victim’s losses as determined

5 by the court and without consideration of—

6 ‘‘(i) the economic circumstances of the offender;

7 or

8 ‘‘(ii) the fact that a victim has received or is en9 titled to receive compensation with respect to a loss

10 from insurance or any other source.

11 ‘‘(B) For purposes of this paragraph, the term ‘eco12 nomic circumstances’ includes—

13 ‘‘(i) the financial resources and other assets of

14 the defendant;

15 ‘‘(ii) projected earnings, earning capacity, and

16 other income of the defendant; and

17 ‘‘(iii) any financial obligations of the defendant,

18 including obligations to dependents.

19 ‘‘(2) Upon determination of the amount of restitution

20 owed to each victim, the court shall specify in the restitu21 tion order the manner and schedule according to which

22 the restitution is to be paid. The court shall consider—

23 ‘‘(A) the financial resources and other assets of

24 the offender;
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1 ‘‘(B) expected earnings and other income of the

2 offender; and

3 ‘‘(C) any financial obligations of the offender,

4 including obligations to dependents.

5 ‘‘(3) A restoration order may direct the offender to

6 make a single, lump-sum payment, partial payment at

7 specified intervals, or such in-kind payments as may be

8 agreeable to the victim.

9 ‘‘(4) An in-kind payment described in paragraph (3)

10 may be in the form of—

11 ‘‘(A) return of property;

12 ‘‘(B) replacement of property; or

13 ‘‘(C) services rendered to the victim or to a per14 son or organization other than the victim.

15 ‘‘(k) When the court finds that more than 1 offender

16 has contributed to the loss of a victim, the court may make

17 each offender liable for payment of the full amount of res18 titution or may apportion liability among the offenders to

19 reflect the level of contribution and economic cir20 cumstances of each offender.

21 ‘‘(l) When the court finds that more than 1 victim

22 has sustained a loss requiring restitution by an offender,

23 the court shall order full restitution of each victim but may

24 provide for different payment schedules to reflect the eco25 nomic circumstances of each victim.
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1 ‘‘(m)(1) If the victim has received or is entitled to

2 receive compensation with respect to a loss from insurance

3 or any other source, the court shall order that restitution

4 be paid to the person who provided or is obligated to pro5 vide the compensation, but the restitution order shall pro6 vide that all restitution of victims required by the order

7 be paid to the victims before any restitution is paid to

8 such a provider of compensation.

9 ‘‘(2) The issuance of a restitution order shall not af10 fect the entitlement of a victim to receive compensation

11 with respect to a loss from insurance or any other source

12 until the payments actually received by the victim under

13 the restitution order fully compensate the victim for the

14 loss, at which time a person that has provided compensa15 tion to the victim shall be entitled to receive any payments

16 remaining to be paid under the restitution order.

17 ‘‘(3) Any amount paid to a victim under an order of

18 restitution shall be set off against any amount later recov19 ered as compensatory damages by the victim in—

20 ‘‘(A) any Federal civil proceeding; and

21 ‘‘(B) any State civil proceeding, to the extent

22 provided by the law of the State.

23 ‘‘(n) A restitution order shall provide that—

24 ‘‘(1) all fines, penalties, costs, restitution pay25 ments, and other forms of transfers of money or
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1 property made pursuant to the sentence of the court

2 shall be made by the offender to an entity des3 ignated by the Director of the Administrative Office

4 of the United States Courts for accounting and pay5 ment by the entity in accordance with this sub6 section;

7 ‘‘(2) the entity designated by the Director of

8 the Administrative Office of the United States

9 Courts shall—

10 ‘‘(A) log all transfers in a manner that

11 tracks the offender’s obligations and the cur12 rent status in meeting the obligations, unless,

13 after efforts have been made to enforce the res14 titution order and it appears that compliance

15 cannot be obtained, the court determines that

16 continued recordkeeping under this subpara17 graph would not be useful; and

18 ‘‘(B) notify the court and the interested

19 parties when an offender is 90 days in arrears

20 in meeting those obligations; and

21 ‘‘(3) the offender shall advise the entity des22 ignated by the Director of the Administrative Office

23 of the United States Courts of any change in the of24 fender’s address during the term of the restitution

25 order.
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1 ‘‘(o) A restitution order shall constitute a lien against

2 all property of the offender and may be recorded in any

3 Federal or State office for the recording of liens against

4 real or personal property.

5 ‘‘(p)(1) Compliance with the schedule of payment and

6 other terms of a restitution order shall be a condition of

7 any probation, parole, or other form of release of an of8 fender.

9 ‘‘(2) If a defendant fails to comply with a restitution

10 order, the court may revoke probation or a term of super11 vised release, modify the term or conditions of probation

12 or a term of supervised release, hold the defendant in con13 tempt of court, enter a restraining order or injunction,

14 order the sale of property of the defendant, accept a per15 formance bond, or take any other action necessary to ob16 tain compliance with the restitution order.

17 ‘‘(3) In determining what action to take, the court

18 shall consider the defendant’s employment status, earning

19 ability, financial resources, the willfulness in failing to

20 comply with the restitution order, and any other cir21 cumstances that may affect the defendant’s ability to com22 ply with the restitution order.

23 ‘‘(q) An order of restitution may be enforced—

24 ‘‘(1) by the United States—
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1 ‘‘(A) in the manner provided for the collec2 tion and payment of fines in subchapter (B) of

3 chapter 229; or

4 ‘‘(B) in the same manner as a judgment in

5 a civil action; and

6 ‘‘(2) by a victim named in the order to receive

7 the restitution, in the same manner as a judgment

8 in a civil action.

9 ‘‘(r) A victim or the offender may petition the court

10 at anytime to modify a restitution order as appropriate

11 in view of a change in the economic circumstances of the

12 offender.’’.

13 (b) PROCEDURE FOR ISSUING ORDER OF RESTITU14 TION.—Section 3664 of title 18, United States Code, is

15 amended—

16 (1) by striking subsection (a);

17 (2) by redesignating subsections (b), (c), (d),

18 and (e) as subsections (a), (b), (c), and (d), respec19 tively;

20 (3) by amending subsection (a), as redesignated

21 by paragraph (2), to read as follows:

22 ‘‘(a)(1) The court may order the probation service of

23 the court to obtain information pertaining to the amount

24 of loss sustained by any victim as a result of the offense,

25 the financial resources of the defendant, the financial
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1 needs and earning ability of the defendant and the defend2 ant’s dependents, and such other factors as the court

3 deems appropriate.

4 ‘‘(2) The probation service of the court shall include

5 the information collected in the report of presentence in6 vestigation or in a separate report, as the court directs.’’;

7 and

8 (4) by adding at the end the following new sub9 sections:

10 ‘‘(e) The court may refer any issue arising in connec11 tion with a proposed order of restitution to a magistrate

12 or special master for proposed findings of fact and rec13 ommendations as to disposition, subject to a de novo de14 termination of the issue by the court.

15 ‘‘(f )(1) Not later than 60 days after a conviction is

16 entered on the record, and, in any event, not later than

17 10 days before sentencing, the United States Attorney (or

18 such Attorney’s delegate), after consulting with the victim,

19 shall prepare and file an affidavit with the court listing

20 the amounts subject to restitution under this section. The

21 affidavit shall be signed by the United States Attorney (or

22 the delegate) and the victim.

23 ‘‘(2) If the victim objects to any of the information

24 included in the affidavit, the United States Attorney (or

25 the delegate) shall advise the victim that the victim may
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1 file a separate affidavit and shall assist the victim in the

2 preparation affidavit.

3 ‘‘(3) If after the defendant has been notified of the

4 affidavit, no objection is raised by the defendant, the

5 amounts attested to in the affidavit filed pursuant to para6 graph (1) shall be entered in the court’s restitution order.

7 If objection is raised, the court may require the victim or

8 the United States Attorney (or the United States Attor9 ney’s delegate) to submit further affidavits or other sup10 porting documents, demonstrating the victim’s losses.

11 ‘‘(4)(A) If the court concludes, after reviewing the

12 supporting documentation and considering the defendant’s

13 objections, that there is a substantial reason for doubting

14 the authenticity or veracity of the records submitted, the

15 court may require additional documentation or hear testi16 mony on those questions.

17 ‘‘(B) The privacy of any records filed, or testimony

18 heard, pursuant to this section, shall be maintained to the

19 greatest extent possible, and such records may be filed or

20 testimony heard in camera.

21 ‘‘(5) If the victim’s losses are not ascertainable 10

22 days before sentencing as provided in paragraph (1), the

23 United States Attorney (or the United States Attorney’s

24 delegate) shall so inform the court, and the court shall

25 set a date for the final determination of the victim’s losses,
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1 which shall be not later than 90 days after sentencing.

2 If the victim subsequently discovers further losses, the vic3 tim shall have 90 days after discovery of those losses in

4 which to petition the court for an amended restitution

5 order. Such order may be granted only upon a showing

6 of good cause for the failure to include such losses in the

7 initial claim for restitutionary relief.

8 ‘‘(6) An award of restitution to the victim of an of9 fense under this chapter is not a substitute for imposition

10 of punishment under this chapter.’’.

11 SEC. 6. LUXURIES ABOLISHED AND PRISON WORK RE12 QUIRED.

13 Section 4001(b)(2) of title 18, United States Code,

14 is amended by adding at the end the following sentence:

15 ‘‘Not later than 120 days after the date of enactment of

16 the Crime Control Act of 1995, the Attorney General shall

17 implement and enforce regulations mandating prison work

18 for all able-bodied inmates in Federal penal and correc19 tional institutions. Such regulations shall also prohibit the

20 provision by the Government in inmates’ cells of television,

21 radio, telephone, stereo, or other similar amenities.’’.

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