President Clinton is campaigning hard on his record as a tough-on-crime, pro-death-penalty Democrat, and I, for one, have supported a number of the administration’s anti-crime policies, from the ban on assault weapons to the expansion of drug-treatment programs.
But on a distressing number of counts, the Clinton record on crime policy is far, far less credible than meets the eye. Either the president is softer on crime than he pretends, or he’s allowed his crime policy to be carjacked by the Reno-led Justice Department.
Let’s start with the latest example. On April 26, 1996, President Clinton signed the Prison Litigation Reform Act (PLRA) into law. The PLRA evolved from a provision of the 1994 crime bill intended to keep federal judges from running state prisons and imposing arbitrary caps on jail populations. Prisons in some 39 states, and about 300 of the nation’s largest jails, were operating under federal court direction. The National District Attorneys Association and other law-enforcement organizations argued persuasively that many federal court decrees were not required by the Constitution or by any federal law. Moreover, they documented how some of these orders had seriously jeopardized public safety, exploded the costs of operating jails, and made federal judges sovereign over the smallest details of prison administration.
For example, when Ed Rendell, a former D.A., became Philadelphia’s mayor, his first official act was to file a petition asking a federal district court judge to vacate her decade-long control over the city’s jail system. Without any finding of a constitutional violation, Judge Norma Shapiro had imposed a population cap on the city’s jails and used her small army of court aides to micro-manage the system. In one 18-month period alone, the cap resulted in 9, 723 re-arrests of individuals who had been freed because of the decree. While free, they committed 79 murders, 90 rapes, 701 burglaries, 959 robberies, 1, 113 assaults, 2,715 drug-dealing crimes, and 2,748 thefts. One of those murdered in cold blood was rookie Philadelphia policeman Daniel Boyle. His father, Pat, a veteran cop himself, testified before Congress and asked whether anyone could tell him and his family why Danny had to die. Nobody could.
But the provision of the 1994 crime bill that was supposed to end this judicially mandated mayhem proved too weak. Aided and abetted by the prisoners’ rights lobby, Shapiro and several other federal judges simply maintained their control via “consent decrees” that had never enjoyed the consent of the governed.
The Prison Litigation Reform Act was expressly designed to tighten the restrictions on federal judges without keeping them from intervening as necessary to protect the legitimate constitutional rights of prisoners. Its language was unambiguous. It enjoyed strong bipartisan support. On July 27, 1995, I testified at a Senate hearing at which a Justice Department official, representing the president’s stated views, endorsed the PLRA in all of its essentials.
But now the Reno Justice Department is filing brief after brief in cases from New York to Iowa to Michigan, arguing that the PLRA not only permits but requires federal courts to maintain their grip on prisons and jails. In a move that only literary deconstructionists could love, the Justice Department is acting as if the PLRA has no fixed meaning — or legislative history, for that matter. Among other baldfaced maneuvers, Reno’s department is insisting that any failure of any kind to meet any judge’s existing federal prison or jail order constitutes a “violation of a federal right.” That effectively invalidates the PLRA.
For example, would you believe the one about the 1993 federal court order requiring that certain parts of a New York jail be cleaned with Boraxo in a solution of four ounces per gallon of water? Believe it. Under the Justice Department’s insidious spin on the PLRA, a jail official who used another detergent would be violating a “federal right.” Bingo! That’s sufficient legal pretext for activist federal judges to ignore the PLRA, and thereby defy the clear will of the Congress as warmly endorsed by the nation’s crime- buster in chief.
Never mind that the duty of top Justice officials is to assist the president in faithfully executing the laws of the land. Why faithfully execute clear-cut laws you hope quietly to undermine?
Of course, one shouldn’t be too surprised. Just recall what really happened with several major provisions of the 1994 crime bill. For example, the fine print of the bill’s prison-construction provisions was hedged with all kinds of language about community-based alternatives to incarceration (read: Put more felons on probation and parole and still get your federal “prison” dollars).
Likewise, I’m all for saturation community-based policing, and I support a real federal role in assisting financially strapped big cities in thickening their thin blue lines. But the “100,000 cops” provision of the 1994 crime bill remains notable mainly as one of the cleverest policy ploys in recent political history. For instance, while administration officials have stated publicly that over 40,000 cops have been hired under the bill, the actual number as of July 1996 was probably closer to 19,000, of whom only about 12, 000 were new hires (the rest were already on the force but “redeployed”). When asked about this reckoning at a recent press briefing, Reno simply punted.
Still, nothing compares to the straight-faced performance Clinton officials gave on August 8 when the administration held a press conference to announce national reductions in certain categories of crime. They released FBI and other Justice Department data to produce tables showing that juvenile violent crime arrest rates had fallen by 2.9 percent in 1995 (the first drop in seven years), while juvenile murder arrest rates had fallen by 22.8 percent since 1993.
With few exceptions, the media uncritically reported the good news, as well as Reno’s perfunctory statements about crime rates being still too high.
Here are just a few questions the boys on the Clinton press bandwagon should have pursued on August 8 — you know, the way they would have if the attorney general’s name were Meese or Barr and the president’s were Reagan or Bush — but didn’t:
“Are the president’s policies also to blame for the over 4.4 percent annual increase in juvenile violent-crime arrest rates from 1992 to 1994, and the 16 percent increase in the juvenile murder rate in 1992-93?”
“How do you explain the 52 percent increase from 1992-94 in past-month illicit drug use among high school seniors? Don’t other of your own recently released reports and public statements by Justice officials indicate that Americans suffered over 10 million violent crimes last year and warn that juvenile crime is very likely to get worse in the years ahead?”
“One of your tables is headed ‘Four Measures of Serious Violent Crime’ and counts homicides, rapes, robberies, and aggravated assaults. It shows that the actual (as opposed to reported) number of such crimes crossed 4 million in 1992 and remained there for the first time in a decade, right? How much ‘serious’ violent crime do you think is acceptable in America, and in what, if any, sense are the other 6 million violent crimes suffered by Americans last year not ‘serious’?”
“Given that millions of Americans have moved to gated communities, invested billions in private security, and engaged in all manner of personally inconvenient but necessary behavior to avoid crime, shouldn’t we be seeing even bigger drops in crime by now?”
“Does increased use of imprisonment have anything to do with recent drops in crime, or do you still believe, as you and many of the administration’s crime advisers argued publicly early in the administration, that prisons hold far too many petty criminals and ‘non-violent’ drug offenders? To your knowledge, does the president now share that view, or has he ever shared it?”
“These crime data are not normally released at this time of year or in such a handy, user-friendly form. Did the White House, which launched its reelection drive early on with crime ads, have anything whatsoever to do with the production, timing, or public release of this ‘good news’ only a few weeks before the presidential nominating conventions? If so, is that a justifiable use of the Justice Department?” (Devilish translation: Dick Morris has a well-known soft spot for rape defendants, but data-starved criminologists, too?)
And, to dream on, here’s a small batch of Clinton-on-crime questions that the national press should start asking today:
* Does the president support or oppose the PLRA?
* Is the president, who only this summer heralded the need for a victims’ rights amendment to the Constitution, actually as solicitous of prisoners’ rights as the behavior of his own Justice Department would have one conclude?
* How can the president scoff at Republican charges that he has appointed soft-on-crime judges while presiding over efforts by his own administration to re-empower these very judges?
I find it hard to believe that President Clinton, a policy wonk for the ages, doesn’t know the basic crime policy details almost as well as he knows the overnight polling results. If this is what one gets out of the first Clinton administration during a reelection drive, what is to be expected out of a second Clinton-Reno Justice Department?
ACLU, take heart.
