Tough Rhetoric About Crime

Floor Speech

TOUGH RHETORIC ABOUT CRIME

Mr. THOMPSON. Mr. President, we are listening to a lot of rhetoric about crime and being tough on crime. But no matter how many cops we put on the street, no matter how many laws we pass, unless we have strong law enforcement efforts at the very top of the Justice Department and the very top of the executive branch of this Government, we are going to be letting out the back door whatever we are putting in our prison system in the front door.

In fact, the policies of an administration are much more important than any other component of our law enforcement system. An administration's decisions as to who to prosecute, how effectively to prosecute, what cases to appeal, and what positions to take, affect thousands and thousands of cases. They affect not only the specific cases that are brought but maybe even can determine what cases are brought in the future.

In other words, an administration needs to be strong in its law enforcement position. It needs to advocate the legitimate interests of the Federal Government, when Federal criminal statutes are involved. The President has engaged in strong law enforcement rhetoric. The President states that he is for the death penalty. But it is my unfortunate duty to report that the rhetoric does not match the action.

I am specifically referring to the actions of the Solicitor General. The Solicitor General in this country is the Government's lawyer. The Solicitor General advocates the Government's position before the Supreme Court of the United States. The Solicitor General is appointed by the President of the United States and confirmed by the U.S. Senate. Time after time, the position taken by the Solicitor General has been inconsistent with the rhetoric coming out of the White House.

The Solicitor General, in case after case, has refused to appeal cases in which lower courts have overruled the Government, have overturned the defendant's convictions or have made it practically impossible that the defendant be prosecuted. Instead of appealing that case, even when in some decisions there are strong dissents saying, `No, no, no, the Government is right here and the defendant is wrong,' in case after case, the Solicitor General has taken the position of the defendant, essentially, and not appealed that case to at least give a higher court an opportunity to hold for the Government.

When the Solicitor General makes a decision whether to appeal an adverse ruling, he is not in the position of a judge making an objective determination. The Solicitor General is supposed to be an advocate for us, an advocate for the people trying to enforce the law in this country. If there is a legitimate position to take in an important case--and these dissents, if nothing else, would indicate there would be in those cases--the Solicitor General is supposed to take that position and give the courts an opportunity to hold with the Government and against the defendant in those cases.

We will have more to say about that later on next week with regard to some specific cases. But there is one particular point that is very relevant. It has to do with the recent bombing case that we all know about. It has to do with the so-called Cheely decision. There, a panel of the court, not even the full court, ruled that death penalties provided in two Federal statutes, essentially statutes prohibiting sending bombs through the mails, were unconstitutional. That is the ninth circuit decision; by a lower court. It was a panel of the full court that made that decision. The Solicitor General chose not to appeal to let the full court of the ninth circuit even have an opportunity to overrule the panel.

So, as far as it stands out there, the death penalties contained in the mail bomb statutes are unconstitutional as far as that circuit is concerned. Obviously, that has some great relevance to what we are seeing now. We are all pleased that a suspect has been taken into custody with regard to the Unabomber case. Whether or not this man is charged with any of the three killings, or the terrorizing of many other people through a series of mail bombs, a jury hearing the Unabomber case should have the option of imposing the death penalty. But I fear that if he is charged in the Unabomber killings, the Justice Department may well have made it so that it is impossible for the jury or the court out there to impose the death penalty.

The problem is that the most recent Unabomber killing occurred in California. California is in the ninth circuit. The ninth circuit decided the case I referred to a minute ago in 1994, called Cheely versus United States. Cheely had been convicted of murder. He and his coconspirators arranged for a mail bomb to be sent to the post office box of a key witness against them in a trial. The witness' father was killed when he opened the packaged bomb.

Obviously, the facts are similar to the Unabomber case. Cheely was charged with interstate transport of an explosive that resulted in death and for death resulting from mailing nonmailable items. The Bush administration, which was in office at the time, asked for the death penalty. The ninth circuit panel ruled, however, that the death penalty statutes for mail bombings were unconstitutional.

The ninth circuit held that the class of persons eligible for the death penalty under these statutes was unconstitutionally broad. Now mind you, a Carter-appointed judge on that same panel dissented from that decision.

Given that President Clinton publicly supports the death penalty, it would seem reasonable to expect that the Justice Department would automatically have sought to appeal that sort of decision which struck down a Federal statute allowing the death penalty, with a strong dissent included. But the Solicitor General did not file a petition for rehearing by the full court.

In an extraordinary move, however, the full ninth circuit ordered the parties to address whether an en banc hearing should be granted. Surprisingly, the Justice Department argued that the ninth circuit should not grant review in this case.

Mr. President, the Justice Department wound up arguing against itself. Not so surprisingly, the ninth circuit then failed to grant rehearing. The Clinton Justice Department did not file an appeal with the Supreme Court.

The Judiciary Committee held an oversight hearing this past November. At that hearing, I asked Solicitor General Days why he did not file a rehearing petition in Cheely and in another case in another circuit. He indicated that although there was an argument to be raised on the other side, he did not think that the cases raised large enough concerns to justify asking for a rehearing. Of course, the constitutionality of many death sentences obtained on the basis of pre-1976 Federal statutes was at issue. He also indicated that he had discussed the case with Attorney General Reno.

The effects of this are obvious, because if this man is charged under the Federal mail bomb statutes for the Unabomber killing in California, he cannot be given the death penalty. Had the Sacramento Federal building, and not the Oklahoma City Federal building, been bombed, the death penalty might not be available to be sought against Timothy McVeigh in Federal court.

According to the Saturday Washington Post, Justice Department officials say they are `pondering whether to bring charges against Koczynski,' in the Unabomber case, `initially in Sacramento, the site of the last bombing in April 1995, or in New Jersey,' where a 1994 killing occurred. I have a good idea why they are pondering. Any other time, the prosecutor might bring charges where the most recent case occurred, and where the evidence is fresher. And, in fact, the Unabomber sent more bombs to California than anywhere else.

But the case maybe cannot be brought there if the administration desires to seek the death penalty. I do not know if the New Jersey case is as strong as the California case. The third circuit, which includes New Jersey, has not issued opinions striking down the Federal death penalty statutes.

I am deeply disturbed, however, that this administration has precluded one death penalty prosecution of the Unabomber, and now we will all have to live with the consequences.

Thank you, Mr. President.

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