The Hill’s Hidden Crime Agenda

This article appeared in the Washington Times on June 15, 1999.

As the House is poised to vote on a major crime bill, the media can beexpected once again to focus only on the bill's gun control provisions.Unfortunately, by ignoring the other provisions, a wide variety ofdangerousmeasures may sneak past public scrutiny.

That is just what happened with the recently passed Senate "juvenile crimebill," S. 254. The bill is laden with provisions to expand forfeiture,increase wiretapping without warrant, promote drug testing and immunizepolice who commit violent crimes from criminal punishment. When senatorsare presented with a 648-page-long bill, few bother to read it. Thus, manysenators who voted for S. 254 may have been unaware that the bill containsasweeping new forfeiture provision that allows U.S. attorneys to baseforfeiture on violations of state law -- even misdemeanors.

Currently, there is a special federal forfeiture statute that applies tothe transfer of military information to a foreign government and anyfederalcrime in which a person is physically harmed, such as rape or assault. Itstates that if a convicted criminal makes money from selling their story ofthe crime, any profits from the sale may be forfeited.

S. 254 significantly expands that statute to include any felony, includingstate felonies, and any state misdemeanor involving physical harm. Insteadof just applying to profits from the sale of a criminal's story, thestatuteas revised by S. 254 would allow forfeiture of any enhanced value, in anyproperty owned by the criminal, that resulted from the crime. But themeasure ignores the constitutional fact that forfeitures for state lawviolations ought to be determined by state legislatures and carried out bystate and local prosecutors, not by the federal government.

Also buried deep within S. 254 is language that for the first time allowsthe police to intercept the content of electronic communications -- thecontents of pager messages -- without a warrant. Those messages can revealinformation about a person's travel schedule, private life and currentlocation. The bill's "cloned pager" language is the latest expansion ofwiretap authority to be buried in a large, complex bill where the public,which is generally skeptical about wiretapping, is not likely to notice."Public safety" seems to demand that the public be protected from anyopportunity to debate whether the federal government needs more power topeek in on the public without a search warrant.

Another section of S. 254 includes provisions to encourage suspicionlessdrug testing for students -- even though Littleton murderers Eric HarrisandDylan Klebold, whose rampage was the pretext for rushing the legislationthrough Congress, were both "drug free" according to their autopsies.

Although they ignored the wiretap and drug testing provisions of S. 254,the media did glance at the bill's body armor provisions, but the mediadidn't report the provision's details, which turn a reasonable concept intoa very unreasonable law.

S. 254 requires at least a two-sentencing-level increase for any crime inwhich the defendant uses body armor. Such an increase can add as much as36months to a defendant's sentence. There is no requirement that thedefendant's "use" be in conjunction with a violent crime or for any type ofoffensive purpose. The enhancement would apply to a liquor store owner whocheats on his taxes while wearing body armor for protection from robbers.

Reflecting a view of law enforcement that would have horrified the framersof the Constitution, the bill grants a special exemption from the bodyarmorsentencing enhancement. The exemption applies only to law enforcementofficers who while "acting under color of the authority" of lawenforcement,"violate the civil rights of a person." In other words, police officerswhowear body armor while robbing drug dealers, prostitutes and gamblingoperations are immune from the sentencing enhancement. So are policeofficers who rape, rob or murder while on the job.

So if the police arrest a gun store owner for improper paperwork and theowner is wearing body armor at the time of his arrest, he may spend anadditional three years in prison. But if the arresting officers, who arealso wearing body armor, rape the arrestee with a toilet plunger, they arespecifically exempt from additional punishment.

If representatives don't even know what is in a bill they're voting for,they are not really representatives. If Congress is serious about "law andorder," it ought to take the time to read the laws it is considering beforecalling a final vote.

David B. Kopel

Dave Kopel is an adjunct professor at New York University Law School and an associate policy analyst at the Cato Institute.