Among the most offensive of the Contract on America's legislative proposals was the proposed "Taking Back Our Streets Act" overwhelmingly passed by the House, (with the exception of the provision that called for new mandatory minimum gun offenses) and it's Senate counterpart, S.3.

First, some background, from a series of monthly articles I wrote beginning in 1994 and continuing for several years on crime and civil liberties legislative proposals in Congress. (Most are available on Lexis.) They were published monthly in The Champion, the excellent magazine of the National Association of Criminal Defense Lawyers. This was was written in Jan. 1996, as a kind of "that was the year that was" piece for 1995.

1995 Began with the inauguration of the newly Republican-dominated Congress. The first order of business for the House was to promise the passage of new laws within the first 100 days of the session, lumped together in a decorative but ill-conceived package titled "Contract With America." One of the components of the "Contract" called for the passage of "tougher" crime laws, bundled together into a set of ten bills named the "Taking Back Our Streets Act" (TBOSA).

Not to be outdone, the Senate responded with its own bill, S-3, containing such legislative proposals as the total abolition of the exclusionary rule; the creation of a new obstruction of justice offense aimed at lawyers, prohibiting the filing of any pleading containing a false statement of fact or law; and the creation of an exemption for federal prosecutors from adherence to state and local ethical rules of conduct governing all other lawyers.

In an article I wrote at the beginning of 1995, Contract With America, The Republican Nightmare, after describing the provisions in the crime bill component, I wrote:

If we allow the "Taking Back Our Streets Act" to pass without a massive protest, we will share in the responsibility for the veritable police state that results. We must convince Congress that these measures will not further the goal of reducing crime.

An increase in punishable offenses and in the length of sentences over the Draconian measures currently in effect will not deter crime. It will place law enforcement and correction officials at tremendous risk of physical harm. It will create even greater racial disparities. And it will do nothing to help at-risk youth.

The Republicans' professed goal of achieving fairness and impartiality is a sham. The death penalty is currently imposed in a racially discriminatory manner. By limiting habeas challenges by death row inmates, and requiring jurors to impose the death penalty upon a simple finding of more aggravating than mitigating factors, without regard to mercy and compassion, we will escalate, not reduce this disparity. The provisions pertaining to aliens amount to ill-disguised racism.

Stripping the 1994 Crime Control Act of all prevention funding will further target the poor and minorities. It is not an informed mind which believes that providing funds to build more prisons, to hire more police, and to monitor school grounds, while prohibiting expenditures on social programs and alternative correctional facilities, will result in a reduction of violent crime.

In 1986, we did not mobilize and mandatory minimum sentences were enacted. In 1987, we did not mobilize and the Federal Sentencing Guidelines were enacted. In 1994, we were partially mobilized, and therefore were partially successful, in our efforts to prevent the passage of the worst provisions of the Clinton crime bill. In 1995, with the threat of the Republican Contract With America, we must intensify and expand our efforts.

As to S.3, in yet a later article I wrote:

Among the low points of S. 3 are: the abolishment of the Fourth Amendment Exclusionary Rule and the creation in its stead of a tort claim with a cap of $30,000 in almost all cases; the almost complete evisceration of habeas relief; an increase in mandatory minimum offenses; the complete exemption of federal prosecutors from ethical rules other than those adopted by the Attorney General, and allowance of contact by federal prosecutors and agents with opposing parties known to be represented by counsel; the creation of a new obstruction of justice offense for attorneys; the shifting of the burden of proof in cases involving an alleged involuntary or coerced confession, from the prosecution to the defendant; further restrictions on the application of the mandatory minimum safety valve; and the mandatory treatment of juveniles 13 and over charged with violent crimes as adults (with no opt-out provisions for Native Americans on reservations).

Terrorism bills were proposed that year that would have been more aptly named "the McCarthyism, Korematsu and Star Chamber Renewal Act." All of them contained massive assaults on the Bill of Rights and would have inflicted more damage on constitutionally protected liberties than any other legislation in recent memory.

I'm not sparing Clinton here. He signed the final bill, known as the Law Enforcement Act of 1994. It was the first Omnibus Crime Bill to be passed by Congress since 1988. He also signed the "The Antiterrorism and Effective Death Penalty Act of 1996."

The point is, putting someone like Rep. John Shadegg in a House leadership position invites a disaster for all Americans who care about their freedoms. Is any Republican better? Probably not by much. The only solution is to take back Congress in 2006 and hope the Democrats we elect are more sensitive to civil liberties and criminal justice issues than those who supported the Contract on America.