SPEAKERS CONTENTS INSERTS Tables
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67–341
2000
PROBATION OFFICERS' PROTECTION ACT OF 2000 AND CHILD SEX CRIMES WIRETAPPING ACT OF 1999
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 4423 and H.R. 3484
JULY 13, 2000
Serial No. 118
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Crime
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BILL McCOLLUM, Florida, Chairman
STEVE CHABOT, Ohio
BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
CHARLES T. CANADY, Florida
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MARTIN T. MEEHAN, Massachusetts
STEVEN R. ROTHMAN, New Jersey
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
GLENN R. SCHMITT, Chief Counsel
DANIEL J. BRYANT, Chief Counsel
RICK FILKINS, Counsel
CARL THORSEN, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
HEARING DATE
July 13, 2000
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TEXT OF BILL
H.R. 4423
H.R. 3484
OPENING STATEMENT
McCollum, Hon. Bill, a Representative in Congress From the State of Florida, and chairman, Subcommittee on Crime
WITNESSES
De Santis, Judith M., executive vice president, Federal Law Enforcement Officers Association
Johnson, Hon. Nancy L., a Representative in Congress From the State of Connecticut
Knowlton, David R., Deputy Assistant Director, Federal Bureau of Investigation, Criminal Investigation Division
Kopel, David B., research director, Independence Institute, Golden, CO
Ryan, Robert, chief probation officer, District of Massachusetts
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Sullivan, Emmet G., United States District Judge, District of Columbia
Varrone, John, Acting Assistant Commissioner, Office of Investigations, United States Customs Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Administrative Office of the United States Courts: Memorandum to all Chief Judges, United States District Courts, dated April 23, 1987
De Santis, Judith M., executive vice president, Federal Law Enforcement Officers Association: Prepared statement
Johnson, Hon. Nancy L., a Representative in Congress From the State of Connecticut: Prepared statement
Knowlton, David R., Deputy Assistant Director, Federal Bureau of Investigation, Criminal Investigation Division: Prepared statement
Kopel, David B., research director, Independence Institute, Golden, CO: Prepared statement
Regulations of the Director of the Administrative Office Concerning Carrying and Using Firearms By United States Probation and Pretrial Services Officers
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Sullivan, Emmet G., United States District Judge, District of Columbia: Prepared statement
Varrone, John, Acting Assistant Commissioner, Office of Investigations, United States Customs Service: Prepared statement
APPENDIX
Material submitted for the record
PROBATION OFFICERS' PROTECTION ACT OF 2000 AND CHILD SEX CRIMES WIRETAPPING ACT OF 1999
THURSDAY, JULY 13, 2000
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m. in room 2237, Rayburn House Office Building, Hon. Bill McCollum (chairman of the committee) presiding.
Present: Representatives Bill McCollum, Steve Chabot, Bob Barr, George W. Gekas, Howard Coble, Robert C. Scott, Steven R. Rothman, and Sheila Jackson Lee.
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Staff present: Glenn R. Schmitt, chief counsel; Bobby Vassar, minority counsel; and Veronica L. Eligan, staff assistant.
OPENING STATEMENT OF CHAIRMAN McCOLLUM
Mr. MCCOLLUM. This morning we are holding a hearing on two different bills that we are going to consider separately with two panels. I would like to start first with the hearing on H.R. 4423, the Probation Officers' Protection Act of 2000, introduced by our colleague, Congressman Bob Barr on May 11 of this year. It would authorize probation and pretrial services officers to carry firearms.
[The bill, H.R. 4423, follows:]
106TH CONGRESS
2D SESSION
H. R. 4423
To amend title 18, United States Code, with respect to the authority of probation officers and pretrial services officers to carry firearms.
IN THE HOUSE OF REPRESENTATIVES
MAY 11, 2000
Mr. BARR of Georgia (for himself, Mr. DOOLITTLE, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary
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A BILL
To amend title 18, United States Code, with respect to the authority of probation officers and pretrial services officers to carry firearms.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Probation Officers' Protection Act of 2000''.
SEC. 2. NEW AUTHORITY FOR PROBATION AND PRETRIAL SERVICES OFFICERS.
(a) SECTION 3603 AMENDMENT.—Paragraph (9) of section 3603 of title 18, United States Code, is amended to read as follows:
''(9) be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the Director of the Administrative Office of the United States Courts; and''.
(b) SECTION 3154 AMENDMENT.—Paragraph (13) of section 3154 of title 18, United States Code, is amended to read as follows:
''(13) be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the Director of the Administrative Office of the United States Courts.''.
Mr. MCCOLLUM. Probation officers and pretrial services officers are employees of the Judicial Branch. They perform a number of functions, including preparing reports to the court concerning whether release on bail is appropriate for a defendant, monitoring compliance with bail orders by all defendants, and monitoring activities of persons who are on parole or on supervised release. Under current law, they are authorized to carry firearms if approved by the district court. In practice, the chief judge of the district court in each of the 94 Federal judicial districts decides whether probation and pretrial services officers may carry firearms. As a result, officers in 84 judicial districts may carry them, while officers in the remaining 10 may not.
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H.R. 4423 would make this practice uniform by amending current laws to authorize all probation officers and pretrial services officers to carry firearms. The bill would require all such officers to first complete any safety and proficiency training or testing as may be required by the Director of the Administrative Office of the United States Courts.
I think we all agree that we should take whatever steps are necessary to protect our Federal law enforcement officials. Probation officers and pretrial services officers are important elements of our criminal justice system. We should never send them into harm's way without ensuring that we have taken the proper precautions to protect them. I don't know if authorizing all of these officers to carry a firearm is the answer, but I remain open minded to that as a solution. I am curious, however, as to why judges in 84 districts think allowing these officers to carry firearms is a good idea, but judges in only 10 districts do not. I look forward to the testimony of our witnesses on this issue.
I want to again thank Mr. Barr for bringing this issue to the attention of the subcommittee and for his leadership in introducing the bill to address it.
Mr. Scott?
Mr. SCOTT. Thank you, Mr. Chairman.
I am pleased to join you in convening the hearing on H.R. 4423, the Probation Officers' Protection Act of 2000, authored by our colleague, Representative Barr from Georgia, a member of the subcommittee. While I can appreciate the motive evidenced by the title of the bill, I am not convinced that the bill is warranted and therefore I am delighted that you are holding the hearing today.
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The law already allows probation officers to be authorized by their employer to carry firearms in the scope of their duties, consistent with the rules and regulations of the Administrative Office of the Courts. Close to 90 percent of the judicial districts already authorize probation officers to carry firearms and two other districts now have decided to do so.
Yet it is my understanding that in the districts where POs are authorized to carry firearms, not all are authorized to carry firearms in all situations. I also understand that not all POs want to carry firearms, nor think it is a good idea to give individual POs the authority to make that decision.
While some may believe that carrying a firearm is an issue that any PO should be able to decide for himself or herself under all circumstances, whether they are just starting on the job or working only behind a desk, it seems to me to be a matter much better decided by the PO's employer rather than Members of Congress. Mr. Chairman, it also seems that out of a consideration of comity, if not a consideration of separation of powers, that we would refrain from giving judges' employees the authority to thumb their noses at their bosses on an issue as volatile as carrying firearms.
We responded to judges' requests 4 years ago to let them decide whether and under what circumstances a PO should be armed. There is no evidence that this authority has been abused in any way. And I understand there has not been a single incident in which a PO has had to fire a weapon in the line of duty during the interim time period.
Mr. Chairman, I am looking forward to the testimony of the witnesses for enlightenment on the need for the bill and the issues that surround it.
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Thank you very much.
Mr. MCCOLLUM. Thank you very much.
Mr. Barr?
Mr. BARR. Thank you, Mr. Chairman.
I am somewhat mystified by the statement of the gentleman from Virginia that granting this authority—which would simply make uniform a policy that now is not uniform and clearly is a matter at the discretion of the Congress and this particular subcommittee—why granting this authority would be something akin to thumbing their nose at the district judges. I think that is an absurd analogy. I have no idea what the gentleman from Virginia is talking about.
In my experience—maybe his experience is different with probation officers—but in my experience as a U.S. attorney and in my civilian life, all Federal probation officers that I know are men and women of tremendous distinction and professionalism who put their lives on the line in their work just as other law enforcement officers do. Granting a law enforcement officer the ability to protect himself or herself in the performance of their duty is not thumbing their nose at anybody. It is simply saying that these men and women do put their lives at stake.
They have a very difficult job. They carry it out with professionalism and sometimes at great danger to themselves. There is no reason under Federal law to say that some are worthy of the protection that is afforded by the ability to carry firearms and others are not.
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I really do resent the implication in this gentleman's statement that somehow simply granting them this authority is thumbing their noses at the judges. It is not in any way, shape or form. We are simply here today in our capacity, with jurisdiction over the Federal Criminal Code—which is where these provisions are found in title 18—and this ought to be a very simple matter.
I am somewhat mystified by the opposition to this bill. It may simply be a jurisdictional or bureaucratic problem or dispute, but I thank the chairman for holding this hearing today. While it should be a very simple matter—one that all should agree on, that we are simply saying that we ought to have a uniform policy—somehow it is not. People on the other side seem to think that we ought to not have a uniform policy. I would certainly be interested to hear their reasons why and perhaps something a little more substantive than that this would be thumbing their nose at the judge.
Under current legislation, Mr. Chairman, as you know, Federal probation and pretrial officers are permitted to carry firearms, but only if approved by the district court. This policy has led to inconsistencies among districts around the Nation. Some districts readily grant officers the right to bear arms while other districts severely restrict or deny officers in their jurisdiction this right due to factors such as local sentiment about gun control or personal bias.
Presently, only 84 judicial districts permit probation officers to carry, leaving 10 without express authority granting this right to their fellow officers. I believe this is a serious threat to the personal safety of these officers in those 10 judicial districts. These men and women routinely perform contact visits with known criminals, often in dangerous areas where law enforcement is viewed with resentment. Should we not grant Federal probation officers the same basic level of safety afforded other law enforcement officials conducting essentially the same duties in the same areas and allow them to protect themselves?
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To address this problem of inconsistent application of Federal policy, I introduced H.R. 4423, the Probation Officers' Protection Act. This legislation simply grants Federal pretrial and probation officers in all Federal judicial districts the right to carry firearms so long as they complete the proper safety training. It seeks to protect all those officers who risk their lives each and every day to ensure they remain safe.
I urge all members to help ensure the safety and protection of our Federal pretrial and probation officers by supporting their right to carry firearms and protect themselves by supporting this important legislation.
Thank you, Mr. Chairman, for your time and the time of this subcommittee and the time of the witnesses. Like you, I look forward to hearing from our witnesses.
Mr. MCCOLLUM. Mr. Rothman, do you have an opening comment?
Mr. ROTHMAN. Thank you, Mr. Chairman.
I, too, look forward to learning more about the need for this legislation. I thank the gentleman for bringing this matter to our attention.
I approach the hearing with an open mind but with some fundamental questions, namely: If in fact the existing system of allow probation officers to have weapons is based on an act of Congress, why then didn't the Congress, when it enacted that legislation, determine that? Why did they do it the way they did it? Why did they do it that way? Did they not hold hearings? Has something changed in America? If it has changed, then of course we should address that.
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Is there a problem other than a person's individual belief that it is simply a wrong that needs to be righted when there is not a uniform policy with regards to officers of this type? But nonetheless, if there is no real problem, if in fact there have been no incidents where officers have been in danger or the incidents are de minimis, then we want to wonder, Should we fix something that is not broken in light of certain opponents to this proposed legislation who suggest that there would be additional dangers arising out of this legislation?
I haven't come to any conclusions about these questions and I am looking forward to learning more.
Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Rothman.
Mr. MCCOLLUM. I would like to introduce our panel and invite them to join us here at the witness table as I do so.
The first witness on our list is the Hon. Emmet G. Sullivan, United States District Judge, District of Columbia. Judge Sullivan was nominated by President Clinton and confirmed by the Senate in 1994. He testifies here today on behalf of the Committee on Criminal Law of the Judicial Conference of the United States. Judge Sullivan received his undergraduate and law degrees from Howard University.
Our second witness is Judith M. De Santis, Executive Vice President, Federal Law Enforcement Officers Association. She is also a special agent for the United States Drug Enforcement Administration. Ms. De Santis joined the DEA in 1991 and has worked in the Newark Field Division and the New York Division. Before joining the DEA, Ms. De Santis served almost 12 years as an officer in the United States Army. She received her master's degree from Columbus College and her MBA from the Florida Institute of Technology, which I note is in my State.
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Robert Ryan, our third witness, is the chief probation officer for the District of Massachusetts. He has served as a probation officer for over 20 years. Before becoming a Federal probation officer, he served as a probation officer in the Massachusetts State system for 9 years. He received his undergraduate degree from Holy Cross.
I thank all of you for coming today.
Judge Sullivan, we will begin with you. I will say that the entire testimony of each of you, as submitted in writing, will be admitted into the record without objection. I hear none, and it is so done.
Judge Sullivan, you may summarize as you see fit.
STATEMENT OF EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE, DISTRICT OF COLUMBIA
Mr. SULLIVAN. Mr. Chairman and members of the subcommittee, my name is Emmet G. Sullivan. I am a United States District judge for the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I Chair that committee's Legislative Subcommittee.
On behalf of the Conference, I appreciate the invitation to testify today regarding H.R. 4423. The Judicial Conference unequivocally opposes this legislation. However, before I elaborate on the reasons for our opposition to H.R. 4423, I would first like to take a moment to put this issue in context by explaining the role of our Federal probation and pretrial services employees, as well as our current firearms program. I believe this background will assist you in understanding our opposition to this legislation.
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Federal probation and pretrial officers are employees of the district court. They are appointed by the judges they serve. The authority of the court to supervise them is exercised by a chief probation officer or a chief pretrial services officer.
Probation officers have two basic duties. They conduct presentence investigations and supervise offenders. In the presentence report, the probation officer assesses the probability of risk to the community in the form of future criminal behavior, the harm caused by the offense, the need for restitution, and the defendant's ability to pay sanctions. Probation officers are also responsible for supervising offenders placed on probation and supervised release.
Like probation, Federal pretrial officers also have the two main functions of investigation and supervision. Pretrial officers investigate defendants charged with a criminal offense and submit reports to the court that include recommendations for conditional release or pretrial detention. Pretrial officers also supervise defendants released to their custody and monitor defendants' compliance with the release conditions imposed by the court.
Federal probation and pretrial officers are not law enforcement officers with criminal investigative and policing responsibilities traditionally found in the Executive Branch. They are not hired centrally, as are Executive Branch law enforcement officers. Further, they do not perform general policy type functions.
While probation officers have authority under section 3606 to arrest supervisees for a violation, existing policy discourages probation officers from arresting apparent violators. Instead, probation officers are cautioned to obtain an arrest warrant to be executed by the United States Marshals.
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The situation with pretrial officers is even clearer. They do not have any statutory authority to make arrests. Pretrial officers are required to inform the court and the United States attorney of all apparent violations which may result in the issuance of an arrest warrant that is executed by the U.S. Marshals Service. Since officers do not have primary law enforcement responsibilities and do not make arrests, their activities can currently be performed in such a way as to enhance their safety and minimize danger, depending upon the circumstances.
Currently, 83 of the 94 district courts—or more than 88 percent—participate in the firearms program and authorize officers to carry firearms. Several of the remaining 11 districts are considering participation. Of the approximately 4,700 probation and pretrial officers nationwide, only about 800 are in offices that do not currently permit officers to carry firearms. In the offices that do permit officers to carry, more than 2,700—nearly 60 percent—are currently authorized to carry firearms.
The authority for carrying firearms was originally approved in 1975 by the Judicial Conference. The policy for carrying firearms requires individual officer justification and allows the district court to consider which officers may carry and under what circumstances.
The 1975 policy permitted officers to carry firearms only in those districts in which State law permitted them to carry. While this presented no problems in most States, there were several districts where State authorities determined that the officers were not authorized to do so pursuant to State law.
In March 1991, the Judicial Conference approved draft legislation to authorize probation and pretrial officers, with the approval of their courts, to carry weapons under regulations to be adopted by the Director of the Administrative Office of the United States Courts. The legislation was successfully passed in the 104th Congress.
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Under the leadership of the Judicial Conference, the Federal probation and pretrial services firearms program has come to stress rigorous training and certification requirements, objective justification for the need to carry firearms, and public safety. Sometimes the decisions of a particular court or chief probation or pretrial officer may not be popular with all officers who may have a different idea about when and where it is appropriate for them to carry firearms.
For example, some courts limit the carrying of firearms to on-duty situations, not allowing officers to carry them off duty. Frankly, a decision that disallows off-duty officers from carrying firearms does not appear to me to be unreasonable. Nor does it appear to put these officers at untoward risk.
The effect of H.R. 4423, if enacted into law, would be to eliminate the authority of the courts to supervise and direct their own employees regarding the use of firearms. The bill would prohibit the employer and supervisor of these employees to direct in any manner the use of firearms in connection with their official duties. This will result in officers possessing carte blanche authority to carry a firearm whenever, wherever, and in whatever manner they see fit.
To my knowledge, no other Federal employee in America possesses such unbridled firearms authority. Needless to say, insulating a Government employee from supervision as to an important and sensitive facet of his or her official duties would likely be an unprecedented act of Congress.
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If it were passed, H.R. 4423 would constitute an extreme and unwarranted interference in the day-to-day operations of the Federal Judiciary. For these reasons, the Judicial Conference strenuously objects to the passage of this legislation.
It is critical for both the court and the chief probation or chief pretrial officers to have control over whether and under what circumstances their employees may carry firearms in the course of their official duties. At the very least, this enables the court to determine under what conditions it is appropriate for probation and pretrial officers to carry firearms, minimize the potential liability of both the district and the United States, ensure continuity and program standards, and ensure effective and necessary training.
Compounding the court's loss of authority over firearms, H.R. 4423's specific elimination of the Director's rules and regulations would gut even the most basic parameters of the Judiciary's firearms program. For example, under current regulations, an officer may use lethal force only in the case of self defense or the defense of a fellow officer. Absent such control, an officer may engage in a more proactive use of his firearm, resulting in possible harm to the officer, innocent bystanders, and the defendant, as well as civil litigation against the officer and the court.
Officers would no longer be required to secure their weapon at their residence with a locking device. Officers would no longer be required to submit an inventory of each weapon they carry in the course of official business. And of great concern, under H.R. 4423, chief probation and pretrial officers would lose their current capacity to inhibit an officer's ability to carry a firearm for personal, emotional, mental, physiological, and performance-related reasons.
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The loss of any one of these regulations or policies would be injurious to a coherent, rational firearms program. The loss of all of them—and many more, I might add—would be nothing less than a disaster waiting to happen.
However, even if all these specific problems were resolved, one fact would remain. Any legislation that removes from the district courts this level of control over their own employees would constitute an unparalleled interference in the authority of the courts to carry out their duties and responsibilities as provided under Article III of the Constitution of the United States. This bill intrudes upon a relationship that has well served both the Judiciary and the American public for many years. And as you can see from my testimony here today, it is totally without justification.
On behalf of the Judicial Conference, I strongly urge you to oppose this legislation.
Once again, I thank you, Mr. McCollum, for the opportunity to appear before you today. I am prepared to respond to any questions you or other committee members might have about this issue.
Thank you, sir.
[The prepared statement of Judge Sullivan follows:]
PREPARED STATEMENT OF EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE, DISTRICT OF COLUMBIA
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Mr. Chairman, and Members of the Subcommittee, my name is Emmet G. Sullivan. I am a United States District Judge for the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I chair that Committee's Legislative Subcommittee.
On behalf of the Conference I appreciate the invitation to testify today regarding H.R. 4423. The Judicial Conference unequivocally opposes this legislation. However, before I elaborate on the reasons for our opposition to H.R. 4423, I would first like to take a moment to put this issue in context by explaining the role of our federal probation and pretrial services employees, as well as our current firearms program. I believe this background will assist you in understanding the ill-considered nature of this legislation.
FEDERAL PROBATION AND PRETRIAL SERVICES
Federal probation and pretrial services officers are employees of the district court. They are appointed by the judges they serve. See 18 U.S.C. §3152, 3602. The authority of the court to supervise them is exercised by a ''chief'' probation officer or a ''chief'' pretrial services officer. 18 U.S.C. §3152, 3602. These employees are truly an integral part of the court's staff—particularly in the management of its criminal docket.
Probation officers have two basic duties. They conduct presentence investigations and supervise offenders. See 18 U.S.C. §3603. In the presentence report, the probation officer assesses the probability of risk to the community in the form of future criminal behavior, the harm caused by the offense, the need for restitution, and the defendant's ability to pay sanctions, such as a fine, restitution or costs. The report is used by the court to determine an appropriate sentence under the sentencing guidelines promulgated by the United States Sentencing Commission, and is later used by the Bureau of Prisons to designate the offender to an appropriate penal institution. Of equal importance with the presentence investigation, probation officers are also responsible for supervising federal offenders placed on probation and supervised release whose conditions of release to the community are set by the court. Those conditions may include treatment for substance abuse or mental illness, home confinement, payment of a fine or restitution, community service, and restrictions on travel and association.
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Like probation, federal pretrial services officers also have the two main functions of investigation and supervision. See 18 U.S.C. §3154. Pretrial services officers investigate defendants charged with a federal criminal offense and submit reports to the court that include recommendations for conditional release, or pretrial detention. Pretrial services officers also supervise defendants released to their custody and monitor defendants' compliance with the release conditions imposed by the court.
Within the broad statutory directives established under §3603 and 3154, probation and pretrial services officers' day-to-day activities are directed by the court and the chief officer. Likewise, the Director of the Administrative Office of the U.S. Courts has only limited, statutorily defined authority over probation and pretrial services officers, chiefly in the area of qualifications standards and rates of compensation. See 18 U.S.C. §3672, 3153(a)(1). See also 28 U.S.C. §604(a)(9).
Federal probation and pretrial services officers are not classified in the Office of Personnel Management occupational series as GS–1811 positions, that is, as law enforcement officers with criminal investigative and policing responsibilities traditionally found in the executive branch of government. Rather, probation and pretrial services officers occupy positions that are unique to the federal judiciary. Officers are appointed by the individual district courts and carry out responsibilities under the jurisdiction of that district court. They are not hired centrally, as are executive branch law enforcement officers. Further, they do not perform general police type functions. The law enforcement authority of probation and pretrial services officers is limited to the authority provided in 18 U.S.C. §3603 and 3154, and is further limited to executing the orders of the court as specified in each particular case.
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While probation officers have statutory authority under §3606 to arrest a probationer or a person on supervised release for a violation with or without a warrant, existing policy discourages probation officers from arresting apparent violators. Instead, probation officers are cautioned to initiate violation proceedings with the court and obtain a warrant of arrest that can then be executed by the United States Marshals Service. The Committee on Criminal Law of the Judicial Conference has indicated its disapproval of probation officers making arrests, noting that arrest responsibility has traditionally belonged to the Marshals Service. See Supervision of Federal Offenders, Monograph 109, Chapter V, p. 49. See also Report of the Judicial Conference of the United States, March 1993, p. 13. The situation with pretrial services officers is even clearer because they do not have any statutory authority to make arrests. Pretrial services officers are required under 18 U.S.C.§3154(5) to inform the court and the United States attorney of all apparent violations, which may result in the issuance of an arrest warrant that is executed by the U.S. Marshals Service.
Probation and pretrial services officers receive specialized training that is tailored to their unique role and mission within the federal judiciary. To also require specialized law enforcement training in making arrests and performing work that is more police related, in a responsible and safe manner, would be at the expense of training and development that is more relevant to their actual duties, as set forth in §3603 and 3154. Participation in activities beyond those for which officers are trained or authorized would not only be inappropriate for their role, but also dangerous for the officers and for third parties. Moreover, it would expose the officers to loss of immunity from liability, loss of services of the Department of Justice in providing a defense for these officers, and loss of Federal Tort Claims Act protection. Conversely, however, since officers do not have primary law enforcement responsibilities, and do not make arrests, their activities can currently be performed in such a way as to enhance their safety and minimize danger, depending upon the circumstances.
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It is entirely reasonable and proper for a district court or a chief to decide not to invest the time and expense of having officers practice and qualify in the use of firearms if other self-defense policies and practices are deemed as effective in that particular jurisdiction. The chief in one district of which I am aware believes that the many hours that must be invested in firearms training are better used in developing verbal skills and non-lethal self-defense training that he deems more appropriate and useful for his probation officers. That chief believes that carrying a firearm is incompatible with the role of the probation officer to assist a person under his or her supervision to ''bring about improvements in his conduct and condition.'' 18 U.S.C. §3603 (3).
FIREARMS PROGRAM
Currently, 83 of the 94 district courts, or more than 88 percent, participate in the firearms program and authorize officers to carry firearms, and several of the remaining 11 districts are considering participation. Of the approximately 4,700 probation and pretrial services officers nationwide, only about 800 are in offices that do not currently permit officers to carry firearms. In the offices that do permit officers to carry, more than 2,700—nearly 60 percent—are currently authorized to carry firearms.
The authority for carrying firearms was originally approved in 1975 by the Judicial Conference which specifically provided that probation officers may be authorized to carry firearms after ''[t]he probation officer has presented to the chief probation officer sufficient reasons in writing why the carrying of a firearm is reasonably necessary: (1) in the performance of his duties generally, or (2) in the performance of duty in a specified assignment.'' See Report of the Judicial Conference of the United States, March 1975, pp. 20–21. The authority to carry firearms under certain circumstances as reflected in the 1975 policy was expanded by the Judicial Conference to include pretrial services officers in September 1985. See Report of the Judicial Conference of the United States, Sept. 1985, p. 64. The policy for carrying firearms requires individual officer justification and allows the district court to consider which officers may carry and under what circumstances. The presumption under Judicial Conference policy is still that officers should carry firearms only for defensive purposes and only with the approval of their district court.
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The 1975 policy permitted officers to carry firearms only in those districts in which state law permitted them to carry. While this presented no problems in most states, there were several districts where the chief judges had approved the carrying of firearms by officers, but the state authorities determined that the officers were not authorized to do so pursuant to state law. At least one state gave clearance for federal probation officers to carry firearms, yet denied such clearance for pretrial services officers. There was also the problem of officers living in one state but working in another where a firearms permit was required.
Because of these problems, in March 1991 the Judicial Conference approved draft legislation to authorize federal probation and pretrial services officers, with the approval of their courts, to carry weapons under regulations to be adopted by the Director of the Administrative Office of the U.S. Courts. According to the policy adopted by the Conference, such legislation ''would (a) correct the situation in which the security of probation and pretrial services officers is left to the vagaries of state law; (b) remove the uncertainty of the authority of officers who must cross state lines in the course of their duties; and (c) clarify the removability from state court of a civil action arising out of the use of a firearm by an officer under 28 U.S.C. §1442.'' See Report of the Judicial Conference of the United States, March 1991, pp. 17.
The legislation was introduced without success in both the 102nd and 103rd Congresses. Finally, the same legislation was successfully passed in the 104th Congress and became Public Law No. 104–317, 110 Stat. 3847 (October 19, 1996). This law amended 18 U.S.C. §3603(9) and 18 U.S.C. §3154(13), which enumerate the duties of probation officers and pretrial services officers, respectively, to include the following addition:
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if approved by the district court, be authorized to carry firearms under such rules and regulations as the Director of the Administrative Office of the United States may prescribe.
Under the leadership of the Judicial Conference, the federal probation and pretrial services firearms program has come to stress rigorous training and certification requirements, objective justification for the need to carry firearms, and public safety. Sometimes the decisions of a particular court or chief probation or pretrial officer may not be popular with all officers, who may have a different idea about when and where it is appropriate for them to carry firearms. Indeed, in one court I know of, the chief judge instructed the officers in his district that they are not authorized to carry firearms without the specific permission of a supervisor each time the officer requests approval to carry. More commonly, however, courts limit the carrying of firearms to on-duty situations, not allowing officers to carry them off-duty. Frankly, a decision that disallows off-duty officers from carrying firearms does not appear to me to be unreasonable. It does not appear to put these officers at untoward risk. Again, as I discussed earlier, they are not law enforcement or police officers who may properly be armed when off-duty for the sake of public safety.
JUDICIAL CONFERENCE OPPOSITION TO H.R. 4423
H.R. 4423 would amend 18 U.S.C. §3603 and 3154 with respect to firearms. As noted above, under current law §3603(9) and 3154(13) authorize probation and pretrial services officers, respectively, to carry firearms, ''if approved by the district court.'' The proposed amendment would strike those words from both statutes. Moreover, both §3603(9) and 3154(13) provide further that probation and pretrial services officers who receive authority from their courts must carry their firearms ''under such rules and regulations as the Director of the Administrative Office of the United States Courts may prescribe.'' H.R. 4423 would strike this obligation by deleting those words from both statutes, as well.
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The effect of this, if enacted into law, would be to eliminate the authority of the courts to supervise and direct their own employees who are probation or pretrial services officers regarding the use of their firearms. H.R. 4423 would prohibit the employer and supervisor of these employees to direct, in any manner, the use of firearms in connection with their official duties. This will result in officers possessing carte blanche authority to carry a firearm whenever, wherever, and in whatever manner they see fit. To my knowledge, no other federal employee in America possesses such unbridled firearms authority. Needless to say, insulating a government employee from supervision as to an important and sensitive facet of his or her official duties would likely be an unprecedented act of Congress.
In short, if it were passed H.R. 4423 would not only implement an extraordinarily flawed policy, it would also constitute an extreme and unwarranted interference in the day-to-day operations of the federal judiciary and its probation and pretrial services component. For these reasons, the Judicial Conference strenuously objects to the passage of this legislation.
It is critical for both the court and the chief probation or chief pretrial services officer to have plenary control over whether and under what circumstances their employees may carry firearms in the course of their official duties. At the very least, this enables the court to determine under what conditions it is appropriate for probation and pretrial services officers to carry firearms, minimize the district's, as well as the United States', exposure to liability, ensure continuity and program standards, and ensure effective and necessary training.
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For example, under the current system, the chief of the district is authorized to take action and revoke an officer's ability to carry a firearm if he violates any provision of the national or district policy. I am aware of at least one instance in which a chief asked an officer to surrender a firearm when she became aware that the officer was depressed over his pending divorce. H.R. 4423 would remove the chief's authority to regulate and respond to an officer's behavior or circumstances as it relates to firearms. In short, the district could be held civilly liable for an officer's actions with a firearm, yet would have no authority to regulate such actions or respond in a timely way to changed circumstances.
Compounding the court's loss of authority over firearms, H.R. 4423's specific elimination of the Director's rules and regulations would gut even the most basic parameters of the judiciary's firearms program. For example, under current regulations, an officer may use lethal force only in the case of self defense or the defense of a fellow officer. Absent such control, an officer may engage in a more proactive use of his firearm, resulting in possible harm to the officer, innocent bystanders, and the defendant, as well as civil litigation against the officer and the court.
Officers would no longer have the benefit, guidance and protection of a national firearms as well as a district firearms policy, and may not even have the support of the court that appointed and employs them. Officers would no longer be required to secure their weapon at their residence with a locking device. Officers would no longer be required to submit an inventory of each weapon they carry in the course of official business. Officers would not even be required, as under current policy, to file a report with the chief probation or pretrial services officer in the event they discharge their weapon in the line of duty.
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Under current national policy, the Director has established criteria for the duty weapon, the duty ammunition and acceptable holsters. This is a common practice among law enforcement and minimizes liability exposure. Absent such criteria, the officer may carry any make, model, and caliber of weapon, as well as ammunition. This could result in officer, subject and innocent third party injury. Finally, and of great concern, under H.R. 4423, chief probation and pretrial services officers would lose their current capacity to inhibit an officer's ability to carry a firearm for personal, emotional, mental, physiological and performance-related reasons, as was the case in my previous example.
The loss of any one of these regulations or policies would be injurious to a coherent, rational firearms program. The loss of all of them would be nothing less than a disaster waiting to happen.
However, even if all these specific problems were resolved, one fact would still remain: Any legislation that removes from the district courts this level of control over their own officers and employees would constitute an unparalleled interference in the authority of the courts to carry out their duties and responsibilities as provided under Article III. This bill intrudes upon a relationship that has well served both the judiciary and the American public for many years. And, as you can see from my testimony here today, it is totally without justification. On behalf of the Judicial Conference, I strongly urge you to oppose this unwise and improvident legislation.
Once again, I thank you for the opportunity to appear before you today. I am prepared to respond to any questions you might have about this issue.
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Mr. MCCOLLUM. Thank you, Judge Sullivan, for being here today.
Ms. De Santis, you are recognized.
STATEMENT OF JUDITH M. DE SANTIS, EXECUTIVE VICE PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Ms. DE SANTIS. Good morning.
Mr. Chairman, distinguished members of the subcommittee, ladies and gentlemen, my name is Judy De Santis. I am the Executive Vice President of the Federal Law Enforcement Officers Association. FLEOA is a voluntary, non-partisan, professional association representing exclusively the interests of more than 18,000 members of Federal law enforcement officers from more than 51 agencies, including probation and pretrial services officers. FLEOA is honored to be able to give this oral summary of our support of H.R. 4423, which bears directly on the safety and security of more than 4,000 Federal probation and pretrial services officers.
The personal safety of all probation officers must be given top priority. FLEOA believes that all chief district court judges are well intentioned when it comes to the safety of probation and pretrial services officers. However, a few well-intentioned judges may not be fully aware of the dangers faced by probation and pretrial officers on the streets and in the communities where they supervise offenders and defendants.
Unfortunately, the safety and security of hundreds of officers has been compromised in the 10 districts where they are not permitted to carry firearms. These officers investigate and supervise the same, often dangerous, felony defendants and convicted offenders that officers in the other 84 districts investigate and supervise. FLEOA emphasizes that probation and pretrial officers must maintain long-term, frequent contact with the very same defendants and offenders that are brought to justice by the agents and investigators of the FBI, DEA, U.S. Marshals Service, and any other Federal law enforcement agencies you can name. FLEOA is certain that you do not believe that felony offenders with violent criminal histories, drug abuse problems, or mental disorders are less dangerous in Los Angeles or Boston than they would be in Lincoln, Nebraska or Eugene, Oregon.
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Pretrial services officers maintain community contact with these often-dangerous criminal defendants until they are sentenced in Federal court. They make unannounced home visits, almost always alone and often at night. Probation officers are indeed unique from other law enforcement officers. They have the added complexity of balancing rehabilitative and counseling efforts along with statutorily mandated enforcement duties.
Do not Federal probation and pretrial officers deserve a full range of safety options as do other Federal officers? FLEOA says yes. In 1986, a mentally disturbed offender gunned down United States Probation Officer Thomas E. Gahl while Officer Gahl was attempting a routine home visit. Thomas Gahl's district, Southern Indiana, did not permit carrying a firearm. Unarmed, Officer Gahl had no chance of survival. An investigative report into Thomas Gahl's murder acknowledges that ''a firearm might have assisted Tom Gahl'' in that incident. Within the same paragraph, the report recommended that a probation officer's ability to carry firearms still be left to the discretion of the district court.
In 1996, the Honorable Barefoot Sanders testified before the House Judiciary Committee regarding Federal probation and pretrial officers. The dominant theme in that testimony was preventing probation officers' safety from being compromised. Congress agreed and corrected that problem with the Federal Courts Improvement Act of 1995.
However, the personal protection of these officers continues to be compromised. This is self-evident when entire districts of officers are denied the ability to protect themselves and carry a firearm. FLEOA believes this was not the intent of either Congress, the Judicial Conference of the U.S. Courts, or the Administrative Office of the U.S. Courts.
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The General Accounting Office study entitled ''Federal Offenders: Trends in Community Supervision'' stated that data provided by the Administrative Office of the U.S. Courts and the Federal Bureau of Prisons suggests that at the end of fiscal year 1996, almost as many convicted offenders were serving terms of community supervision as there were inmates in the Federal prison system. The report also stated that inmates projected to be released from the Bureau of Prisons in fiscal years 1997 through 2001 may include a greater number of high-risk offenders than was previously released.
These offenders are not projected for release sometime in the near future. They are being released right now and they are being supervised by Federal probation officers across the Nation.
In closing, FLEOA is confident that this subcommittee acknowledges that it only makes common sense for Federal probation and pretrial officers, as part of the Federal law enforcement community, to be secure and protected as much as reasonably possible while performing their duties. But just as importantly, their families deserve to know that they have been afforded every commonly accepted means of self-defense in the law enforcement community for their personal safety. This must be done to ensure that every probation officer and pretrial officer will return home to their families at the end of the day.
Thank you again for allowing FLEOA to come before you and speak on this very important issue.
Subject to your questions, this concludes our testimony.
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[The prepared statement of Ms. De Santis follows:]
PREPARED STATEMENT OF JUDITH M. DE SANTIS, EXECUTIVE VICE PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Mr. Chairman, distinguished members of the Subcommittee, ladies and gentlemen. My name is Judith De Santis. I am the Executive Vice President of the Federal Law Enforcement Officers Association [FLEOA]. FLEOA is a voluntary, non-partisan, professional association representing exclusively the interests of more than 18,000 members of federal law enforcement officers and special agents from more than 51 agencies of the Federal Government, including Probation and Pre-Trial Services Officers. FLEOA is honored to be able to give this oral summary of our submitted written testimony in support of H.R. 4423, which bears directly on the safety and security of more than 4,000 federal probation and pre-trial services officers.
I am also a career special agent with the Drug Enforcement Administration and serve as a Lieutenant Colonel in the United States Army Reserve.
Distinguished members of this Subcommittee, FLEOA respectfully asserts that the personal safety of all probation officers must be given top priority. FLEOA believes that all chief district court judges are well intentioned when it comes to the safety of probation and pre-trial services officers. However, FLEOA also believes that a few well-intentioned judges may not be fully aware of the dangers faced by probation and pre-trial officers on the streets and in the communities where they supervise offenders and defendants.
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Unfortunately, the safety and security of hundreds of officers has been compromised in ten districts where they are not permitted to carry firearms, as is authorized by law in 18 USC 3605 (9). Districts that currently prohibit their officers from carrying firearms are: Eastern Virginia, Massachusetts, Eastern Tennessee Probation (except Chattanooga), Eastern and Western Wisconsin, Northern Ohio, Eastern Oklahoma, the U.S. Virgin Islands, and Southern and Central California.
These officers investigate and supervise the same, often dangerous, felony defendants and convicted offenders that officers in the other 84 districts investigate and supervise. FLEOA emphasizes to this Subcommittee that probation and pre-trial officers must maintain long-term, frequent contact with the very same defendants and offenders that are brought to justice by the special agents and criminal investigators of the FBI, DEA, U.S. Marshals Service and any other federal law enforcement agencies you can name. FLEOA is certain that the members of this Subcommittee do not believe that felony offenders with violent criminal histories, drug abuse problems or mental disorders are less dangerous in Los Angeles, CA and Boston, MA than they would be in Lincoln, NE or Eugene, OR.
Pre-Trial Services Officers maintain community contact with these often-dangerous criminal defendants until they are sentenced in Federal Court. Once probationers have been sentenced and, in the case of post-imprisonment of supervised releasees, probation officers maintain even longer and more frequent contact with these offenders. They make unannounced home visits, almost always alone and often at night. Probation Officers are indeed unique from other law enforcement officers. They have the added complexity of balancing rehabilitative and counseling efforts along with their statutorily mandated enforcement duties.
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Mr. Chairman and Subcommittee members, the obvious question must be asked. Do not Federal Probation and Pre-Trial Officers deserve a full range of safety options as do other federal officers? FLEOA believes all Federal law enforcement officers are entitled to every commonly available means of self-defense, especially including the carriage of firearms. We, as your constituents, believe you share the view of FLEOA on this subject. In 1986, a tragedy occurred that is the driving force behind why FLEOA is before you today. A mentally disturbed offender gunned down United States Probation Officer Thomas E. Gahl while Officer Gahl was attempting a routine home visit. Thomas Gahl's district, Southern Indiana, did not permit probation officers to carry firearms for their personal protection at that time. Unarmed, U.S. Probation Officer Gahl had no chance of survival against his armed assailant. An investigative report compiled by the Administrative Office of the U.S. Courts into Thomas Gahl's murder acknowledges that ''a firearm might have assisted Tom Gahl'' in that incident. Interestingly, within the same paragraph, the report recommended that a probation officer's ability to carry firearms still be left to the discretion of the district court. A few blocks from here, Tom Gahl's name appears on the wall of the National Law Enforcement Officers Memorial on Panel 39, Line E–4. The story of this senseless murder has been chronicled in a book entitled A Violent Act, by Alec Wilkinson (1994). His wife, Nancy, and two sons, Nicholas and Christopher survived Thomas Gahl.
In 1996, the Honorable Barefoot Sanders testified before the House Judiciary Committee regarding federal probation and pre-trial officers. Although the initiative before Congress at that time was to obtain legislation which exempted federal probation and pre-trial officers from state laws that prohibited them from carrying firearms in their jurisdictions and across state lines, a dominant theme in that testimony was preventing probation officers' safety from being compromised. Congress agreed with this clearly common sense position and corrected this problem by including appropriate legislation in the Federal Courts Improvement Act of 1995.
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However, the personal protection of these officers continues to be compromised. This is self-evident when entire districts of officers are denied the ability to protect themselves by being trained and qualified to carry firearms. As I have indicated earlier, under current law a district court judge can at any time remove or severely restrict the authority of an entire district of probation and pre-trial officers in the carriage of firearms. FLEOA believes this was not the intent of either Congress, the Judicial Conference of the U.S. Courts, or the Administrative Office of the U.S. Courts.
In 1997, The General Accounting Office published a study entitled Federal Offenders: Trends in Community Supervision. Among other findings, report GGD–97–110, stated that data provided by the Administrative Office of the U.S. Courts (AOUSC) and the Federal Bureau of Prisons suggests that at the end of Fiscal Year 1996, almost as many convicted offenders were serving terms of community supervision as there were inmates in the federal prison system. The AOUSC provided documentation showing that offenders serving post-prison release supervision pose more problems for probation officers and present a greater risk to the community than do those on probation.
Even more significant, the report stated that inmates projected to be released from the Bureau of Prisons in Fiscal Years 1997 through 2001 may include a greater number of high-risk offenders than was released from the federal prison population from 1990 through 1996. Mr. Chairman and Subcommittee members, these offenders are not projected for release sometime in the future. They are being released now and are being supervised now by Federal Probation Officers across the nation.
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In closing, FLEOA is confident that this Subcommittee acknowledges that it only makes common sense for Federal Probation and Pre-Trial Officers, as part of the Federal law enforcement community, to be as secure and protected as much as reasonably possible while performing their duties. But just as importantly, their families deserve to know that they have been afforded every commonly accepted means of self-defense in the law enforcement community for their personal safety. This must be done to ensure that every probation officer and pre-trial services officer will return home to their families at the end of the day.
Thank you again for allowing FLEOA to come before you today on this very important issue.
Subject to your questions, this concludes FLEOA's testimony.
Mr. MCCOLLUM. Thank you very much, Ms. De Santis.
Mr. Ryan, you are recognized.
STATEMENT OF ROBERT RYAN, CHIEF PROBATION OFFICER, DISTRICT OF MASSACHUSETTS
Mr. RYAN. Mr. Chairman and members of the subcommittee, my name is Robert Ryan. As has been previously stated, I am the chief probation officer in the District of Massachusetts. I have been a Federal probation officer for 20 years; I have been the chief probation officer for the past 6 months, since January of this year. Prior to that, I was a State probation officer in Massachusetts for 9 years. And before I began that job, I was in the United States Army and served in Vietnam.
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I think the issue here today is the importance of individual districts being able to develop their own safety programs within their district. Some districts have a safety program that have firearms components. Some districts—like the District of Massachusetts—have a safety program that does not have a firearm component.
One isn't right and the other isn't wrong. It is a matter of a decision on the local level in the individual district court as to where your time and energy and resources are going to be spent. It is our view in the District of Massachusetts that our time, our energy, and our resources are to be spent in areas other than firearms in terms of officer safety.
As the chief probation officer in Massachusetts, I don't feel that I take a back seat to any chief probation officer around the country in terms of officer safety. I think it is extremely important. I have devoted—in my previous capacity as the deputy chief probation officer in Massachusetts—energy in officer safety programs and I have devoted—in the first 6 months of my tenure as chief—energy as well.
I would like to point out that in my district—again, who does not have a firearms policy—the first committee that I strengthened and called was the Safety Committee. It has met more in my district in the last 6 months than any other committee that exists in Massachusetts. So I don't think it is a question of those districts who have firearm policies and allow people to carry firearms are those districts that take safety seriously and those districts who do not, do not take it seriously.
I feel that I have, as the chief probation officer in Massachusetts, a strong obligation to look out for the safety of my officers. I have that obligation to the officers and I have an obligation to their families.
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We in Massachusetts have put our resources in other areas than firearms. We conduct regular defensive tactics programs. We provide to our officers training which deals with defusing volatile situations that may present themselves in the course of their work. We have cell phones for officers to assist in their safety. We have Capstan that is available to officers. We have training in that area. We have physical fitness programs which allow officers to maintain their physical fitness. And there are a wide range of other training programs that we provide officers that go to the heart of the issue of providing officer safety.
It has been alluded to here that the probation officer has a much different role than the traditional law enforcement officer, and that is the case. We are not the FBI. We are not DEA. We are part of the Judicial Branch and we have an obligation statutorily to use all methods reasonable to try to bring about an improvement in the conduct and condition of those offenders that are under our charge. We are—both districts that have firearms policies and those that do not—to avoid confrontational situations.
I tell my officers that if they pull up to a street corner and they are going to make a home visit and things don't look right, it looks like a dangerous situation, to leave the area. That is not just me in Massachusetts. I would say those are the views of virtually all the chief probation officers across the country.
We do not have to look at a situation that is dangerous and go into that situation regardless. That is not our mandate. We could ask the offenders—if we think it is a dangerous situation—to come into the office where there is a greater degree of protection.
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So to put Federal probation officers in the same boat as other law enforcement officers I think is a bit—I don't think that is correct and I think you can go in a wrong direction when you do that.
In our district, candidates who come in to apply for Federal probation officer positions are informed right up front at the time of the interview that we do not carry firearms in the District of Massachusetts. They are aware of that.
They are aware also of the full scope of our jobs, that we do make field visits. We are very aggressive in the community. We don't stay in our office because we don't carry firearms. We are out in the community. But we authorize probation officers to team up when there is a view that there is a dangerous situation out there. And in addition to that, for those officers who would come to me, as the chief probation officer, and say, ''I am in supervision and I don't like the idea of going out there; I am fearful for my life; you haven't provided me with a firearm''—we would offer them the opportunity to work in the presentence unit, which is another function of the probation officer where there is much less exposure to the community and a greater degree of safety.
So it seems to me that for districts who have policies to carry firearms, and for those districts like us who do not, this bill is a bad bill. Take for example those districts who do have a policy. It seems to me that it strips away all the regulations that are currently in effect to regulate the carrying of those firearms. The judge has clearly stated that.
I am not just here talking about those districts that don't have firearms policy. I am talking about those that do. It seems to be reckless to allow each individual probation officer to decide under what circumstances they are going to carry firearms, regardless of what the chief judge or the chief probation officer does.
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In many other areas, chief probation officers and chief judges are required to set policies and procedures that govern the operation of their office. To remove this authority to establish policies and procedures in this critical area I think is a mistake.
Thank you for this opportunity to speak to you. I am available for whatever questions you might have.
Mr. MCCOLLUM. Thank you, Mr. Ryan.
I will recognize myself for 5 minutes.
With all due respect, Judge Sullivan, whether we should do it or not is another story, but I do believe—looking at the statutes—that Congress has the power over the probation officers and the pretrial officers. We could set the rules and we have traditionally given you this kind of authority, but I don't think it is a constitutional issue.
Mr. SULLIVAN. All we are asking you to do is to allow us to continue to exercise that authority for our own employees.
Mr. MCCOLLUM. I wasn't sure from your testimony if you were expressing it in a constitutional way, but I don't think it is.
Mr. Ryan, I have one question that your testimony gave rise to.
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If you were to allow—and you don't, I know—the probation officers and pretrial services officers in your district to carry firearms if they voluntarily chose to do so, do you have any idea what percentage would choose to do so?
Mr. RYAN. I really don't.
To be frank with you, I would have to say that if we polled the probation officers in my district, the majority would probably say they would like to have the option of carrying firearms. I think from that number you would drop significantly to the actual probation officers who would carry firearms. I don't know what the national percentages are, but I remember—and I may be wrong—that actual officers who choose to carry firearms—I don't know if it is half, but it is relatively small in terms of the total number of officers in those districts who have that authority.
Mr. MCCOLLUM. Why would they want the option?
Mr. RYAN. To carry firearms?
Mr. MCCOLLUM. Yes.
Mr. RYAN. I think there are a number of probation officers who feel that their safety is at issue out on the street and that they feel protected, to a greater degree, with firearms. And that I think is what motivates the districts who have established these firearms policies.
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I am not here to say they are wrong. But it seems to me that they—who have decided to go that route—and us—who are in the minority, who have decided to go in a different direction but still concentrate on the importance of officer safety—should be allowed to make those decisions.
Mr. MCCOLLUM. Do the judges in the Massachusetts District consult with you and with others in the probation officer world about this issue? Is there a process for actually having dialogue?
Mr. RYAN. Yes. About a year ago—a little over a year ago—the issue of firearms in our district came up again. We had a self-assessment and officers in our district talked about wanting to have that option. So we revisited this issue and had a number of meetings with feedback from officers and our management team. We made a recommendation to the court, and it was a unanimous recommendation within our management team that we not change the current policy which prohibits it. The court adopted that recommendation.
Mr. MCCOLLUM. Ms. De Santis, in the world of law enforcement officers other than probation officers and pretrial, there is a major movement to which this Congress is close to embracing to allow retired and current officers—regardless of the laws of individual States—to carry firearms across State lines—State police officers, sheriff's deputies, and so forth—principally because of their concern about safety if somebody who they have been following, investigating, involved with would turn on them and be actually trying to seek retribution against the officer.
That is the principal concern, the safety of that officer, not so he can go do his duty in some way or get involved in a police action.
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Is there that kind of sense of concern among probation and pretrial officers? Do they have situations that are comparable to this where when through their jobs—either while they are still on active service or when they are retired—that they are threatened or feel threatened by the potential of somebody they have come in contact with wanting to harm them because of something perceive or did do with respect to their case?
Ms. DE SANTIS. Yes, sir, I would have to say that that is a true statement. Just because an officer retires doesn't mean that there is no potential for running into a client you have dealt with in the past in the mall or anyplace else. What applies to any other law enforcement would be true in that case as well.
The issue is that we just want to ensure that all the probation officers have the opportunity to have this ability to have this arsenal completely full. Officer safety is tantamount. It should be noted for the record that the probation and pretrial officers who do carry guns have not had any incidents of using them since they have been doing it. It is just one more implement to allow them to protect themselves should the possibility occur.
One of the districts that does not allow the carrying of firearms is South Central Los Angeles. Why? They are going in and doing home visits. The potential is there to restrict a felonious offender's freedom. The possibility exists that that could occur. Just giving them one more opportunity to protect themselves in this volatile environment is to their benefit. It is to all officers' benefit.
We have already paid the ultimate price. We have lost a probation officer because he was unarmed. The investigative report shows that it might have helped him survive that incident. We will never know. That man is dead and is survived by a wife and two young children.
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We just want to make sure that we give them every possibility in the world to protect themselves and be able to go home at night back to their families.
Mr. MCCOLLUM. I have used up my 5 minutes.
Mr. Scott?
Ms. DE SANTIS. I am sorry, sir.
Mr. MCCOLLUM. No, no. I am just commenting. I have used them up. I asked you the question. You properly answered it.
Mr. Scott?
Mr. SCOTT. Thank you.
Ms. De Santis, this bill doesn't cover retirees, does it?
Ms. DE SANTIS. No, sir. No.
Mr. SCOTT. Do you have any experience with State probation officers, whether they carry firearms?
Ms. DE SANTIS. Sir, I am only dealing with Federal probation and pretrial. I can get some information, if that is what you need.
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Mr. SCOTT. Are there law enforcement officers, like prison corrections officers, that cannot carry firearms?
Ms. DE SANTIS. Sir, I do not know the answer to that question. I would have to get back to you on that.
Mr. SCOTT. Judge Sullivan, I understood your testimony to indicate that this would cover probation and pretrial officials whose duties are different.
Mr. SULLIVAN. That is correct.
Mr. SCOTT. As I understand present law, you give individual consideration. Even in those districts where it is allowed, the decision is made on an individualized basis.
Mr. SULLIVAN. That is correct.
Mr. SCOTT. You have developed regulations on how this should be carried out?
Mr. SULLIVAN. Yes.
Mr. SCOTT. Do they indicate that the decision has to show that for that particular officer to carry a firearm is reasonably necessary and it can only be done in his official duties? You have a statement that it can only be used in self-defense, or to protect a fellow officer from death or grievous harm. You indicated a requirement that it be either on his person or locked, that he should keep an inventory and file a report if he discharges a firearm in the performance of his duties.
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Mr. SULLIVAN. Yes, there are policies and procedures. Yes.
Mr. SCOTT. We would like to introduce a copy of these regulations into the record.
Mr. MCCOLLUM. Without objection, the referenced document will appear in the record.
[The information referred to follows:]
REGULATIONS OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE CONCERNING CARRYING AND USING FIREARMS BY UNITED STATES PROBATION AND PRETRIAL SERVICES OFFICERS
Pursuant to 18 U.S.C. §3603(9) and 3154(13), probation and pretrial services officers are authorized to carry and use firearms pursuant to the following regulations only upon the written approval of the district court in the district in which they serve.
1. A probation or pretrial services officer may carry a firearm under the following conditions:
a. The probation or pretrial services officer has presented to the chief probation officer or the chief pretrial services officer, respectively, sufficient reasons in writing why the carrying of a firearm is reasonably necessary (A) in the performance of the officer's duties generally, or (B) in the performance of the officer's duties in connection with a specific assignment. Sufficient reasons for carrying a firearm are that an assignment or an officer's duties generally subject the officer to serious risk of physical harm and that other methods of protection are not appropriate or available-under the circumstances.
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b. The approval of the request has been granted in writing by the chief probation officer or chief pretrial services officer.
c. The probation or pretrial services officer has completed the National Firearms Training Program for U.S. Probation and Pretrial Services Officers and has been qualified thereunder to carry a firearm.
2. Except for transportation to and from a location in which an officer will perform official duties, a probation or pretrial services officer who has been authorized to carry a firearm may only carry or use a firearm in the course of the performance of the officer's official duties.
3. A probation or pretrial services officer who has been authorized to carry a firearm shall use the same only in the exercise of his or her rights of self defense or to protect a fellow officer from death or grievous bodily harm in accordance with the law.
4. The Director, in consultation with the Committee on Criminal Law of the Judicial Conference, shall periodically determine which firearms and ammunition are authorized for use by probation and pretrial services officers. No other firearms or ammunition are authorized to be carried or used.
5. A probation or pretrial services officer who has been authorized to carry a firearm is responsible for the care and maintenance of the firearm, whether the firearm is the property of the officer or the property of the United States. When practical, repairs on weapons should be made only by factory-authorized, armorers or gunsmiths.
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6. A probation or pretrial services officer who has been authorized to carry a firearm shall, while on duty, carry the firearm on the officer's person or shall store it in a locked gun box or cabinet. Any such officer shall keep the firearm safely secured utilizing a safety lock device any time the firearm is at the officer's residence.
7. The chief probation officer or chief pretrial services officer in each district in which firearms are authorized to be carried shall keep an inventory which shall consist of title and name of officer, date the weapon was issued and serial number; whether the weapon is surplus, purchased by the officer or the district; and date safety lock was issued. The inventory and any changes thereto shall be forwarded to the Administrative Office. Any firearm that is the property of the United States must be returned to the chief by any officer who terminates his or her service in the district. However, if the officer issued the weapon transfers to another district where firearms are authorized, the chief in the issuing district will decide if the officer can transfer the weapon to the new district.
8. A probation or pretrial services officer who discharges a firearm while in the performance of the officer's duties - except in the course of training or qualification—shall file a report in writing with the chief probation officer or chief pretrial services officer as appropriate within twenty-four (24) hours. The report shall describe in detail the factual circumstances of, and reason for, the discharge of the firearm. The chief probation officer or chief pretrial services officer shall forthwith send copies of any reports required to the chief judge of the district and to the Director of the Administrative Office.
Mr. SCOTT. How does this legislation interact with a probation officer's individual right to get a concealed weapon permit outside of his duties, if he has a concealed weapons permit in the State and he used that permit to carry the weapon while he is on duty?
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Mr. SULLIVAN. I don't want to guess, but I will guess. My answer is no, he probably would not be able to carry that concealed weapon. But I don't want to speculate about that because the laws are different in the various jurisdictions. I can provide the committee with additional information in that regard, if you so desire.
Mr. SCOTT. Mr. Ryan, I think I got from your testimony that you only have a certain number of hours that you can train people, and if you use training out on the range on firearms that is training they can't get in some other area. Could you state again what kinds of training and other safety methodology take time for training that might not take place if in those precious hours they are out on the range?
Mr. RYAN. You are right. I think it is commonly understood that to operate an effective firearms policy in a district, it takes a tremendous amount of time and effort.
We have decided to put our time and effort in other areas in terms of officer safety. Our initial orientation of new officers has a safety component. We have an annual off-site, 3-day defensive tactics program that is offered. In fact, other districts besides Massachusetts who do have firearms policies come to Massachusetts to participate in that defensive tactics program.
We have the issuance of Capstan and we do training in order to teach people how to properly deliver that. We have stepped up our safety in terms of some of the satellite offices that are outside of Boston where the security wasn't very good. And we have put in magnetometers; we have put in bullet-proof walls where necessary. We have training in terms of verbal skills to diffuse volatile situations or potentially violent situations, to teach officers how to recognize situations that could potentially turn ugly and result in violence. It is our view that to devote our time and energy in those areas returned bigger dividends.
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Again, I am not saying that we are right and they are wrong. But I am saying that in the 20 years I have been a Federal probation officer in the District of Massachusetts, we have not had one serious assault on an officer—never mind a shooting—but not one serious assault. Knock on wood, that could change tomorrow because we are dealing with serious offenders.
I agree with the testimony about the jails having offenders that are violent with mental health histories. We are very much aware of the potential for violence. I am just not convinced that arming our officers contributes to their safety. In fact, an argument could be made that an armed probation officer might decide—in that scenario I gave you before of pulling up to a street corner that looks dangerous—my better sense would say, ''I better not go in there,'' but maybe on a subconscious level they may say, ''Well, I have a firearm here that might be the equalizer.''
We are taught not to do that—both firearms districts and non-firearms districts—but it seems to me that there is that potential for that kind of reaction.
In any event, we feel that our time and energy should go into other areas in our effort to keep our officers safe so they can go home to their families.
Mr. SULLIVAN. Mr. McCollum, if it is appropriate, I would like to correct the record with respect to a statement Ms. De Santis made—if that is appropriate at this time.
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Mr. MCCOLLUM. If you would like.
Mr. SULLIVAN. With all due respect to Ms. De Santis, she quoted from an investigative report prepared by the Administrative Office of the U.S. Courts. Her quote was that a firearm might have assisted Tom Gaul. Indeed, in paragraph eight of the report—and I would be happy to submit a copy for the record—the Administrative Office stated that although a firearm might have helped Tom Gaul in this particular incident, there are many circumstances where the presence of a firearm could aggravate the matter.
So I think it is appropriate that the full——
Mr. MCCOLLUM. I will be very glad to receive the full report into the record. Without objection, it is so ordered.
[The information referred to follows:]
| Administrative Office of |
| the United States Courts, |
| Washington, DC, April 23, 1987. |
MEMORANDUM TO ALL CHIEF JUDGES, UNITED STATES DISTRICT COURTS
SUBJECT: Death of U.S. Probation Officer Thomas E. Gahl
Upon the recommendation of the Judicial Conference Committee on the Administration of the Probation System, I am attaching for your information a report of a review the Division of Probation made of the circumstances surrounding the murder of U.S. Probation Officer Thomas E. Gahl of Indianapolis, Indiana. Tom Gahl was the first U.S. probation officer killed by a client under supervision. A copy of this report has also been provided to all chief probation and pretrial services officers.
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| L. Ralph Mecham, Director. |
Attachment
This report is a review by the Probation Division into the circumstances surrounding the September 22, 1986, death of U.S. Probation Officer Thomas E. Gahl. The information in this report was compiled by Probation Division staff who conducted interviews and reviewed records in Indianapolis, Indiana, and Springfield, Missouri.
INTRODUCTION
Thomas E. Gahl was killed by probationer Mike Wayne Jackson at Jackson's Indianapolis residence. Tom Gahl was 38 years old, and had been a U.S. Probation Officer since 1975.
Mike Wayne Jackson was on probation for a firearms offense. He was 40 years old, and had a history of mental illness, alcohol and drug abuse, and criminal behavior. After killing Gahl Jackson killed two more people, wounded a police officer, and kidnapped several people. Ten days later, when apprehension was imminent, he committed suicide.
This report will be in two sections. The first section will be a history of the Jackson case from the time of his arrest on Federal charges to the time of his death. The second section provides a summary and recommendations.
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CASE HISTORY
On March 1, 1985, Indianapolis Police arrested Jackson for shoplifting. A homemade shotgun and incendiary devices were found in his truck. Possession of these weapons led to a four count Federal indictment. During pretrial proceedings, the Court ordered him detained because of dangerousness and the likelihood of flight. Upon the motion of defense counsel, the Court committed Jackson for a mental competency examination pursuant to 18 U.S.C. 4241. He was confined in the Medical Center for Federal Prisoners at Springfield, and subsequently was found to be competent to stand trial. Psychiatric diagnoses were paranoid schizophrenia in remission and antisocial personality disorder. He was returned to Indianapolis for trial.
While awaiting trial in Federal custody at a county jail, Jackson's behavior was disruptive. He also ''fired'' his appointed attorney. The Court then appointed two other attorneys to represent him.
Count 1 charged Jackson with Possession of an Unregistered Firearm (26 U.S.C. 5861 (d) and 5871) and Count 2 with Possession of a Firearm without a Serial Number (26 U.S.C. 5861 (i) and 5871). Counts 1 and 2 involved galvanized pipe constructed to fire 12 gauge shotgun shells. Counts 3 and 4 alleged possession of four ''molotov cocktails'' and of a firearm by a convicted felon. On September 20, 1985, Jackson pled guilty to Counts 1 and 2. The Court committed Jackson to the custody of the Attorney General for one year on Count 1, suspended imposition of sentence on Count 2, and placed him on three years probation. A presentence report was not ordered.
The psychiatric evaluation prepared during the competency examination provided background information about Jackson. According to that report, Jackson committed the offense because he wanted to protect himself. He thought someone was out to kill him. Jackson said he had been arrested over 30 times, and had spent 17 years in prison. He indicated he had been arrested on several occasions for assault and battery with intent to kill. Jackson reported he first got into trouble at age 13 or 14, when he robbed a taxi driver. He said he had married the same woman twice, had two children, and was divorced twice. His work history consisted of unskilled labor. He reported he drank alcohol as often as he could get it, and used drugs (''mostly diet pills and pot'') since age 18. Jackson reported he had been diagnosed as schizophrenic and psychotic, and had been medicated and hospitalized on several occasions. The Federal Bureau of Investigation fingerprint record revealed Jackson had served three felony prison terms, one of which was for rape.
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After sentencing, Jackson was returned to the Medical Center. His anticipated release date was February 7, 1986. While in custody, Jackson's mental condition deteriorated. As early as October 30, 1985, authorities at the Medical Center advised the Probation Office in Indianapolis, that they were considering hospitalization of Jackson in a secure facility for the mentally ill in Indiana.
While the Medical Center was exploring release options, Jackson was medicated, and his condition improved. On January 14, 1986, a psychiatric panel recommended Jackson be treated as an outpatient.
Title 18, Section 4246, as amended by the Comprehensive Crime Control Act of 1984, provides authority to the Director of the Medical Center at Springfield to certify to the local U.S. District Court that a person whose sentence is about to expire is suffering from a mental disease or defect, and release would create a substantial risk of bodily injury to another person or serious damage to property. Under this provision, the release of the individual is stayed pending a hearing. After a hearing, the Court can conditionally release the individual to a prescribed regimen of medical, psychiatric, or psychological care or treatment which has been certified as appropriate by the Director of the Medical Center. The person responsible for the treatment of a conditionally discharged individual is required to notify the Attorney General and the Court of any failure of the individual to follow the prescribed treatment. In the event the individual does not follow the prescribed treatment, the Court may have the individual arrested and returned for a hearing to determine if the individual should be remanded to a suitable facility.
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On April 12, 1986, Jackson was released under the provisions of 18 U.S.C. 4246. The Court in the Western District of Missouri ordered the discharge of Jackson with the condition he follow a treatment plan developed by the Medical Center and a community mental health center in Indianapolis. The treatment plan required Jackson to receive medication once a day from a mental health professional or a nurse.
During Jackson's confinement, the probation office in Indianapolis was kept informed of his medical condition and of the various release plans. Staff in the probation office attempted to make arrangements for Jackson to reside in a halfway house. These efforts were unsuccessful because of Jackson's history of violent behavior.
On the date of his release, Jackson was escorted by staff from the Medical Center at Springfield, to the community mental health center where he met with a psychiatric social worker. Arrangements were made for daily medication. Medical Center staff then escorted Jackson to the probation office.
Probation office staff made arrangements for Jackson to stay that evening at a local mission. Referrals were made for housing assistance, Social Security benefits, and job placement. Eventually, the community mental health center made arrangements for Jackson to stay at a Salvation Army facility, and for him to participate in a work program for the mentally ill. In June Jackson began receiving Social Security benefits.
The community mental health center contacted the court in the Western District of Missouri through the Medical Center, and obtained authority to modify the method of administering medication to Jackson. Staff at the community mental health center then saw Jackson every two weeks. Consideration was being given to reducing visits to once per month. Jackson's condition appeared stable.
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In September, the probation officer assigned to Jackson made arrangements through the chief probation officer to transfer supervision to probation officer Gahl. This was done because the assigned officer felt the case required more time than he could devote to it.
On Monday, September 15, the previously assigned officer, Gahl, and Jackson met jointly in the probation office. Gahl was familiar with the case since he had earlier contact with Jackson. The transfer was explained and conditions of probation were reviewed. Jackson related well to both probation officers, but was hostile toward his family and over the requirement he take medication. There were no signs of illegal drug use. Gahl also met with Jackson alone. He made an appointment for Jackson that afternoon at the community mental health center, since he had missed his appointment on September 10, 1986. Jackson went to the center and received his medication.
On Friday, September 19, Gahl went to the community health center, reviewed the Jackson file, and talked with a psychiatric social worker who was familiar with him. Staff recommended Jackson be tested for illegal drug use as family members had told them he was using drugs.
On Monday, September 22, at approximately 8:15 a.m., Gahl went to Jackson's residence to obtain a urine specimen. It is unknown if Jackson anticipated the visit. Jackson had been at this address since mid-August. The house was run-down, and had no electricity or running water. The front porch was surrounded by overgrown bushes. Both the yard and house were full of debris.
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Gahl was shot three times. There were no witnesses to the first shot. A neighbor heard what sounded like a knock on a door, and then a loud blast. The Indianapolis Police received a report at about 8:15 a.m. of a shooting. In the opinion of the Federal Bureau of Investigation, Gahl was shot in the left elbow from behind as he left the residence. Witnesses saw him down on his right knee, and then saw him get up and go toward his car with Jackson in pursuit. Gahl was seen backing down the sidewalk away from Jackson. One witness heard Gahl's plea for help from about 15 feet away. Jackson then shot Gahl in the right side of the head, and also fired a third shot at close range into the right side of his head. Jackson initially went back into his residence. A few moments later, he left the house with a shotgun and extra shells, got into his truck, and drove away.
A search of the residence by police revealed medication dating back to August which had been prescribed for Jackson by the community mental health center. No illegal drugs or paraphernalia were found. It was determined the shotgun had been purchased by Jackson at an Indianapolis pawn shop for $195 cash on September 11, 1986.
At approximately 8:33 a.m., Indianapolis Police received a report of a fatal shooting of the owner of a small neighborhood grocery market. Jackson then kidnapped a witness to the robbery and killing. He also robbed, terrorized, and kidnapped several other people before leaving Indiana. At approximately 6:48 p.m., Jackson shot and killed a motorist on Interstate 70 in Missouri. The individual had been driving a car which resembled an unmarked highway patrol car which it is believed caused Jackson to think the victim was a police officer. During the evening, Jackson continued to rob and kidnap. When two police officers attempted to arrest Jackson at approximately 9:15 p.m., he shot at them and wounded one of the officers.
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Jackson remained at large until October 2. He was located in a barn a few miles from where he had shot and wounded the police officer on September 22. As police arrived at the barn, Jackson committed suicide with his shotgun. The spent shells matched those found at the scene of the killing of Gahl. An autopsy report showed no evidence of illegal drug in Jackson's system although some drugs may have metabolized by the of time the autopsy.
SUMMARY AND CONCLUSIONS
Probation Officer Tom Gahl was killed on the morning of September 22, 1986, by probationer Mike Wayne Jackson while making a home visit. Gahl appeared to have been moving away from the house when he was shot by Jackson from the front porch. The attack apparently occurred upon Gahl's arrival with little, if any, conversation. Jackson was on 3 years probation for illegal possession of a weapon and had served a 1-year Federal sentence on a separate firearms violation. He had also previously served three major prison sentences, and had been diagnosed on several occasions as being paranoid schizophrenic and having an antisocial personality disorder.
The U.S. Medical Center at Springfield, Missouri, had held Jackson beyond his release date since he was considered mentally ill and dangerous. He was conditionally released only after an Indiana mental health agency agreed to see him regularly on an out-patient basis and to prescribe psychotropic drugs. Although he had missed an appointment with the clinic on September 10, 1986 (a violation of his conditional release), the clinic did not report to the institution as required by the terms of release. Instead the clinic reported the delinquency to the probation office. After a subsequent visit to the probation office, Jackson renewed contact with the clinic and was provided psychotropic drugs. Jackson was, however, apparently not taking his medication since the prescription bottles still containing medication were found by the police in his residence. According to staff at the clinic, they did not view Jackson as mentally ill, but as a person who had reverted to drug use. Clinic staff said they believed Jackson should simply be returned to prison if he violated the conditions of his probation.
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Tom Gahl was well informed of Jackson's background, and was working to insure his compliance with the conditions of probation. Neither his personal contact with Jackson nor the mental health personnel who treated him had apparently led Gahl to conclude Jackson represented a threat to him. Jackson's state of mind on the morning in question or what might have triggered his unprovoked attack is unknown.
The probation system has a number of high risk clients with histories of violence and mental problems similar to that of Jackson. There are, therefore, several operational procedures which should be reemphasized and issues which need be addressed that will enable the probation system to minimize the possibility of a similar tragedy in the future.
The reviewers recommend that:
1. the Probation Division provide a brief summary of this report to chief probation and pretrial services officers, and instructors in the Probation Staff Safety Course sponsored by the Federal Judicial Center.
2. the Probation Division provide information to the probation system concerning the authority of the Bureau of Prisons to conditionally release an inmate and revoke this release.
3. the Probation Division encourage all districts to request the safety training course from the Federal Judicial Center.
4. the Probation Division seek information for the field on special methods of supervision which officers may employ with offenders similar to Jackson. This information can be obtained from probation officer mental health specialists and other experienced officers.
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5. the Probation Division continue to seek adequate staff as determined by workload formulas to enable probation officers sufficient time for supervising difficult cases. Such cases require considerable planning as well as consultation with supervisory staff and other experts.
6. the Probation Division explore the need for probation officers to obtain regular psychiatric or psychological consultation on methods for supervising offenders with mental problems, and psychiatric or psychological, contract services for selected offenders.
7. the Probation Division encourage offices to place mentally ill and dangerous offenders into treatment with drug and alcohol contract agencies if the offenders also have histories of substance abuse.
8. the Probation Division not recommend a change in the Judicial Conference policy on carrying firearms by probation officers. The policy does not permit probation offices to carry firearms unless approved by their respective courts and certain conditions have been met. Although a firearm might have helped Tom Gahl in this particular incident, there are many circumstances where the presence of a firearm could aggravate the matter. The decision to carry firearms is best left to the appointing authority with direct oversight of the probation officer.
The reviewers found good communication between the officers and Jackson when his case was transferred and between the officers and the mental health agency. Several points, however, need to be reemphasized to probation offices. They are:
1. Probation offices should encourage their courts to order presentence investigations or complete post sentence reports in all high risk cases which come under supervision. Such a report will help insure staff is aware of the complete backgrounds of individuals under supervision.
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2. Probation offices should emphasize careful release planning in high risk cases including close contact and coordination with local correctional, mental health, or social agencies which will be providing services. Assigning prerelease cases to a probation officer as soon as the institution begins release planning or when the first furlough occurs will result in clearer communication between institution staff, the probation officer, community agencies, and the client. Whenever possible, prerelease cases should be assigned to the probation officer who ultimately will be responsible for supervision.
3. Probation offices should carefully review the need for officers to make home or community visits with high risk offenders who have assaultive backgrounds, are mentally unstable, or have strong anti-authority or anti-government beliefs (expressed by affiliation with prison gangs or anti-government organizations). Although the officer has an obligation to make certain an individual is complying with the terms of supervision, it might be prudent to utilize alternative methods to insure officer safety. Examples of such methods are office visits, meetings at neutral or public sites, and frequent contact with relatives.
Mr. MCCOLLUM. Mr. Barr, you are recognized for 5 minutes.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Chairman, I would like to do something that perhaps would have helped place in context some of the testimony of the witnesses a little bit earlier, and that is to focus on the language of the statute we are proposing here today, the language of the bill.
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I think anybody who actually reads this and understands the plain meaning of it will see very readily that it does not fall into the category of reckless or extreme or unbridled authority, basically saying that the sky is going to fall if we simply provide a uniform policy for a power that is already there.
It is funny, Ms. De Santis. If you believe the rhetoric on both sides of you today, both you and I ought to feel pretty bad today because simply calling for this authority to help protect all probation and pretrial officers, rather than just those that happen to live in districts in which the judges agree with them that they ought to be protected, has been characterized as extreme, unbridled, unwarranted, reckless—and these are the words you constantly hear up here. Anytime we propose anything it is characterized as extreme, unbridled, reckless, and unwarranted.
Even reducing the marriage tax penalty has been characterized as extreme. Reforming welfare has been characterized as extreme. So you tend to discount that. Don't feel bad about it. It is not the case.
This is not granting unbridled, reckless, extreme, unwarranted authority to probation officers. It does not take away in any way, shape, or form, the authority that the judges in our district courts obviously have and obviously need. They will continue to have to maintain full and complete disciplinary authority over probation and pretrial officers.
So raising the red herring that this will remove that authority from you is a little bit disingenuous. I think you have complete authority to do that, as any employer would.
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This amendment simply says that for probation and pretrial officers, they shall ''be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the director of the Administrative Office of the United States District Court.''
That gives your organization very significant authority to make sure that whatever probation officers are carrying firearms—and this doesn't mandate that they have to, it just says that they have the authority to do it—you maintain full and continuing authority for regular retesting, evaluations, and at any time if any one of these officers shows signs of mental instability or some sort of problem, this language does not in any way diminish your capacity, capability, or responsibility to deal with that.
So I think that we really need to put this whole thing in proper perspective. It does not mean the sky is going to fall. There are no constitutional issues here. This is simply a proper oversight by the Congress, addressing an authority that is already there, that seems to be working very well, and simply saying that in the view of the Congress—or those of us who support this legislation—and in the view of the officers that are carrying out these responsibilities, that it does reflect a change.
I think one of our colleagues on the other side was musing over the fact that maybe nothing is changed. The reality is that the job that these men and women face has changed. The environment in which they are working has changed.
For example, in the Federal Probation Journal for June of this year, Volume 64 number one, it notes that the Federal Probation and Pretrial Officers Association's national committee on safety training noted that between 1984 and 1997 there was a 237 percent increase in hazardous incidents reported. Then it goes on to correctly characterize the current environment—that I would think none of us would disagree with—that probation and pretrial services officers face, saying, ''The population now being supervised has changed drastically from the white collar probations of the past to more dangerous, recidivous of today.''
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So I think merely what we are trying to do is reflect the fact that the situation in which your employees—and I know you are concerned about them—face today. We wish it were otherwise, but it is a very dangerous situation. When I look, for example, at the 10 districts that currently do not allow the officers to protect themselves by carrying firearms under appropriate supervision and training, there is no common thread. I think it is a power that is being exercised very arbitrarily and that concerns us.
We want to bring some uniformity to it. We don't diminish and have no intent to diminish the ability of the judges to properly supervise and protect those whom they serve. And I don't think this legislation does that. It is very narrowly and very carefully crafted, I believe, and I think it will serve all of you—the judges, the pretrial officers, the probation officers, and the public—very, very well by simply bringing uniformity and sending a very important message to the men and women that serve this country in these capacities that we are concerned about their safety and we do want them to be able to protect themselves.
Thank you.
Mr. MCCOLLUM. Thank you, Mr. Barr.
Mr. Rothman?
Mr. ROTHMAN. Thank you, Mr. Chairman.
This hearing raises more questions in my mind that I don't have the answers to, and I would like to get the answers.
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For example, I am aware of the dangerous nature of the street in the 1970's and 1980's, in particular, when crack was running wild. Crack is not so much running wild these days as it was in the 1980's. What was the incidence of serious assaults on probation officers during the 1980's? Was it higher? Lower?
I understand the gentleman from Georgia's comments citing the statistic about the 237 percent increase from 1984 to 1997. I heard that. I would be interested to know the numbers. For example, if the incidents nationwide went from 10 officers injured a year to 24 a year, that would be an increase of 240 percent. Are we talking about 10 to 24? That increase over that period of time? What are the numbers?
Are there any risks? We have heard that there are risks to this legislation. It is hard to quantify that. Would it encourage officers to go into situations that they would otherwise reasonably avoid?
What are the benefits of giving every probation officer the ability to carry a weapon, albeit with weapons training determined by the judge?
Again, I don't know whether the system is broken and needs to be fixed. Ms. De Santis said something that was very powerful. Judges are not aware of the dangers probation officers are exposed to. Judges are not aware of the dangers probation officers are exposed to. I don't know how that could be. If in fact the probation officers make applications to the judges and present their cases to the judges about the dangers they face, how could a judge not be aware of it? Maybe they don't get it, they don't understand it, they can't empathize, but certainly the officers have a chance to impress upon the judges the dangers they do face.
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Ms. De Santis, do you want to comment on that?
Ms. DE SANTIS. Yes, sir.
I hear what you are saying and I am just amazed that that sentence is being questioned.
The judges have security in their own Federal buildings. Why? But yet you are asking a probation officer to go out into inner city and if it is a non-carry district, you are asking them to go in there and impose the rules that the judge is giving them to impose. These rules are becoming more intrusive