Dear Representative:
Oppose the Ineffective Policies Proposed in H.R.1279, The Gang Deterrence and Community Protection Act of 2005
Representative Randy Forbes (R-VA) has introduced H.R.1279, the Gang Deterrence and Community Protection Act of 2005 ("Gang bill"). The Gang bill could subject innocent people to the death penalty, creates numerous discriminatory mandatory minimum sentences, could result in wrongfully convictions based on unreliable evidence, and creates more serious juvenile offenders by incarcerating children in adult prisons. H.R.1279 is scheduled for a vote on the House floor on Wednesday, May 11, 2005, we strongly urge you to oppose this legislation.
Congress Should Not Expand The Federal Death Penalty Until It Ensures Innocent People Are Not On Death Row.
Expansion of the federal death penalty undermines the very reforms that were enacted in last year's Justice for All Act (P.L. 108-405), which addressed some systemic problems with the federal death penalty. H.R.1279 would create several new offenses and make them punishable by the death penalty as well as increase the penalty for several existing federal offenses to the possibility of a death sentence.[1]
The death penalty is in need of reform, not expansion. According to the Death Penalty Information Center, 119 prisoners on death row have now been exonerated. Chronic problems, including inadequate defense counsel and racial disparities, plague the death penalty system in the United States. The expansion of the death penalty potential for gang crimes creates an opportunity for more arbitrary application of the death penalty. States continue to address the systemic problems with the administration of the death penalty by implementing reform and moratorium efforts, while the federal government, in H.R.1279, is moving to expand the death penalty in lieu of enacting or implementing reforms on the federal level.
In addition to expanding the number of federal death penalty crimes, Section 110 of the bill expands venue in capital cases to the point that any location even tangentially related to the crime could be the site of a trial. Studies of the federal death penalty show that a person prosecuted in Texas is much more likely to be charged, tried and sentenced to death in a capital case than a person who is prosecuted for the same crime in Massachusetts. This bill will exacerbate these geographic inequities that exist in the federal death penalty system. The wide range of discretion in both what to charge and where to bring the charge will give prosecutors tremendous latitude to forum shop. This broad discretion will increase the racial and geographic disparities already at play in the federal death penalty.
People Could Be Convicted Of A "Gang" Crime Even If They Are Not Members Of A Gang.
This bill would impose severe penalties for a collective group of three or more people who commit "gang" crimes. Even more disconcerting is that a person could receive the death penalty for the illegal participation in what would be considered a "criminal street gang" while having no idea or intention of being a part of a so-called "gang." [2] H.R.1279 revises the already broad definition of "criminal street gang" to an even more ambiguous standard of a formal or informal group or association of three (3) or more people who commit two (2) or more "gang" crimes. The number of people required to form a gang decreases from five (5) people in an ongoing group under current law to three (3) people who could just be associates or casual acquaintances under this proposed legislation.
Under the Gang bill a "continuing series" of crimes does not have to be established to charge a person with a gang crime. Presently, the government has to establish that criminal street gangs engaged "within the past five (5) years in a continuing series of offenses."[3] The continuing series of offenses under current law is essential to preserving the concept of gang activity that the law is trying to target, i.e. criminal activity that has some type of connection to a tight knit group of people. This broader definition of gang crime in H.R.1279 would result in people being convicted of "gang" crimes that are neither ongoing in nature nor connected to each other, and could occur 10, 15 or 20 years apart.
H.R.1279 Further Erodes Federal Judges' Sentencing Discretion By Proposing Harsher Mandatory Minimum Sentences.
This legislation further erodes the sentencing discretion of judges by imposing mandatory minimums that would result in unfair and discriminatory prison sentences.
Many of the enhanced gang penalties in this bill are mandatory minimum sentences or death. Mandatory minimum sentences deprive judges of the ability to impose sentences that fit the particular offense and offender. Although in theory mandatory minimums were created to address disparate sentences that resulted from indeterminate sentencing systems, in reality they shift discretion from the judge to the prosecutor. Prosecutors hold all the power over whether a defendant gets a plea bargain in order for that defendant to avoid the mandatory sentence. It is not clear what standards (if any) prosecutors use to offer plea bargains, therefore only a few defendants get the benefit of avoiding the mandatory sentence. This creates unfair and inequitable sentences for people who commit similar crimes, thus contributing to the very problem mandatory minimums were created to address.
H.R.1279 Jeopardizes A Person's Right To A Fair Trial And Creates The Possibility That Innocent People Would Be Held For Long Periods Of Time Prior To A Trial.
Innocent people could be convicted of crimes they did not commit if the statute of limitations is extended as proposed in this legislation. The Gang bill proposes to extend the statute of limitations for non-capital crimes of violence. Generally, the statute of limitations for non-capital federal crimes is five (5) years after the offense is committed. [4] This bill would extend that limitation for crimes of violence to 15 years after the offense was committed or the continuing offense was completed. For example, if a violent crime was committed in 2005, but a person was not indicted until 2020, that individual could be charged with a crime 15 years later. In 2020, 15 years after the crime, alibi witnesses could have disappeared or died, other witnesses' memories would have faded and evidence may be unreliable. The use of questionable evidence could affect a person's ability to defend themselves against charges and to receive a fair trial.
Shifting the burden of proof for pretrial detention in some cases involving guns could result in serious injustices and interfere with an accused person's defense. This legislation would create a rebuttal presumption against bail for people accused of certain firearms offenses during the commission of serious drug crimes. A person who is presumed innocent and has not been found guilty of any crime could be held for months or years without the government having made any showing that he or she is dangerous or a flight risk. Making it more difficult for an accused person to be released on bail prior to trial hinders a defendant's ability to assist their defense lawyer with investigating the facts of the case and preparing their defense.
Children Would Be Put In Federal Prison With Little Opportunity For Education Or Rehabilitation.
Under the Gangs bill, more children will become hardened criminals after being tried in federal court and incarcerated in adult prisons. Currently under federal law, when the government recommends trying a juvenile as an adult in federal court various factors must be considered by the court before deciding whether the criminal prosecution of a young person is in the interest of justice. These factors include the age, social background, and the intellectual development and psychological maturity of the child.[5] H.R.1279 would give the prosecutor the discretion to determine when to try a young person in federal court as an adult, if the juvenile is 16 years of age or older and commits a crime of violence.
The decision by a prosecutor to try a juvenile as an adult cannot be reviewed by a judge under this legislation. This unreviewable process of transferring youth to adult federal court is particularly troubling when juveniles are not routinely prosecuted in the federal system and there are no resources or facilities to address the needs of youth. The federal government should continue to let states deal with juveniles in their family court systems that were created to address the needs and provide services to young people. Furthermore, a 1996 study showed that youth transferred to adult court in Florida were a third more likely to reoffend than those sent to the juvenile justice system for the same crime and with similar prior records. Of the youth in this study who committed new crimes, those sent to adult court reoffended at twice the rate of those sent to juvenile court.[6] This research emphasizes the need for juveniles to be held accountable in the juvenile justice system, which has more resources to address the problems that cause children to come to the attention of the court system.
While efforts to address gang crime are very important to maintaining public safety, this legislation proposes to confront crime at the expense of the right to a fair trial, at the risk of convicting innocent people and unnecessary exposure to the death penalty. H.R.1279 will not solve the problem of gang crime in this country, thus members should oppose this bill when the House of Representatives votes on Wednesday, May 11, 2005.
Sincerely,
Greg Nojeim
Acting Director
Jesselyn McCurdy
Legislative Counsel
Footnotes
[1] The offenses under this legislation that could be punishable with the death penalty are 18 U.S.C. Sec. 521 Criminal Street Gang Prosecutions; 18 U.S.C. Sec. 1952 Interstate or Foreign Commerce-related Aid to Racketeering; 21 U.S.C. 841 et. seq. Murder and Other Violent Crimes Committed During and In Relation to a Drug Trafficking Crime; 18 U.S.C 1958 Use of Interstate Commerce Facilities in the Commission of Murder For Hire and other Felony Crimes of Violence and 18 U.S.C. Sec. 1111 et. al. Use of Interstate Commerce Facilities in the Commission of Multiple Murder.
[2] If the predicate gang crime involved murder or conspiracy to commit murder.
[3] 18 U.S.C. 521(a)(B).
[4] 18 U.S.C. 3282 (See the exception for Chapter 109A offenses involving DNA evidence).
[5] See 18 U.S.C. 5032 Delinquency proceedings in district court; transfer for criminal prosecution. This provision also indicates that the court will consider the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the nature of past treatment efforts and the juvenile's response to those efforts; and the availability of programs designed to treat the juvenile's behavior problems. [6] Bishop, Donna M. et al. "The Transfer of Juveniles to Criminal Court: Does it make a difference?" Crime and Delinquency, Vol. 42, No. 2, April 1996.