The Honorable Arlen Specter
Chair, Senate Judiciary Committee
Washington, D.C. 20510
The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
Washington, D.C. 20510
Oppose the Draconian Measures Proposed in S.155, Gang Prevention And Effective Deterrence Act of 2005
Senator Feinstein (D-CA) has introduced S.155, the Gang Prevention and Effective Deterrence Act of 2003 (""Gang bill""). The Gang bill would subject innocent people to the death penalty, creates a very broad and vague definition of a ""gang,"" makes nearly every major federal crime involving three or more people a ""gang"" crime, results in wrongful convictions based on unreliable evidence, and creates more serious juvenile offenders by incarcerating children in adult prisons. The Senate Judiciary Committee is scheduled to mark up this bill on June 30 and 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. S.155 would create several new gang related offenses and make them punishable by the death penalty as well as increase the penalty for an existing offense 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 S.155, 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, 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. This raises constitutional as well as public policy concerns. The Constitution states that ""the Trial of all Crimes . . . shall be by Jury; and shall be held in the State where the said Crimes shall have been committed.""[2] Prosecuting cases in the jurisdiction where the crime occurred is important in order to prevent undue hardship and unfairness when an accused person is prosecuted in a place that has no significant connection to the offense with which he is charged. 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 For Most Major Federal Offenses 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 non-violent offenses. Title I revises the already broad definition of ""criminal street gang"" to an even more ambiguous standard of ""a formal or informal group, club or organization of three (3) or more people who individually, jointly, or in combination have committed or attempted to commit"" at least two (2) predicate gang crimes for the benefit or furtherance of the ""gang"" within 10 years of each other. The informal group or associates of three or more people must commit one predicate crime of violence or a drug trafficking crime that affects interstate commerce to qualify as a gang.
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 be just associates or casual acquaintances under this proposed legislation. Under the Gang bill a ""continuing series"" of crimes do 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. S.155 would permit prosecutors to charge non-violent offenders with gang crimes. The prosecutor is only required to prove that two (2) or more predicate gang offenses were committed within 10 years of each other (excluding any time served in jail or prison). This provision would result in people being convicted of ""gang"" crimes that have no ongoing nature and that have no connection to each other that occurred 10 years or more apart.
Predicate gang crimes consist of virtually every major federal offense, including gambling and burglary. Any conspiracy to commit a predicate gang offense would also qualify as a predicate offense. Under this legislation's definition of a criminal street gang, people who may commit non-violent offense could be considered gang members. For example, if a person is with two friends who attempt to sell drugs to an undercover officer and any of the three later provide police with a false identification the person who was not involved in the attempted drug transaction will still be responsible both gang crimes. Even though the person never participated in the attempted drug deal and was not a member of a ""gang,"" he would go to prison for committing a gang crime.
S.155 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. Title II of the Gang bill would extend the statute of limitations for non-capital crimes of violence. Generally, the statute of limitations for non-capital federal crimes[4] is five (5) years after the offense is committed. This bill would extend that limitation for crimes of violence to 10 years after the offense was committed or the continuing offense was completed, or eight (8) years after the offense was discovered. For example, if a violent crime was committed in 2004, but it wasn't discovered until 2014 the statute of limitations would be extended until 2022. In 2022, 18 years after the crime, alibi witness could have disappeared or died, other witnesses' memories would have faded and evidence may be unreliable. This could affect a person's ability to defend themselves against charges and to receive a fair trial if older evidence and less reliable witness testimony are used against them during a trial.
In addition, 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 the person's 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 Gang 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] S.155 would permit 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, commits a crime of violence and has a prior juvenile adjudication (that would have been a serious felony) and commits a subsequent felony involving physical force in relation to drug trafficking or smuggling, arson, or destruction of an aircraft or vessel. A child 16 years or older who commits a serious violent felony[6] will also be subjected to prosecution in adult criminal court. The only recourse that the young person will have is to attempt to persuade the court during a ""reverse waiver"" hearing that he should not be tried as an adult and sent to adult prison. This legislation shifts the burden squarely on the shoulders of the child to overcome a presumption that the child should be prosecuted in adult court and establish by clear and convincing evidence that it would be in the interest of justice that he be tried in juvenile court.[7]
The federal system does not have the resources or the facilities to address the needs of youth under the age of 18. 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. 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.[8] 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. S.155 will not solve the problem of gang crime in this country, thus senators should oppose this bill when it is considered by the Senate Judiciary Committee.
Sincerely,
Greg Nojeim
Acting Director
Jesselyn McCurdy
Legislative Counsel
cc: Senate Judiciary Committee
Senate Majority Leader Bill Frist
Senate Minority Leader Harry Reid
Footnotes
[1] The offenses under this legislation that could be punishable with the death penalty are 18 U.S.C. Sec. 523 Violent Crimes in Furtherance or in Aid of Criminal Street Gangs; 18 U.S.C. Sec. 1952 Interstate or Foreign Travel or Transportation in aid of Racketeering Enterprises and Criminal Street Gangs; 18 U.S.C 1958 Use of Interstate Commerce Facilities in the Commission of Murder For Hire and other Felony Crimes of Violence; 18 U.S.C 1959 Racketeering Activity; 21 U.S.C. 841 et. Seq. Murder and Other Violent Crimes Committed During and In Relation to a Drug Trafficking Crime; and 18 U.S.C. Sec. 1111 et. al. Multiple Murders in Furtherance of a Common Scheme or Purpose.
[2] U.S. Constitution, Article III Section 2
[3]18 U.S.C. 521(a)(B).
[4] 18 U.S.C. 3282
[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] A Serious violent felony, which has a sentencing of ten or more years. [7] The court will also consider the factors listed in the footnote above to make its determination.
[8] 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.