ACLU Letter to the Senate Urging Opposition to S.1735, the Gang Prevention and Effective Deterrence Act of 2003

The Honorable Orrin Hatch
Chair, Senate Judiciary Committee

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee

Oppose the Draconian Measures Proposed in S.1735 Gang Prevention And Effective Deterrence Act of 2003

Senators Hatch (R-UT) and Feinstein (D-CA) have introduced S.1735, the Gang Prevention and Effective Deterrence Act of 2003 (""Gang bill""). The Gang bill would subject innocent people to the death penalty, make nearly every major federal crime involving three or more people a ""gang"" crime eligible for enhanced mandatory minimum sentences, result in people being wrongfully convicted based on unreliable evidence, and create more serious juvenile offenders by incarcerating children in adult prisons. The Senate Judiciary Committee is scheduled to mark up this bill on April 22 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 are proposed in the Innocence Protection Act (IPA) legislation, which will address some systemic problems with the federal death penalty. The House has passed and the Senate is considering the IPA, which is Title III of H.R. 3214 and S.1700 (""Advancing Justice Through DNA Technology Act of 2003""). Title I of S.1735 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] Until the IPA is enacted, the federal government continues to put people in jeopardy of being wrongfully convicted. In addition, 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.1735 is moving to expand the death penalty in lieu of enacting or implementing reforms on the federal level.

People Would Be Convicted Of A ""Gang"" Crime For Most Major Federal Offenses Although They Were 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. 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[2]"" while having no idea or intention of being a part of a so-called ""gang."" 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 act or agree to act in concert, alone or in combination with each other, to commit two (2) or more predicate gang crimes within 10 years of each other. 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. 1735 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 but either arises out of the same incident or crimes 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. Most federal conspiracy offenses would fall under the definition of criminal street gang activity. Under this legislation's definition of a criminal street gang, people who initially agree to participate in a crime, but ultimately have no intention to commit the crime would be charged with a gang offense if another person later commits the crime. For example, if a person agrees to sell drugs with two friends and drives them to the location of the deal, but backs out and does not participate in the transaction. If one of the friends ultimately makes the drug deal, the person who backs out of the crime could be held responsible for any underlying conspiracy and a mandatory minimum sentence for a gang offenses because initially he agreed to participate in the crime with his friends. Even though the person never completed the drug deal and was not a member of a gang, he would go to prison for committing a gang crime.

S. 1735 Further Erodes Federal Judges' Sentencing Discretion By Proposing More Harsh Mandatory Minimums Sentences.

This legislation further erodes the sentencing discretion of judges by imposing mandatory minimum sentences that would result in unfair and discriminatory prison terms. 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 mandatory minimums were designed to reduce the racial inequalities too often resulting from judicial sentencing discretion, in practice they shift discretion from the judge to the prosecutor. Prosecutors retain the power to plea bargain and choose which defendants they will offer plea agreements to in order for those defendants to avoid the mandatory penalty. 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.

The penalty for illegal participation in a criminal street gang under this legislation would increase from up to 10 additional years for the underlying offense to a 15-year mandatory minimum sentence if the defendant has a prior conviction for a predicate offense; a 10-year mandatory minimum sentence for using a minor to commit a predicate gang crime; a 15-year mandatory minimum sentence for gang leadership role; and the death penalty if the predicate gang crime involved murder or conspiracy to commit murder. This bill also creates a new federal offense for recruiting a person into a criminal street gang and mandates a three (3) year mandatory minimum sentence for causing a minor to "be or remain" in a criminal street gang.

S. 1735 Jeopardizes A Person's Right To A Fair Trial And Creates The Possibility That Innocence People Would Be Held For Long Periods Of Time Prior To A Trial.

Innocent people could be convicted of crimes they didn't commit if the statute of limitations is extended as proposed in this legislation. Title II of 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[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.

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 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] S.1735 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 or has a prior conviction/juvenile adjudication and commits a subsequent felony involving physical force. 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.[6]

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. 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.[7] 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.1735 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,

cc: Senate Judiciary Committee
Senate Majority Leader Bill Frist
Senate Minority Leader Tom Daschle

[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. 523 Violent Crimes in Furtherance or in Aid of a Criminal Street Gang; and 18 U.S.C. Sec. 1952 Interstate and Foreign Travel or Transportation in Aid of Criminal Street Gangs; 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

[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] The court will also consider the factors listed in the footnote above to make its determination.

[7] 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.