Testimony on S. 54, Criminal Street Gangs, by David Kopel

Testimony of David B. Kopel,
Associate Policy Analyst, Cato Institute,
and Research Director, Independence Institute

Before the

United States Senate Judiciary Committee

Hearings on Criminal Street Gangs

April 23, 1997

105th Congress, First Session

David B. Kopel
14142 Denver West Parkway
Suite 185
Golden, Colorado 80401
(303) 279-6536
website: http://www.cato.org

Summary of Key Points:

* If enacted, S. 54 would impose the most severe increase ever enacted for penalties for minor violations of federal gun laws. Many paperwork and other trivial violations would be raised to ten-year mandatory sentences.

* The bill imposes draconian mandatory sentences on many minor offenses, such as low-level gambling--which are not the legitimate concern of the federal government.

* The bill makes even the tiniest infractions of the federal Gun Control Act into RICO predicates, putting gun owners, retailers, and manufacturers at the mercy of anti-gun attorneys armed with RICO's powerful civil suit provisions.

* At a time when budget deficits are a major drag on the national economy, the bill authorizes a hundred million dollars in additional spending for prosecution of crimes which should properly be prosecuted by states and localities.

* Section 9 imposes an extra sentence when a defendant used body armor during a crime. In an astounding insult to the rule of the law, the bill creates a special exemption when the criminal using the body armor is a law enforcement officer.

Thank you, Mr. Chairman, for the opportunity to present this written testimony to the Senate Judiciary Committee.

Imagine the following scenarios:

* Every week, a group of office workers bet money on NFL football games, in an office betting pool.

* A father and a mother take their teenage children target shooting every weekend one summer. The teenagers use their parents’ handgun, under parental supervision. Although the teenagers are under continuous parental supervision, the teenagers do not possess and keep in their possession at all time a written note from their parents authorizing the children to possess a handgun at the target range.

* A restaurant owner hires a husband and wife to work as dishwashers. The owner knows that the couple came to the United States on a tourist visa, spent too much money traveling, and is working to get enough money to return home.

* Three adult men often go hunting together, and like to tinker with their rifles. One afternoon, they put a folding stock on one of their rifles, to make it easier to carry in the field. Another day, they put a muzzle brake on a rifle, to make the follow-up shot more accurate.

* A college student owns a small bag of marijuana. At the request of his two roommates, he sells them each a marijuana cigarette, for one dollar each.

All of the above activities are already federal crimes. S. 54 would substantially increase the penalty for all these crimes, by defining the persons who did any of these things as a "criminal street gang" engaged in a "pattern of criminal gang activity."

Every one of the persons described in the above scenarios would be imprisoned for a minimum of ten years. All property associated with the crime (such as the restaurant where the illegal aliens worked, the hunting lodge, all the guns, the cars that carried the guns, and the office computers which tracked the football betting) would be forfeited to the federal government. [The statutory language behind the above scenarios is detailed in the discussion of section 3 of S. 54, below.]

How can it be that a bill bearing the attractive title of "Federal Gang Violence Act" can impose many draconian, patently unjust penalties on persons who have nothing to do with gangs? The answer, oddly enough, is that everything gangs do--such as sell controlled substances, kill rival gang members, and steal property--is already illegal under state and federal law.

Because the enactment of legislation is often confused with genuine action, enacting "anti-gang" legislation may have a strong political appeal--even when the criminal law has already covered everything that gangs do. When there a few substantive laws which can be added (e.g., murder and drug dealing are already illegal), legislatures may be tempted to create what might be called "second order laws." That is, laws which take existing laws, arrange those existing into new combinations, and create new "crimes" out of the new combinations.

For most part, S. 54 is a second-order law. It takes existing federal criminal laws--many of them for very minor crimes--and creates new crimes--with severe penalties--built of the bricks of trivial crimes.

In an era when hardly any Congressperson carefully reads and studies the text of every bill he or she is voting on, second order laws are especially dangerous. Because the impact of the bill depends heavily on the content of other laws, which are only briefly referenced, many legislators may not understand the implications of S. 54's severe penalties. So let us now examine S. 54 clause-by-clause.

SECTION 1. TITLE.

The bill is titled the "Federal Gang Violence Act." Accordingly, it should deal only with gang violence. But most of the crimes which are labeled as "gang" crimes are not violent crimes. The vast majority of the persons who are covered by the law are not gang members. And the bill addresses other subjects--such as the possession of handguns by teenagers, or the wearing of body armor by anyone--which sometimes involve gangs, but which usually do not.

In Colorado, the state Constitution requires that the subject of bill be clearly expressed in the title. If a bill contains provisions not covered by the title, those provisions will be stricken.

Regarding S. 54, narrowing the bill down to the subject expressed in its title would require striking:

* Section 2, which does not distinguish non-violent crimes from violent crimes for sentencing enhancement.

* Section 3's proposed 18 U.S.C. 521(a)(3) in its entirety, except for the proposed 51(a)(3)(A)(I). All of the rest of the definition of "predicate gang crime" encompasses non-violent crimes.

* Section 4's expansion of the laws against use of a facility of interstate commerce (e.g. taking a bus) to encompass the non-gang, non-violent activities in section 3.

* Section 5's solicitation provision and section 6's recruitment provision. Since these provisions are dependent on Section 2's definition of "predicate gang crime," they apply almost entirely to non-violent crimes.

* Section 7's provision of a mandatory one-year prison term for any violation of the federal juvenile handgun law (i.e., a teenager not having a note from her parents when she is lawfully going target shooting).

* Section 8's sentence enhancement for use of a body armor in a crime, regardless of whether the crime had the anything to do with a gang, or was violent. Whatever the merits of this provision, it ought to be contained in a bill that has "body armor" in the title. Most persons, even most criminals, who wear body armor are not part of violent street gangs.

In short, the vast majority of S. 54's content and effect are for matters--mostly non-violent crimes--which are hardly within the scope of a "Federal Gang Violence Act."

The authors of Colorado's Constitution believed that the requirement that all language in a bill be encompassed within the title is an important element of responsible government. With clear titles that express the subject matter of the bill, citizens and legislators are better able to participate in the democratic process. Conversely, when bills contain--or mostly consist of--matters beyond the scope of their title, then citizens and legislators are misled. Important provisions of the bill may not receive the scrutiny they deserve.

S. 54 is hardly the worst offender, but Congress would work better, and be better respected by the public, if each house immediately adopted a title disclosure provision, similar to the one in Colorado's Constitution.

SECTION 2. INCREASE IN OFFENSE LEVEL FOR "GANG" MEMBERSHIP

This section requires a six-level sentencing enhancement for gang crimes. Before getting into the very overbroad "gang" definitions, which are discussed below in connection with section 3, it is important to note the implications of the section 2 sentencing enhancement.

The enhancement is mandatory, and, like many other federal sentencing enhancements, can apply even when a defendant is acquitted. For example, suppose a gun store owner is charged with various paperwork violations, under the Gun Control Act. Since these violations are also "criminal street gang" predicate crimes, the owner and his employees are charged with violating S. 54. The owner and employees are acquitted of three charges related to paperwork, convicted of one paperwork charge, and acquitted for the "criminal street gang" charge.

But federal judges are required to sentence defendants under "real offense" sentencing, which means that defendants are not sentenced only for the crimes for which they have been found guilty. At the sentencing phase for the single paperwork violation, the judge will be required to make his own determination of what crimes the defendants committed. If he finds by a preponderance of the evidence (51%) that the defendant committed a particular act (even if the jury specifically acquitted the defendant of that act), the defendant must be sentenced for that act.

In the case of an S. 54 violation, the defendant's sentence for the single paperwork violation would be raised six steps, based on the judge’s finding that the defendant's gun store was did fall under S. 54's definition. A six step increase in the sentencing level can take a crime for which no prison time might be imposed (a presumptive sentence of 0 to 6 months) into a range requiring a year or more of prison (a presumptive range of 12 to 18 months).

SECTION 3. CRIMINAL STREET GANGS

DEFINITION OF "CRIMINAL STREET GANG"

A "criminal street gang" is defined as a "formal or informal" "ongoing group, club, organization, or association of 3 or more persons" who meet certain requirements.

There is difference between a genuine gang (such as the Crips)--which typically has dozens or thousands of members--and a mere group of friends. Three juvenile delinquents may spend a lot of time together, and even commit various crimes together, but they are not a real gang. (The three are, of course, still criminals, and can be punished for violating whatever laws they violate.)

It is notable that this broad definition of a "criminal street gang" has nothing to do with committing gang crimes in the street. A group of agoraphobics who stayed indoors for twenty years could still qualify as a "criminal street gang."

It is reasonable for legislators to address both indoor and outdoor crimes. It is not reasonable for legislation to label people with damning terms like "criminal street gang" if the people are not street gangsters.

The "informal" "association" of "3 or more persons" must meet the following requirements to be a "criminal street gang":

(A) "a primary activity" is the commission of predicate gang crimes. This provision refers to "a primary activity," rather than "the primary activity." Logically, only one item in any set can be "primary." But the language about "a" primary activity implies that the group could have "several" primary activities. Apparently the bill means to use "primary" in the sense of "important" rather than in the sense of "primary." The language obviously raises problems of vagueness, but one thing is certain: "a primary activity" need not be the group's main reason for existence. Thus, a prosecutor could readily argue that while a gun store's most important activity was selling guns, the store's violations of federal paperwork laws were "a" primary activity at the store.

(B) The second requirement for being a "criminal street gang" is that one member must engage in a "pattern of criminal gang activity." To the ordinary speaker of English, the word "pattern" implies many instances of the activity. (i.e. "George Steinbrenner has a pattern of personal conflicts with the managers of the New York Yankees.") But in S. 54, a "pattern" is defined as two or more crimes--from a very broad list--committed within a five year period. The "pattern of criminal gang activity" could be satisfied by a man who punched someone during an argument in 1994, and then ran a football betting pool in 1998.

(C) The third requirement is that the activities of the gang "affect interstate or foreign commerce." This requirement is trivial, since prosecutors can argue that any activity has at least a minor effect on the economy, any economic effect can be construed as somehow affecting interstate commerce. Unfortunately, federal courts have been very sympathetic to such tenuous reasoning.

PREDICATE GANG CRIMES

The very broad definition of "criminal street gang" makes it very easy for almost any association of three people, including almost any business, to be labeled a "criminal street gang," providing that at least one person in the group commits two "predicate gang crimes" in a five year period, and offenses are in some way "committed in connection with, or in furtherance of" the group.

Most people who hear the phrase "predicate gang crimes" would think of drive-by shootings, fencing stolen property, first degree assault, and a few other major violent felonies. But S. 54 defines "predicate gang crimes" to include a vast number of minor or non-violent crimes, many of which are paperwork offenses, which real gang members--generally illiterate--would never commit.

Let us examine each of the five subsections listing a "predicate gang crime":

(i). Any crime of violence.

This section is an excellent illustration of the problem with second order legislation. While the text of the bill lists a few particularly serious types of violent crime associated with gangs (e.g. "drive-by-shooting"), the bill makes any "crime of violence" into a "criminal street gang" predicate. Many legislators will simply read "crime of violence," never check the reference to another part of the U.S. Code, and will assume that other crimes covered by (i) are also major interpersonal felonies.

But in fact, the bill references 18 U.S.C. sect. 16 for its definition of "crime of violence"; this section includes any unlawful use or attempted use of physical force (i.e. shoving someone during a loud argument) or any of physical force against property (e.g. snapping a pencil) into a "crime of violence."

The point is not that shoving someone or breaking his pencil should be considered all right. Such offenses are properly covered by existing criminal codes. The question is whether every crime involving even the most trivial use of physical force should be considered a predicate activity proving membership in a "criminal street gang."

(ii). Any controlled substance offense for which there is a five year minimum penalty.

Notably, this provision does not require any sale of a controlled substance. There are many federal controlled substance laws which impose a five-year penalty for possessory offenses, or for very minor sales. For example, there is a five year mandatory sentence for sale of even a single gram of marijuana if the sale occurs within one thousand feet of any type of school--even if the sale occurs on private property, and has no relation to the school, or any person of school age.

Simple possession of more than five grams of crack is also a five year mandatory sentence.(A United States quarter weighs about the same as five grams of crack.) In other words, a group of friends who get together two times in a five year period to consume crack would be "a criminal street gang."

Again, my point is not to criticize the underlying laws. Those laws are on the books, and will stay on the books, whether or not S. 54 is enacted. The point is that the penalties for the underlying offense are already quite severe, and it is wrong to make these penalties even more draconian by artificially labeling non-gang crimes as "predicate gang crimes."

(iii). The big one: any federal firearms offense; any federal gambling offense; defaming the dead.

The entire federal Gun Control Act is thrown in as a predicate gang offense. Notably, the Gun Control Act does not define any violent crimes. Rather, the act defines possession of a gun under various conditions as a crime, bans some guns, and establishes a complex regulatory system for licensed firearms dealers.

To state the obvious, a federally-licensed firearms dealer is a not a "criminal street gang." He operates out of a storefront, not on a street. But the kinds of paperwork offenses, generally misdemeanors, which a store might commit are labeled "gang" crimes.

Many other minor firearms offenses would be turned into "predicate gang crimes." For example:

It is illegal (and it would therefore be a "predicate gang offense") to put certain accessories, such as a folding stock or a bayonet lug, on an imported gun. [18 U.S.C. 922(r).]

It is illegal to take your own children target shooting with a handgun unless the children carry a permission note from you at all times.

Even if the children are carrying the note, it is illegal if they transport the unloaded handgun to a target range in a case, and they do not lock the case. [18 U.S.C. 922(x).]

It is illegal even to hold a gun in your hands if you were once convicted of a domestic violence misdemeanor, if you have used drugs within the last year. [18 U.S.C. 922(g).]

It is illegal to have a gun in your car for protection if your car comes within a thousand feet of a school. It is no defense to this crime to point out that your state's laws specifically authorize carrying a gun in a car for protection, and no permit is needed to so carry. [Gun Free School Zones Act of 1996.]

Simply put, this clause amounts to a sub rosa repeal of the Firearm Owners Protection Act of 1986. Enacted in response to copious testimony about abusive prosecution, the bill lowered the penalties for various paperwork offenses. This clause turns all those minor offenses into "predicate gang crimes" carrying a ten year mandatory minimum.

Besides all firearms offenses, subsection (iii) also references the federal explosives statute, the federal arson statute, and the federal extortion statute. Many of the crimes in these statutes are serious violent felonies, and already severely punished for federal law. Other crimes are not as serious [such as threatening to injure the reputation of a dead person, which carries a two year maximum sentence, 18 U.S.C. 875(d)]. But all these crimes, major and minor alike, are swept into the definition of "predicate gang crimes" of "criminal street gangs," as if America's cities were threatened by teenagers driving through neighborhoods, and shouting libels about persons who have passed away.

Significantly, the "predicate gang crime" can also include any gambling offense. It is a federal crime for a person "engaged in the business" of betting (this could include a professional gambler, as well as a bookie) to transmit information by telephone. The offense includes using a telephone (including a modem) to receive information about sporting events.

In the context of federal gun laws, being "engaged in the business" of firearms sales can included a part-time activity, if the activity is for profit, and regular. 18 U.S.C. 921(a)(21). Thus, it is certainly plausible that the "commissioner" of a weekly football pool, who makes a profit on the bets, would violate this statute.

Congress has set a two year maximum penalty for violation of the gambling law. But S. 54 raises the penalty to ten years, and turns every office participant into a member of a "criminal street gang."

(v) Alien offenses.

It is currently illegal to knowingly hire an alien who is not eligible to legally work in the United States. There is a civil penalty of up to $2,000 for violation of this provision. A person engaged in "a pattern" of violating the law may be imprisoned for up to six months for the entire pattern. 18 U.S.C. 1324a.

S. 54 turns a single violation into a "predicate gang crime," with a mandatory sentence of at least 10 years in prison.

S. 54 also makes smuggling of certain aliens into a predicate gang crime. Alien smuggling is, under certain circumstances, something that gangs actually do. But there are already strict laws against alien smuggling. Existing sentencing guidelines already impose extra penalties for smuggling aliens in connection with other crimes, as part of a conspiracy. To the extent that there are problems with those laws, the problems should be addressed directly, though the alien laws themselves.

(B). State offenses.

This subparagraph is short, but it is startling. Having turned a litany of federal offenses into predicate federal gang crimes, the bill then does the same for state offenses. A "predicate gang offense" can include "a state offense involving conduct that would constitute an offense under subparagraph (A) [the list of federal offenses] if Federal jurisdiction existed or had been exercised."

All of the federal crimes discussed so far have some kind of jurisdictional limit; these limits reflect Congressional recognition that the Constitution does not grant Congress unlimited power over criminal law, and that respect for federalism requires Congress not to intrude itself too far into state criminal law. Yet S. 54 abolishes these jurisdictional limits.

(C) Conspiracy or solicitation.

Finally, S. 54 makes any conspiracy or solicitation to commit any of the "predicate gang crimes" into a "predicate gang crime" itself. Thus, saying "Son, let's just go target shooting without that stupid note" becomes a "predicate gang crime"--even if the father and son never go shooting.

PENALTIES

The penalties under section 3 of S.54 are draconian. Anyone engaging in "a pattern of criminal gang activity" (two "predicate gang crimes" in a five year period) is to be imprisoned for ten years to life. Trivial firearms offenses, minor gambling crimes, petty assaults, and many other crimes for which the current penalty is usually probation or a few months of prison time are turned into ten-year crimes. By turning Gun Control Act violations into "gang" crimes, S. 54 turns misdemeanors into ten-year felonies, and makes operation of a firearms store legally perilous in the extreme.

In addition to the ten year prison term, a person convicted under S. 54 is subject to the draconian federal forfeiture laws. (21 U.S.C. 853). This statute is heedless of due process, and allows forfeiture of almost all property in some way associated with the crime. While the Firearms Owners Protection Act imposed some limitations on the forfeiture of firearms for Gun Control Act regulatory offenses, S. 54 would allow forfeiture of an entire gun store and its entire inventory.

SECTION 4. USE OF ANY FACILITY IN INTERSTATE OR FOREIGN COMMERCE.

This section modifies an existing statute which makes it illegal to use interstate commerce facilities for certain crimes. (18 U.S.C. 1952.)

The statute applies to anyone who "travels in interstate or foreign commerce" or who uses "the mail or any facility in interstate or foreign commerce" to commit "an unlawful activity" (as defined by the statute). One need not actually cross state lines to commit the offense; a bus station is a "facility" in interstate commerce, even if one just takes the bus cross-town.

S. 54 adds "predicate gang crime"--as broadly defined by section 3 of S. 54--to the list of covered offense.

S. 54 adds other offenses to the list of "unlawful activities" covered by the statute. These activities include a variety of ordinary local crimes (such as robbery, burglary, and possession of stolen property) as well as "illegally trafficking in firearms," an offense for which gun store owners who have acted in good faith are sometimes convicted. (The offense also includes giving a .22 rifle to your sister-in-law for Christmas, even though you know she smoked marijuana on Halloween.) The offenses specifically added by S. 54 need not be "predicate gang crimes." A single offense will suffice.

The punishment for 18 U.S.C. 1952 is currently set at offense level 6 by the U.S. Sentencing Commission; assuming that there are no aggravating or mitigating factors, the presumptive sentence is six months or less. The judge may choose to impose no prison time at all.

S. 54 would move the offense level up to level 12, which requires a sentence of 10 to 16 months. For a crime of violence (which includes any violence, no matter how slight, against persons or property), the offense level is moved to 24, for a presumptive sentence of 51 to 63 months.

Under existing Sentencing Guidelines, if the underlying crime, such as arson, has a heavier penalty, then the base level for that crime is used, rather than the base level for 18 U.S.C. 1952. Thus, the effect of S. 54's increased severity falls entirely on minor offenders. If the underlying crime really is serious, then the base level for the underlying crime is used; the increased penalties for 18 U.S.C. 1952 would be irrelevant. But if the crime is minor (i.e. the "crime of violence" of tipping over an outhouse), then S. 54 requires a 51 month sentence, in a situation that might have called only for probation.

SECTION 5. RECRUITMENT OF GANG MEMBERS

Having defined "criminal street gang" broadly enough to include an office football pool, a gun store, or a hunting club, S. 54 then adds a four year mandatory sentence for recruiting a minor into a "criminal street gang," and a one year mandatory sentence for recruiting an adult.

The section imposes a poorly drafted federal solution onto something which is a state and local, not a federal, issue. To whatever extent actual gang recruitment is a legitimate subject of federal legislation, the topic can be adequately addressed through existing conspiracy and solicitation laws, or refinement of those laws.

In other words, recruiting someone into an organization for criminal purposes is already a crime. Merely recruiting someone into an organization for non-criminal purposes should not be a crime. Creating such a crime might well be found to violate the First Amendment's guarantee of freedom of association.

SECTION 6. FIREARMS AND RICO: THE METZENBAUM LEGACY

This section takes the "recruitment" offense from section 5, and turns it into a RICO predicate.

S. 54 also revives legislation sponsored in 1988 by Senator Howard Metzenbaum (one of the most energetic foes of the Second Amendment ever to serve in the United States Senate): turning every violation of the Gun Control Act (including a conspiracy to violate) into a RICO predicate offense.

Of the many anti-gun provisions in this bill, section 6 is the most important. The RICO statute is one of the most powerful in the entire federal code. RICO prosecutors are granted enormous powers; forfeiture provisions are heavily weighted in favor of the government; sentences run up to twenty years. The Attorney General is granted sweeping subpoena power to investigate potential RICO violations. And private plaintiffs are granted extensive rights to sue, to obtain broad injunctions, and to recover attorney fees.

And S. 54 turns even the tiniest violation of federal gun laws into a RICO predicate. Section S. 54 is a dream-come-true for anti-gun lawyers determined to destroy firearms manufacturers, wholesalers, and retailers through litigation. Indeed, even individual gun owners could be sued by anti-gun groups.

Section 7. PROHIBITIONS RELATED TO FIREARMS

Currently, federal law imposes an unworkable, inappropriate ban on the possession of handguns by minors. 18 U.S.C. 922(x). The conditions under which minors should possess handguns ought properly to be set by each state, taking into account the conditions in each state. Rules that might make sense in Manhattan might to inappropriate for Montana.

There are some exceptions allowing juveniles to possess handguns while ranching or farming, or engaged in lawful target shooting or hunting. But even then, the juvenile must have prior written permission from her parents, and must carry that permission at all times with her while in possession of the handgun.

It would be a mistake to think that teenagers helping on their parents' ranches and farms are actually complying with this silly statute. On the ranch, they do not carry around prior written permission. Off the ranch, they may carry a handgun in their pickup truck for protection while driving on isolated rural roads at night, as people in their family have for many generations. It is doubtful that most farmers and ranchers even know of the federal statute.

Currently, federal law provides a penalty up to one year for an adult who violates the statute, and no penalty for the juvenile. S. 54 imposes a mandatory sentence of at least one year on adults and on juveniles aged 14 or older.

If there something to be gained by sending teenage farmers ranchers and their parents to federal prison for a year, it is hard to discern. If there is no intent to imprison farm and ranch children, then there is no justification for a mandatory prison sentence.

SECTION 8. AMENDMENT OF SENTENCING GUIDELINES WITH RESPECT TO BODY ARMOR

This section requires at least a two-level increase in sentencing levels for any crime in which the defendant used body armor. A two-level increase can add as much as 36 months to a defendant's sentence.

There is no requirement that the defendant's "use" be in conjunction with a crime of violence, or be for any type of offensive purpose. The enhancement would apply to a persons who collects cash for illegal sports betting, and sometimes wears body armor, simply because he is afraid of being robbed.

Similarly, many gun store owners and employees wear body armor, to protect themselves from robbery. Thus, they are "using" (wearing) body armor when they "perpetrate" any of the many possible paperwork violations of the federal gun laws. The two-level sentence enhancement could easily take a gun store owner's paperwork violation from a sentencing range in which prison is optional into a range requiring a year or more in prison.

There is also no requirement that the defendant actually wear the body armor; simple "use" is sufficient. A divided Supreme Court has ruled that the federal sentence enhancement (30 years) for "use" of a machine gun in a crime can include "using" the gun by trading it for contraband. Similarly, non-clothing of "use" body armor--such as using it to pay a gambling debt--would trigger the sentence enhancement.

Reflecting a view of law enforcement that would have horrified the framers of the Constitution, the bill grants a special exemption from the body armor sentencing enhancement: the exemption applies only to law enforcement officers who while "acting under color of the authority" of law enforcement, "violate the civil rights of a person."

In other words, police officers who wear body armor while robbing drug dealers, prostitutes, and gambling operations are immune from the sentencing enhancement. So are police officers who rape, rob, or murder while on the job.

The idea that deliberate violations of civil rights--including the perpetration of major violent felonies--by law enforcement officers ought to receive a special immunity from prosecution would have appalled the Congresses that ratified the Bill of Rights and the Fourteenth Amendment.

Law enforcement officers do, of course, often have a serious need to wear body armor. But so do other persons, such as security guards, or persons who live in dangerous neighborhoods. Law enforcement officers--like security officers and persons who live in dangerous neighborhoods--are not supposed to use their body armor to assist the perpetration of violent crimes. Law enforcement is supposed to uphold the rule of law, not to be exempt from the law. The special exemption for crimes perpetrated by law enforcement personnel is an insult to the rule of law.

GENERAL DISCUSSION

S. 54 is not the type of bill which could become a good bill through revised drafting. Simply put, S. 54 addresses crimes the overwhelming majority of which have no place in the federal criminal law. To the extent that S. 54 relates to legitimate federal powers, all things which it criminalizes are already federal crimes. S. 54 therefore makes no legitimate contribution to the federal criminal code.

The sponsors of this legislation might note that they are concerned about actual gang violence, and not about myriad non-violent crimes discussed in this testimony. But the sponsors' intent is no defense at all to the application of this bill as written; if enacted, the bill will be applied as written.

It is plain beyond doubt that Congress never contemplated abortion protestors when enacting the RICO statutes. But prosecutors do not enforce according to the motives of Congress; they enforce according to the literal text of the law. And because of the literal text of the law, Sammy Weaver, Vicki Weaver, and William F. Degan are dead as the result of a federal law which makes it a felony just to possess--without any violent purpose--a shotgun whose barrel is too short. Nicole Richardson is serving a ten-year federal prison term just for answering the phone, and telling an undercover federal agent where her boyfriend (a drug dealer) could be found.

Especially when prosecutors can earn notches on their belts by winning convictions for long mandatory sentences, laws are applied as written. As a former appellate prosecutor, I know that most prosecutors push written statute as far as the language can possibly go. Families Against Mandatory Minimums can supply hundreds of horror stories of harsh federal laws being applied just as written, against minor offenders.

Significantly, S. 54 appropriates 100 million dollars for extra prosecutors. (Twenty million a year for five years.) All of the underlying offenses which are actually real gang crimes are already being fully prosecuted. There are no state or federal prosecutors in this country who are going soft on gang murders, gang arsons, and the like. So at least some of the new prosecutors will necessarily have to look for "new" offenses to justify their funding.

OVER-FEDERALIZATION

Former Attorney General Edwin Meese writes:

In recent years, two tragic events have fundamentally changed the way many Americans view federal law-enforcement agencies and jeopardized public confidence in the federal government itself....

Since Ruby Ridge...Even those normally supportive of the police ask: Should the federal government have risked this loss of life and expended $10 million to capture a hermit whose only alleged crime was selling two sawed-off shotguns to an undercover federal agent?...

After summarizing Waco, Attorney General Meese wrote:

Both these tragedies are the direct result of federal jurisdiction in crimes once considered wholly within the province of state and local police agencies. In neither incident did the underlying crime involve interstate activity or pose a threat to the federal government. Without the federalization of law regulating firearms, a matter left to the states during most of our country's history, neither the BATF or FBI would have had jurisdiction at Ruby Ridge and Waco, and any law-enforcement would have been handled locally, if at all....

Federal law-enforcement authorities are not as attuned to the priorities and customs of local communities as state and local law enforcement. In the Ruby Ridge tragedy, for example, would the local Idaho authorities have tried to apprehend Weaver in such an aggressive fashion?...More fundamentally, would Idaho officials have cared about two sawed-off shotguns? In the Waco situation, would the local sheriff's department have stormed the compound, or instead have waited to arrest David Koresh when he ventured into town for supplies, as he did frequently?

(Edwin Meese, III, and Rhett DeHart, "How Washington Subverts Your Local Sheriff," Policy Review, Jan./Feb. 1996.)

S. 54 aggravates the problems that led to Waco and Ruby Ridge. As a "second order" law, it adds a second layer of federal control to a group of offenses which for the most part have no place in the federal statute books. The extreme mandatory sentences for minor offenses will not only cause injustice to many individuals, but will also further reduce the already low level of respect many Americans have for the federal government.

The men who created our Constitution knew better.

The practical benefits of decentralized law enforcement were well known to the creators of our Constitution. The Constitution specifically authorizes federal enforcement of only three types of laws, all of which involve uniquely federal concerns. The first authorized federal criminal law enforcement is based on the Congressional power "To provide for the punishment of counterfeiting the securities and current coin of the United States." The counterfeiting enforcement power immediately follows the delegation of Congressional power "To coin money, regulate the value thereof, and of foreign coin...." U.S. Const., Art. I, sect. 8.

The second Congressional criminal power involves the power "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." The third is that "Congress shall have Power to declare Punishment of Treason." Although currency, treason, and the high seas clearly involve areas of federal, and not state concern, it is notable that, even in those cases, the authors of the Constitution felt a need specifically to authorize Congressional law enforcement regarding these matters.

In addition to the enumerated federal criminal powers, it is possible to infer some additional power. For example, Congress is given authority to declare uniform rules of bankruptcy; federal law does and should continue to punish bankruptcy fraud, even when perpetrated within a single state. Congressional power over federal property implies the authority to create penalties for destruction of federal property.

While the body of the Constitution grants only narrow criminal law enforcement powers to the federal government, the Bill of Rights, in the Tenth Amendment, specifically reserves to the states all powers not granted to the federal government. (The Tenth Amendment problems which pervade S. 54 are not cured because some local law enforcement officials, blind or heedless to the long-term threat of the erosion of state autonomy--eagerly anticipate near-term use of federal resources.)

Even the Federalist Papers, which were, after all, an argument for increased federal power, made it clear that criminal law enforcement would not come under the federal sphere under the new Constitution. James Madison wrote that federal powers

"will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce....The powers reserved to the several states will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state."

Federalist no. 45.

Likewise, Alexander Hamilton, the most determined nationalist of his era, explained that state governments, not the federal government, would have the power of law enforcement, and that power would play a major role in assuring that the states were not overwhelmed by the federal government:

The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations and which will form so many rivulets of influence, running through every part of the society, cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.

There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment....This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

Federalist no. 51.

In contrast to the Constitutional system created by Madison, Hamilton, and the other founders, and ratified by the American people, an entirely different system has come into being over the course of this century. The enumerated powers of Congress "to lay and collect taxes" and "To regulate Commerce...among the several States" have been turned by specious judicial interpretation into Congressional powers over issues that have nothing to do with taxes or with interstate commerce. In the field of criminal law, the result has been a disaster, of which Waco and Ruby Ridge are only the most visible incidents.

S. 54 continues the failed policies of past decades, by using the Congressional power over interstate commerce as pretext for imposing drastic criminal penalties on activities which occur entirely within a state, which are often non-commercial, and whose control is the prerogative of the states.

How can Senators who profess their heartfelt allegiance to the Tenth Amendment override the choices of state legislatures, and send teenage ranchers to prison for a year for not carrying a note from their parents? How can Senators who profess to affection for the Second Amendment support such drastic penalties for so many trivial regulatory offenses? How can Senators who support due process and private property and the Fifth Amendment support widening the already overwide net of forfeitures and RICO for non-violent crimes? And how can Senators who say that they believe in original intent and that they admire conservative judges fail to heed the words of Chief Justice Rehnquist:

the scope of the interstate commerce power "must be considered in the light of our dual system of government and may not be extended so to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

United States v. Lopez (1995).

 

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