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WebMemo #494 on Crime

May 3, 2004

The Gang Act Needs Modification

By

The Senate Judiciary Committee is presently considering the Gang Prevention and Effective Deterrence Act of 2004 (S.1735). The bill boasts a remarkable coalition of co-sponsors from all sides of the political spectrum, from Senators Grassley and Hatch to Senators Schumer and Feinstein. And the bill addresses a real and persistent problem: the growth of youth gangs in American cities. The initiative is laudable, but as it is framed, the Act would continue the dangerous trend toward the federalization of local crime and the substitution of federal resources for state resources. Congress should reconsider several provisions that would push local crimes into the federal jurisdiction.

 

A Pernicious Trend
When the Constitution was framed, it recognized only three federal crimes: piracy, treason, and counterfeiting. By 1999, when the American Bar Association studied the subject, it found more than 3,000 separate federal criminal provisions, linked to as many as 300,000 individual regulatory provisions. Of those 3,000 federal crimes, more than 40 percent had been adopted since 1970.

And the trend has worsened. A study completed this year by Professor John Baker of Louisiana State University suggests that the current log of federal crimes now exceeds 4,000. And while many of these are meaningless (e.g., the prohibition on falsely presenting oneself as a member of the 4-H club), others have real consequences.

The most pernicious of these consequences is the misallocation of scarce federal resources. The FBI now investigates too many crimes that are as well (if not better) handled by state and local law enforcement authorities that have a much better sense of the criminal conditions in their communities.

Equally pernicious is the perpetuation of the myth that the federal system is inherently superior to state law enforcement and can achieve better results. In truth, the federalization of a state crime is often little more than a political fig-leaf, so that Congress can say that it has "dealt with the problem" without having actually done anything, except for allowing the possibility of selective federal prosecution-itself a potentially serious concern. The reality is that the federalization of crime undermines the accountability of state and local law enforcement officials and prosecutors, who can point the finger at failed federal enforcement. Undermining local officials' responsibility for preventing crime (even a little) has serious, perverse effects in the overall crime-fighting enterprise.

 

The Consequences
Against this backdrop, two provisions of S.1735 are especially problematic. The first is a provision (Section 201) that would effectively turn all double homicides into federal crimes. This section would make it a federal crime for an individual to commit a murder, travel between states, and then commit a second murder. Traditionally, murder has been the subject of state and local police enforcement. The proscription of murder is a core function of the state police power, reserved to the states by the Constitution. Local law enforcement has a well-developed expertise, based upon more than 200 years of practice, in investigating and solving homicides.

Section 201 is directed at individuals like John Mohammed, the Washington, D.C., sniper who committed multiple murders and crossed state lines in doing so.

But has the state system failed? Were Virginia and Maryland somehow unable to deal with Muhammad's case? Providing another venue for the prosecution of crimes like Muhammad's is unnecessary and, in a real sense, counterproductive. Federalization of state crimes will cause our state law enforcement system to atrophy from disregard or to become an unprofessional adjunct of a federal police force-exactly the wrong result.

The other problematic provision, Section 206, would expand the general definition of a crime of violence in 18 USC sec. 16 to include any felony offense that "by its nature, involves a substantial risk of . . . injury against the person or property of another." Almost every crime involves a risk of injury to person or property-that is the very nature of crime. To expand the definition of a crime of violence in this way would, in effect, expand this narrow category to encompass all crime. Under this new definition, drug sales, which surely risk injury to another, would be crimes of violence. So too would be many health, safety, and environmental offenses. Indeed, the definition might be interpreted to include all economic crimes, including theft, if "injury" to property includes deprivation of property.

The issue is not merely one of semantics. Section 16 is a trigger for a host of other federal of consequences. If one is convicted of a crime of violence he or she could be, for example, subject to deportation. Indeed, the impetus behind Section 206 is probably a desire to expand the number of law-breaking non-citizens who could be subject to deportation. In addition to deportation, though, falling within the Section 16 definition brings with it other consequences: enhanced sentencing under the federal sentencing guidelines; potential federal money laundering charges, extradition, and restitution; and, if convicted, inclusion of a DNA profile in the National DNA database. In short, the Section 16 definition of a crime of violence is an important gatekeeper in federal law, and this section would make almost every federal crime a crime of violence.

We yield to no one in our distaste for juvenile crime. And we yield to no one in our abhorrence of crimes of violence. But to conflate that category with all economic crime and simultaneously federalize a wide swath of state crime simply goes too far. Before Congress adopts S.1735, it should more carefully consider the implications of its actions and modify the bill to avoid the over-federalization of state criminal law.

Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.

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