Mr. Walsh delivered this testimony before the Subcommittee on
Crime, Terrorism and Homeland Security of the Committee on the
Judiciary of the United States House of Representatives on October
Chairman Scott, Ranking Member Forbes, and members of the
committee and subcommittee, thank you for the opportunity to speak
today on the subject of a proper and effective federal role in the
prevention and elimination of gang-related crime. In my allotted
time, I will touch briefly on two topics: the constitutional
principles of federalism that apply to the criminalization of
gang-related conduct and the effective federal funding of programs
to reduce and prevent gang-related crime.
My name is Brian Walsh, and I am the Senior Legal Research
Fellow in The Heritage Foundation's Center for Legal and Judicial
Studies. I direct Heritage's projects on countering the abuse of
the criminal law and criminal process, particularly at the federal
level. My work also emphasizes constitutional issues, such as the
protection of civil liberties in national security and homeland
Violent street crime committed by gang members is a serious
problem in many states. But turning crimes that are fundamentally
local in nature into federal crimes is not the solution.
Approximately 95 percent of U.S. criminal investigations and
prosecutions are conducted not by federal law enforcement but by
law enforcement at the state and local levels. Unjustified federal
intervention against "gang crime" would detract from the most
effective anti-gang enforcement strategies available to state and
local law enforcement officials, that is, the very same officials
who carry out the vast majority of anti-gang efforts.
The federal government has an important role to play in
combating gang-related crime. But that role is limited by the
Constitution and should be further confined to developing and
funding programs that (1) carry out traditional federal functions,
(2) are carefully crafted and evaluated to ensure they achieve
their stated goals, and (3) include sufficient oversight and
auditing to minimize waste and abuse.
On several occasions in recent Congresses, Members of Congress
have proposed broad bills that attempt to federalize "gang
crime," conduct which, in most instances, is
nothing other than ordinary street crime. Two of the most recent
examples of such legislation--the Gang Abatement and Prevention Act
of 2007 (S. 456), which passed the Senate last month, and a related
bill in the House of Representatives, the Gang Prevention,
Intervention, and Suppression Act (H.R. 3547)--would effectively
transform state-law crimes into federal offenses and dramatically
increase federal penalties for existing federal offenses that the
bills characterize as "gang crimes." The bills also include
hundreds of millions of dollars in spending on new and expanded
gang prevention programs.
The federal criminal provisions in these legislative proposals
would invite serious constitutional challenges. Like their
predecessor bills in the House and the Senate, S. 456 and H.R. 3547
may, in many cases, unconstitutionally attempt to extend Congress's
powers beyond the limits of the Commerce Clause. The bills incorporate boilerplate language
purporting to establish jurisdiction under the Commerce Clause but
nonetheless disregard most of the constitutional structure
underlying the state and federal criminal justice systems.
Although inappropriate at the federal level, some of the bills'
proposals to criminalize or increase penalties for specified
gang-related activities might be good ones if introduced in any
state legislature, where, as constitutional precedent has long
held, criminal law enforcement and crime
prevention have traditionally (and most effectively) been handled.
New York City and Boston in the 1990s and early 2000s demonstrated
that when accountability for law enforcement is increased at the
state and local levels, local police officials and prosecutors can
make impressive gains against crime, including gang-related crime.
By contrast, federalizing authority over crime reduces the
accountability of local officials to the public. Human nature being
what it is, when it is convenient to do so, a significant
percentage of state and local officials can be expected to shift
responsibility or (depending on the circumstances) blame to federal
law enforcement authorities.
Proposed Legislation Runs Afoul of
Recent Supreme Court Precedent
Federal involvement may seem like a good idea whenever some
crime or pattern of criminal activity becomes prevalent in several
states. But the mere existence of the same crimes or types of crime
in multiple states does not alone justify an exercise of federal
criminal law. To warrant federal involvement, an activity must fall
within Congress's constitutionally granted powers. There are
serious reasons to doubt that S. 456 and H.R. 3547 do so.
In 2000, the Supreme Court held that the provision of the
Violence Against Women Act at issue in United States v.
Morrison was unconstitutional. The federal criminal
provisions on which the challenged provision was based exceeded
Congress's commerce-clause power. In the course of reaching this
holding, the Court affirmed that the Constitution places
fundamental limits on the federal legislative power:
Every law enacted by Congress must be based on one or more of
its powers enumerated in the Constitution. "The powers of the
legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written."
This limitation on Congress's power to legislate is neither
arbitrary nor accidental. The Framers crafted it to protect the
American people--including those suspected of criminal
conduct--from the unchecked power of a centralized national
government that would otherwise be all-powerful. As the Court
stated, "This constitutionally mandated division of authority 'was
adopted by the Framers to ensure protection of our fundamental
No power that civil government commonly uses against its
citizens is greater or more prone to abuse than the criminal law
and criminal process. This is a compelling reason for crafting
any new federal criminal law with great care and attention to the
limitations the Constitution places on the legislative power.
S. 456 and H.R. 3547 implicitly acknowledge these limits by
purporting to rely on the Commerce Clause for the assertion of
federal jurisdiction over crimes that are essentially local in
nature. The bills include language purporting to restrict the scope
of their central criminal provisions to conduct and activities that
"occur in or affect interstate or foreign commerce."
But to fall within Congress's power to "regulate
Commerce…among the several States," a problem must not
merely be common to the states; it must be truly interstate in
nature and "substantially affect" interstate commerce.
For this reason, Congress's power under the Commerce Clause does
not include the authority to federalize most non-commercial street
crimes, whether or not they share some minor nexus with interstate
commerce. In short, local, violent crime that is not directed at
interstate commerce--that is, the sort of crime that is at the
heart of most gang-related street crime--is not a proper subject
matter for federal legislation.
Although broader and broader readings of the Commerce Clause
during the latter part of the 20th century permitted the federal
government to regulate more and more economic activity,
the Supreme Court has set limits. The Court rejected recent
attempts to federalize common street crimes, even ones that
have some interstate impact. Yet an expansive (many would say
virtually unlimited) interpretation of the Commerce Clause is still
employed to justify the creation of many new federal crimes. This
expansive interpretation does violence to the original meaning of
the Constitution. As Justice Thomas wrote in a concurring opinion
in United States v. Lopez, if Congress had been given
authority over any and every matter that simply "affects"
interstate commerce, most of Article I, Section 8 would be
superfluous, mere surplusage.
Both S. 456 and H.R. 3547 attempt to take advantage of a
similarly broad and erroneous view of the Commerce Clause by
including statements in their findings sections that "gang crime"
disrupts communities by reducing property values and inhibiting
corporations from transacting business, presumably because safety
concerns make an area less attractive. Viewed in the light of
recent Supreme Court precedent, this sort of lengthy, attenuated
chain of causation is insufficient to establish federal
jurisdiction over local crimes.
In Lopez, the Supreme Court expressly rejected the
government's "costs of crime" and "national productivity"
rationales for asserting federal authority over crime that is
essentially local in nature. The government argued that violent
crime resulting from the possession of firearms in the vicinity of
schools affected interstate commerce by increasing insurance costs
nationwide and by reducing interstate travel to locales affected by
The government further argued that the possession of guns on or
near school grounds threatened educational effectiveness, which
would reduce productivity of students coming from those schools,
which would, in turn, reduce national productivity.
The Court explained that if it were to accept these attenuated
chains of but-for reasoning, the Constitution's limits on
congressional power would be obliterated:
Congress could regulate any activity that it found was related
to the economic productivity of individual citizens: family law
(including marriage, divorce, and child custody), for example.
Under [these] theories... , it is difficult to perceive any
limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been
sovereign. Thus, if we were to accept the Government's arguments,
we are hard pressed to posit any activity by an individual that
Congress is without power to regulate.
Congress's recent proposals to create a new set of federal "gang
crimes" have all raised these same constitutional concerns.
S. 456 and H.R. 3547 have attempted to "cure" this problem by
asserting that gang presence, intimidation, and crimes "directly
and substantially" affect interstate and foreign commerce. But
merely saying so does not make it so, and such language adds little
or nothing to the constitutional analysis.
In sum, even though several of the criminal provisions in S. 456
and H.R. 3547 include language limiting their own application to
criminal street gang activities that "occur in or affect interstate
or foreign commerce," the Supreme Court has held that this sort of
language is not sufficient to bring an act within the scope of
Congress's Commerce power. The regulated act must have more than
some effect on interstate commerce; the effect must be a
substantial one, and the connection between the regulated
act and its substantial effect may not be too attenuated.
In addition to constitutional problems, the bills' extensive and
unfocused list of predicate "gang crimes" is not well tailored to
the most problematic gang activity. The list of predicate offenses
that would give rise to federal gang crime prosecution includes
many non-violent offenses, some of which are already federal
crimes, such as obstruction of justice, tampering with a witness,
misuse of identification documents, and harboring illegal aliens.
Regardless of its unlawfulness, such conduct is not specific to
criminal street gangs or gang-related crime.
The same constitutional concerns that would arise from the
federal criminal provisions in S. 456 and H.R. 3547 do not
generally apply to federal expenditures for gang-related programs,
including those in Chairman Scott's Youth PROMISE Act (Youth Prison
Reduction through Opportunities, Mentoring, Intervention, Support,
and Education Act). Congress's constitutional power to spend
federal funds on programs involving state and local government
agencies is broad and includes the authority to impose conditions
on grant recipients.
There are, however, pragmatic and sound policy considerations to
guide choices among competing proposals for spending programs to
reduce state and local crime. To be a prudent use of funds, any
federal program should be carefully and thoroughly:
- Targeted to perform a traditional federal function;
- Evaluated to determine whether it is achieving stated goals and
the purposes for which it is being funded; and
- Audited to prevent the diversion of funds and other abuses by
In light of these criteria, the best uses of federal funding to
fight gang-related crime include programs to research and promote
so-called evidence-based crime prevention, that is, crime
prevention strategies and methods the effectiveness of which can be
verified empirically. Congress should also fund the enforcement
of existing federal laws that vindicate inherently federal
interests. This should free up state and local resources to be used
to combat local street crime. The federal government is, moreover,
uniquely positioned to promote sharing among the states of
information about gangs and gang members as well as information and
analysis regarding the best law enforcement practices for reducing
and preventing gang-related crime.
Targeted to Perform a Traditional
Although universities, private foundations, and consortiums of
state-government agencies should continue to play a central role in
promoting research and information-sharing on gang-related crime,
the federal government can fulfill an important role in such
efforts. The federal government is well situated to collect and
rigorously analyze whatever information on gang-related crime is
made available by state and local agencies. In addition to
disseminating this basic data and analysis, the federal government
should promote those policies and innovations that have proven
effective in reducing crime. The federal government should help
foster and guide standards for identifying and establishing law
enforcement best practices for combating gang-related crime--while
recognizing that what constitutes best practices may vary by state
One example of a sound federal program is the FBI's National
Gang Intelligence Center (NGIC). Created in 2004, the NGIC is
intended to help federal, state, and local law enforcement
coordinate the collection of intelligence on gangs and then analyze
and share the information. If it fulfills its congressional
mandate, the NGIC should allow law enforcement to identify and
analyze whatever linkages may exist between gang members and gang
activities across the nation.
Other proposals would similarly allow Congress to support the
fight against gang crime without violating federalism principles.
The federal government is well situated to create national
databases on gangs and gang-related crime and to gather and
disseminate crucial information on gang activities and members. The
goal would be to harness the collective knowledge of law
enforcement agencies around the country, paying particular
attention to those gangs or significant gang members that travel or
migrate from state to state. It would be similarly effective and
appropriate for the federal government to fund comprehensive
studies of the effectiveness of crime and delinquency prevention
and intervention strategies. Many states do not have the resources
or multistate data to carry out this type of meta-analysis, and
such information could be a vital resource in choosing appropriate
Congress should also fund increased federal enforcement of
existing laws that are connected to gang-related crime and that
are, by nature, federal. The federal government should fund efforts
to identify illegal aliens who have been convicted of
crimes--including those who are currently in custody--and are thus
subject to immediate deportation. Enforcing these federal laws
would reduce the pool of potential gang members who are on the
streets or in state and local jails and prisons. Currently, state
and local jurisdictions also bear a significant financial burden
for their efforts detaining illegal aliens until federal
immigration officers arrive. Providing federal funding for these
detention services would allow state and local governments to spend
more of their own money on the prevention and abatement of
The U.S. Department of Justice's primary mission is to promote
and protect interests that are fundamentally federal in nature. The
Department's main focus should not be on funding the
responsibilities of state and local governments. Federal funding
levels for law enforcement should reflect these priorities, and
federal funding for state and local law enforcement programs should
not be greater than funding for core federal responsibilities.
The federal government's spending priorities for law enforcement
in the recent past have been out of balance. At the end of the last
decade, for example, some elements of federal funding for law
enforcement were weighted too heavily in favor of funding state and
local law enforcement. The programs administered by the Justice
Department's Office of Justice Programs (OJP) and Office of
Community Oriented Policing Services to fund local police officer
salaries, programs for state and local juvenile justice, and
related programs cost taxpayers approximately $23 billion from FY
1996 through FY 2000. By contrast, Congress appropriated just $1
billion for the Federal Bureau of Investigation's national security
and counterterrorism efforts over this same period. The federal
government is intended under the Constitution to be the predominant
actor in national security investigations and prosecutions.
The state governments are independent sovereigns, and they and
their constituent governments at the local level should generally
be expected to fund and operate their own law enforcement
Crafted and Evaluated to Ensure
Achievement of Stated Goals
Preference for funding should be given to those programs that
are carefully crafted to implement strategies for crime reduction
and crime prevention that have been tested empirically and proven
reliable. Congress should set high standards for measuring
effectiveness. No one other than the administrators of programs
receiving federal grants are well served by standards that are easy
to satisfy, either because the standards are too subjective or
because they are not sufficiently rigorous to produce meaningful
As in any well-run business, such programs must have measurable
results to demonstrate their effectiveness. And the metrics to be
used must be standardized if each grantee's performance is to be
readily compared with the performance of others. The federal
government should also impose meaningful interim benchmarks to
ensure that the gang prevention programs it funds are on target to
meet the goals for which they were funded.
By contrast, programs that are demonstrably ineffective, that
are unproven and unsupported by empirical evidence, or that result
in substantial waste should not be funded. Any such programs that
already exist should be summarily terminated or, at the very least,
should not be given additional funding. Whatever lessons can
reasonably be learned from failed programs should be incorporated
into the design of any new spending program intended to achieve the
same or similar goals.
One current need for gang crime funding is clearly evident: More
research needs to be conducted to develop scientific standards for
effectiveness of gang-crime prevention programs. In 1997, the
Justice Department published a University of Maryland report that
compared evaluations of various federal crime programs.
After observing that many of the federal government's crime
prevention programs as of that date either had been evaluated as
ineffective or had never received any meaningful evaluation at all,
the report concluded, "By scientific standards, there are very few
'programs of proven effectiveness.'" The federal government
thus should emphasize new programs to conduct multiple, independent
research projects to study crime prevention. Studies designed to
develop and test empirical standards should be given priority for
Programs that improperly measure "intermediate effects" instead
of actual prevention should not be funded. The results of
such programs tend to be entirely subjective and incapable of being
repeated. For example, of little value is a
teacher's evaluation that a juvenile's behavior in school
"improved" after attending a course intended to increase his
sociability and decrease his likelihood of committing criminal or
delinquent acts. A subjectively "better" attitude makes little
difference if the student committed actual crimes for which the
program's evaluation criteria did not account. Tracking official
acts of delinquency in and out of school would be a far better
measure of the crime prevention effectiveness of the course.
Carefully Audited to Prevent Abuse by
Any successful crime prevention program requires tight oversight
and auditing controls. Without such controls, fraud and outright
abuse are not the only possibilities. The funds may be used to
supplant current state and local funding, sometimes resulting in
less overall spending on the targeted activity.
Even when there is a federal prohibition against supplanting
state funding, as there was in the federal Community Oriented
Policing Services (COPS) legislation, a lack of federal supervision
may still allow state and local governments to use the funds to pay
existing personnel. This resulted in several COPS-funded
jurisdictions adding no additional police officers, despite
promising to do so as a condition of receiving the federal grant
money. Even worse, some major jurisdictions took
federal grant money for additional officers yet downsized their
state-funded police forces. Similar shortcomings of
the COPS program have been well documented by the media and
Thank you again for the opportunity to address this subject. I
look forward to responding to any questions.
Brian W. Walsh is Senior
Legal Research Fellow in the Center for Legal and Judicial Studies
at The Heritage Foundation.
Although all opinions expressed and any errors
herein are my own, my Heritage colleagues Todd Gaziano, Erica
Little, and David Muhlhausen contributed much to this analysis, and
this testimony is based on papers I co-authored with Erica Little.
E.g., Erica Little & Brian W. Walsh, "The Gang Abatement
and Prevention Act of 2007: A Counterproductive and
Unconstitutional Intrusion into State and Local Responsibilities,"
Heritage Foundation WebMemo No. 1619, Sep. 17, 2007,
available at http://www.heritage.org/Research/Crime/wm1619.cfm.
Edwin Meese III & Robert Moffit, Making
America Safer: What Citizens and Their State and Local Officials
Can Do to Combat Crime xiv (1997).
See, e.g., Gang Prevention &
Effective Deterrence Act of 2005, S. 155, 109th Cong. (2005); Gang
Prevention& Effective Deterrence Act of 2003, S. 1735, 108th
Previous publications by The Heritage
Foundation have addressed the flaws in several of these bills.
E.g., Erica Little & Brian W. Walsh, "Federalizing 'Gang
Crime' Remains Counterproductive and Dangerous," Heritage
Foundation WebMemo No. 1486, June 5, 2007, available
Erica Little and Brian W. Walsh, "Federalizing Gang Crime Is
Counterproductive and Dangerous," Heritage Foundation
WebMemo No. 1221, September 22, 2006, available at http://www.heritage.org/Research/Crime/wm1221.cfm;
Edwin J. Feulner, "Ganging Up on Crime," Heritage Foundation
Commentary, May 19, 2005, available at http://www.heritage.org/Press/Commentary/ed052005a.cfm;
Paul Rosenzweig, "The Gang Act Needs Modification," Heritage
Foundation WebMemo No. 494, May 3, 2004, available at
text of the Commerce Clause states, in pertinent part, that it
grants Congress power "[t]o regulate commerce...among the several
States." U.S. Const. art. I, § 8, cl. 3.
See, e.g., Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 426, 428 (1821) (Marshall, C.J.) (explaining
that Congress has the right to punish violent crimes such as murder
that are committed, for example, in federal facilities, but
Congress has "no general right to punish [crimes] committed within
any of the States"); id. at 428 ("It is clear, that Congress
cannot punish felonies generally . . . ."); accord United
States v. Morrison, 529 U.S. 598, 618 (2000).
U.S. at 601-02 ("In these cases we consider the constitutionality
of 42 U.S.C. §13981, which provides a federal civil remedy for
the victims of gender-motivated violence.").
Id. at 607 (quoting Marbury v. Madison,
5 U.S. (1 Cranch) 137, 176 (1803) (Marshall, C.J.)); accord
United States v. Lopez, 514 U.S. 549, 552 (1995) ("We start with
first principles. The Constitution creates a Federal Government of
enumerated powers."); The Federalist No. 45, at 292-93 (James
Madison) (ClintonRossiter ed., 1961) ("The powers delegated by the
proposed Constitution to the federal government are few and
defined. Those which are to remain in the State governments are
numerous and indefinite.").
Lopez, 514 U.S. at 552 (quoting
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
See Herbert Wechsler, The Challenge
of a Model Penal Code, 65 Harv. L. Rev. 1097, 1098 (1952)
("Whatever view one holds about the penal law, no one will question
its importance in society. This is the law on which men place their
ultimate reliance for protection against all the deepest injuries
that human conduct can inflict on individuals and institutions. By
the same token, penal law governs the strongest force that we
permit official agencies to bring to bear on individuals."
See, e.g., S. 456, 110th Cong. §
101 (2007); H.R. 3547, 110th Cong. § 101 (2007).
The Court reaffirmed in 2000 that the
"regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the states."
Morrison, 529 U.S. at 618. Gonzales v. Raich, 125 S.
Ct. 2195 (2005), is not to the contrary, for the Court in
Raich clearly distinguished both Lopez and
Morrison. E.g., id. at 2209 ("[T]he statutory
challenges at issue in those caseswere markedly different from the
challenge respondents pursue in the case at hand.").
See Lopez, 514 U.S. at 555-56
(surveying the advent and development of the Court's expansionist
view of commerce-clause power starting from the New Deal era).
See generally Morrison, 529
U.S. 598 (striking down § 13981 of the Violence Against Women
Act of 1994 because the predicate crimes the Act created were
beyond Congress's power under the Commerce Clause); Lopez,
514 U.S. 549 (striking down the provision of the federal Gun-Free
School Zones Act of 1990 that made it a federal crime to possess a
firearm in a school zone because the provision exceeded Congress's
See514 U.S. at 589 (Thomas, J.,
See, e.g., Morrison, 529 U.S.
Lopez, 514 U.S. at 564
See Morrison, 529 U.S. at 612-13.
See generally Lawrence W. Sherman et
al., Evidence-Based Crime Prevention (2002) (focusing on a
Justice Department-funded study that considered the effectiveness
of a wide range of federally funded crime-prevention programs).
Lawrence Sherman, Denise Gottfredson, Doris
Mackenzie, John Eck, Peter Rueter, & Shawn Bushway, Preventing Crime: What Works, What Doesn't,
What's Promising(Wash., D.C.: U.S. Dept. of Justice,
Office of Justice Programs, 1997).
See, e.g., Gail A. Wasserman &
Laurie S. Miller, "The Prevention of Serious and Violent Juvenile
Offending," in Serious and Violent Juvenile Offenders:
Risk Factors and Successful Interventions 197-247 (Ralph
Loeber & David P. Farrington, eds., 1998).
For example, audits by the Justice
Department's inspector general indicated that Atlanta, El Paso, and
Sacramento used COPS grants to supplant local funding. See
U.S. Department of Justice, Office of Inspector General, "Office of
Community Oriented Policing Services Grants to the Atlanta,
Georgia, Police Department," Executive Summary, Audit Report
No. GR-40-98-006, April 1998; U.S. Department of Justice, Office of
Inspector General, "Office of Community Oriented Policing Services
Grants to the El Paso Police Department, El Paso, Texas," Executive
Summary, Audit Report No. GR-80-01-013, May 30, 2001; U.S.
Department of Justice, Office of Inspector General, "Office of
Community Oriented Policing Services Grants to the City of
Sacramento Police Department, California," Executive Summary,
Audit Report No. GR-90-98-022, May 1998. For additional
audits of COPS-funded police departments, see U.S.
Department of Justice, Office of the Inspector General, Office of
Community Oriented Policing Services Grant Reports, http://www.usdoj.gov/oig/grants/_cops.htm.
Dallas, Louisville, and Newark actually
reduced their force sizes after receiving federal grants to hire
additional officers. See U.S. Department of Justice,
Office of Inspector General, "Office of Community Oriented Policing
Services Grants to the City of Dallas, Texas, Police Department,"
Executive Summary, Audit Report No. GR-80-00-003, November
1999; U.S. Department of Justice, Office of Inspector General,
"Office of Community Oriented Policing Services Grants to the
Louisville, Kentucky, Police Department," Executive Summary,
Audit Report No. GR-40-01-002, February 2001; U.S.
Department of Justice, Office of Inspector General, "Office of
Community Oriented Policing Services Grants to the Newark, New
Jersey Police Department," Executive Summary, Audit Report
No. GR-70-98-007, June 1998.
See David B. Muhlhausen, "Impact Evaluation of COPS Grants in Large
Cities," Heritage Foundation Center for Data Analysis
Report No. 06-03, May 26, 2006, available at http://www.heritage.org/Research/Crime/cda06-03.cfm
; David B. Muhlhausen, "Why the Bush Administration Is Right on
COPS," Heritage Foundation Backgrounder No. 1647, April 23,
2003, available at http://www.heritage.org/Research/Crime/bg1647.cfm.