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House ‘Gangâ€TM Bill Criticized by Youth Advocates

by Michelle Chen

As precariously-worded “anti-gang” legislation moves through Congress, critics say its definition of “gang member,” ham-fisted national focus and conventional lock-’em-up approach are counterproductive.

May 12, 2005 – Claiming to be cracking down on a crime epidemic, the House of Representatives passed legislation yesterday that would dramatically expand federal jurisdiction over so-called "gang crimes." If enacted as law, the bill would raise minimum sentencing guidelines for a wide range of offenses, subject more youth to the adult court and prison systems, and provide millions of federal dollars for anti-gang law enforcement measures.

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The Gang Deterrence and Community Protection Act, sponsored by Representative Randy Forbes (R-Virginia) and passed by a 279 to 144 margin, sets as its target any "formal or informal group or association of three or more individuals, who commit two or more gang crimes," at least one of which is categorized as "violent," according to definitions in the legislation.

The bill would establish a minimum ten-year prison sentence for all "gang crimes" and a minimum twenty-year sentence for gang-related assaults that cause "serious bodily injury." It would also make any gang crime resulting in a death -- even if unintentional -- eligible for capital punishment.

Civil rights groups contend that the legislation would erode the rights of youth in the court system, exacerbate longstanding racial inequalities in the criminal justice system, and in general, neither effectively deter gang activity nor protect communities.

Blurred Sentencing Guidelines

One of the most controversial provisions of the bill would grant prosecutors the authority to charge 16- and 17-year-old defendants as adults under federal law, without any opportunity for judicial review.

Civil liberties groups are alarmed that the ambiguous language of the legislation would sweep many less serious crimes into federal jurisdiction, imposing stricter sentences than otherwise would have been mandated in juvenile or state courts.

The bill’s definition of a "gang" offense encompasses an array of crimes that could technically include resisting arrest, drug dealing and immigrant smuggling. Three or more individuals who commit designated "gang" offenses are considered gang members, even if they do not identify themselves as such. Critics say that Congress is seeking to implement this blanket definition of gang activity in order to create a new category of offenses subject to draconian federal penalties.

Mary Price, general counsel with the advocacy group Families Against Mandatory Minimums, believes the legislation is a reaction by conservative lawmakers to the Supreme Court’s recent ruling that mandatory minimums, while not completely unconstitutional, were not legally binding on judges. In order to compensate for the diminished influence of federal mandatory minimum policies on sentencing decisions, Price asserts, conservatives have sought "to load down crime bills" with more severe sentencing guidelines.

One of the most controversial provisions of the bill would grant prosecutors, in felony cases involving a legally defined "crime of violence," the authority to charge 16- and 17-year-old defendants as adults under federal law, without any opportunity for judicial review. The bill’s expanded definition of "violent crime" includes drug-related offenses that may not actually involve physical harm.

Organizations that monitor the criminal justice system argue that the bill’s alarmist rhetoric is more a product of political hype than of an intensifying public safety threat.

Opponents of the bill say that unchecked prosecutorial discretion over the transfer of youth to adult court -- a legal mechanism already in place in fourteen states -- would potentially expose more children to federal mandatory minimum sentences and incarceration in adult facilities. Moreover, they argue, this process contradicts ample evidence that treating juvenile delinquents like adult criminals is counterproductive for both youth and the criminal justice system.

During the 1990s, most state governments enacted laws to facilitate the transfer of youth out of juvenile courts and into the mainstream criminal system. By 2003, approximately 9,500 children were languishing in adult jails or prisons, most of them convicted or awaiting trial as adults. According to a 1998 Department of Justice survey of roughly 7,100 children charged as adults for felonies, nearly 80 percent were black or Hispanic, and those sentenced to incarceration served an average of 90 months.

The Center for Policy Alternatives, a liberal research group, reported that compared with youth in juvenile facilities, youth in adult facilities are eight times more likely to commit suicide and much more likely to become victims of both sexual and physical assault.

Price believes that the youth transfer provision endangers court-involved youth by undermining the role of the judge in protecting the rights of the child in an increasingly unforgiving penal system. Under this statute, she said, "sentencing power [would be] in the hands of the prosecutors, for all intents and purposes."

Juvenile justice advocates believe the federal government should follow the example of local jurisdictions across the country that have recently repealed harsh sentencing laws in favor of supportive, treatment-based approaches.


Hard Evidence or Hype?

The text of the Gang Deterrence Act claims that as thousands of gangs roam throughout the country, "law-abiding members of communities are prisoners in their own homes in fear of being caught in the cross-fire of gang violence."

But organizations that monitor the criminal justice system argue that the bill’s alarmist rhetoric is more a product of political hype than of an intensifying public safety threat.

"We’re kind of drumming up a new boogeyman, and that’s gangs," said Jason Ziedenberg, executive director of the Justice Policy Institute, a think tank focused on incarceration issues.

Much of the concern over elevating nationwide gang activity, Ziedenberg noted, is related to growing community perceptions of the prevalence of gangs, which are not necessarily tied to actual crime rates.

Even the most recent Justice Department survey of gang activity, which portrays gang crime as a major national problem, acknowledges, "The estimated number of gang members between 1996 and 2002 decreased 14 percent, and the estimated number of jurisdictions experiencing gang problems decreased 32 percent."

In general, violent crime nationwide has declined dramatically over the last decade.

Ziedenberg believes that although some communities are truly suffering from gang-related crime, "the issue is nationalizing it, saying that it’s happening everywhere, and treating every community as if it were the same."

Before launching a program for federal intervention, said Zeidenberg, lawmakers should ask the critical question: "Is this a series of local problems that can be dealt with through local resources, or is this really the national problem it’s being hyped up to be?"

Opponents of the bill also chafe at what they see as racial bias in the legislation. The main criminal case study cited in the Act is MS-13, described as "a violent gang comprised of alien criminals from El Salvador." Recent media coverage of MS-13 has also suggested that the group is at the helm of a new crime wave. In March, Newsweek called the group "the fastest-growing, most violent and least understood of the nation's street gangs -- in part because US law enforcement has not been watching as closely as it might have."

According to activists concerned with the treatment of minorities in the criminal justice process, these statements reveal prejudices that color the government’s perception of gang crime and suggest that the bill would deepen the inequalities currently plaguing the system.

Blacks and Hispanics are already heavily over-represented in the prison population as well as the court process. Government statistics indicate that blacks and Hispanics, who together make up less than 30 percent of the general population, have constituted roughly 60 percent of the expanding prison population since the mid-1990s, and accounted for nearly two-thirds of all federal convictions in 2003.

The US Sentencing Commission reported to Congress that in 1999, blacks and Hispanics each comprised nearly 40 percent of the total population subjected to federal mandatory minimum sentencing.

Angela Arboleda, a civil rights policy analyst with the National Council of La Raza, a political organization representing Hispanic communities, said that amid the "media frenzy" over gang crime, "there is really no talk in Capitol Hill about who this bill targets."

Arboleda predicted that broadening federal crime policy through the Gang Deterrence law "will carve out a brand new category, a brand new excuse, for more young men of color to be incarcerated."


Critics Call for Community Solutions, Not Prisons

The Congressional Budget Office projects that over the next five years, the Gang Deterrence bill would authorize nearly $80 million per year for hiring prosecutors and developing law enforcement programs. The stiffer sentences built into the law, which, by 2010, are expecting to pump 900 new prisoners into the federal prison population annually, would cost an additional $62 million over five years.

Though community advocates acknowledge that the government should work toward solutions to the gang issue, they believe that the funds earmarked for punishment and police, along with the estimated $24,000 allocated for each new convict incarcerated under the law, would be more wisely spent on intervention and deterrence programs that offer youth a way out of trouble.

Marsha Levick, legal director of the Juvenile Law Center, a national children’s rights organization, argued that "safety issues, whether we’re looking at it from the perspective of the youth, or the community in which they live, where they’ll be returned to, are really not met by this kind of legislation."

The legislature’s fixation on punishment, argue critics, flouts evidence that the most effective way to direct youth away from gangs is investment in proactive programs that provide opportunities for young people to connect with their communities and advance themselves.

The Latin American Youth Center, a grassroots community group in the District of Columbia, has stemmed local gang-driven violent crime by drawing gang members and other at-risk youth into job training and educational initiatives. Arboleda cited the project as an example of how communities can successfully respond to gang crime problems outside of the conventional law enforcement system. "NCLR and the Latino community -- we too want to do something about gang violence," she explained, "except that our approach is more comprehensive."

Research on the outcomes of family-based treatment programs similarly shows that the re-arrest rate of young people who engaged in family counseling was 50 percent lower than those who did not receive therapy.

Tim Briceland-Betts, legislative counsel with the Child Welfare League of America, a child advocacy organization, argued that communities dealing with gang violence should not look to prosecuting youth in adult courts as a remedy. "The evidence is pretty clear that it not only does not reduce crime; it has just the opposite effect," he said.

Some studies suggest that minors shuttled into the adult criminal justice system are more likely to commit crimes after they are released. The Florida Department of Juvenile Justice, for instance, reported in 2002 that 37 percent of youth offenders processed as juveniles committed a felony after release, in contrast to a 49 percent recidivism rate in a comparison group of children transferred to adult courts.

Rachel King, an attorney with the American Civil Liberties Union’s Capital Punishment Project, said that with this legislation, the federal government has chosen to be "tough on crime as opposed to being smart on crime."

"It seems like with crime policy," King remarked, "it’s too complicated in our media culture to really have a discussion about it." So politicians, she said, tend to promote policies that can quell public anxieties "in a quick sound bite," overlooking more nuanced, long-term solutions.

Juvenile justice advocates believe the federal government should follow the example of local jurisdictions across the country that have recently repealed harsh sentencing laws in favor of supportive, treatment-based approaches.

Congress, said Levick, should direct funds toward empowering young people who have cycled through the system "with the competencies that they need to reintegrate successfully back into the communities: education, treatment, job training, life skills … Those are things that we need to be paying attention to, if we want to curb youth crime going forward."

According to Ziedenberg of the Justice Policy Institute, the disturbing irony of federal crime policy is that lawmakers, while pouring money into punishing young people for breaking the law, have drained resources that help the same population avoid criminal behavior.

Medicaid, one of the key federal programs for the treatment and rehabilitation of troubled youth, is facing a $10 billion cut over the next five years in the pending 2006 budget legislation.

"They’re really investing in things that are going to fill up prisons," Ziedenberg observed, "and cutting programs that might keep people out of prison."

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The NewStandard ceased publishing on April 27, 2007.

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Michelle Chen is a staff journalist.

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