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Statements on Introduced Bills and Joint Resolutions - S. 2358

Location: Washington, DC


By Mr. DURBIN (for himself, Mr. LEAHY, Mr. FEINGOLD, and Mr. KENNEDY):

S. 2358. A bill to allow for the prosecution of members of criminal street gangs, and for other purposes; to the Committee on the Judiciary.

Mr. KENNEDY. Mr. President, it's a privilege to join my colleagues Senator DURBIN, Senator LEAHY, and Senator FEINGOLD in introducing this important legislation, the ANTI-GANG Act.

Gang violence is a serious problem in many communities across the nation, and it deserves a serious response by Congress. The key to success is an effective strategy that rejects partisanship and "lock-em-up" sound bites in favor of tough, targeted law enforcement; aggressive steps to take guns out of the hands of criminal gang members and other violent juvenile offenders; and heavy emphasis on prevention programs that discourage gang membership and provide realistic alternatives for at-risk youth.

The past decade saw a dramatic reduction in violent juvenile crime, in large part because of these crime-fighting strategies. Many of us remember the dire "juvenile superpredator" predictions that were common before that reduction took place. In 1996, William Bennett and John Walters wrote that America was a "ticking crime bomb," faced with the "youngest, biggest, and baddest generation" of juvenile offenders that our country had ever known. Fortunately, these predictions were wrong. From 1993 to 2001, arrest rates for violent juvenile crime fell by more than two-thirds. We're still reaping the benefits of this lower crime rate today.

The decrease in crime is explained partly by the sensible measures taken by Congress on gun safety in the early 1990's, including the ban on assault weapons. In 1999, the National Center for Juvenile Justice concluded that all of the increase in homicides by juveniles between the mid-1980's and mid-1990's was firearms-related. The Surgeon General concluded that guns were responsible for both the epidemic in juvenile violence in the late 1980's and the decrease in violence after 1993. "It is now clear," the Surgeon General wrote, "that the violence epidemic was caused largely by an upsurge in the use of firearms by young people. . . . Today's youth violence is less lethal, largely because of a decline in the use of firearms." The current ban on assault weapons is scheduled to expire in September, and given its proven results against crime, it is reckless for anyone to oppose its continuation.

Another factor that contributed to the remarkable decrease in juvenile violent crime was the innovative, cooperative crime-fighting strategy developed in Boston and other communities across the nation. The Boston strategy was neither a "liberal" nor a "conservative" approach. It engaged the entire community, including police and probation officers, clergy and community leaders, and even gang members themselves in a united effort to crack down on gang violence, strengthen after-school prevention programs, and take guns out of the hands of juvenile offenders. This strategy was very successful-juvenile homicides dropped 80 percent from 1990 to 1995-and it succeeded without prosecuting more juveniles as adults, without housing nonviolent juvenile offenders in adult facilities, and without spending huge sums of money on new juvenile facilities.

The call for expanding federal prosecution of juveniles as adults was already controversial in those years when juvenile violent crime was at its peak. It makes no sense today, when juvenile violent crime rates have fallen to historic lows.

Unfortunately, an expansion is exactly what is sought by the supporters of S. 1735, the Gang Prevention and Effective Deterrence Act. Their bill responds to the problem of gang violence in the wrong way. They want the expanded federal prosecution of juveniles as adults. They want to federalize a broad range of street crimes now being prosecuted effectively at the local level. They want to create an unnecessary bureaucratic morass by duplicating law enforcement efforts now taking place on drug trafficking. They support a one-size-fits-all, Washington-knows-best approach to juvenile crime that ignores the achievements of the past decade and will only make the current problem of gang violence worse.

Our bill, the ANTI-GANG Act, avoids the most serious defects of S. 1735 by recognizing, first and foremost, the primary role of state and local law enforcement in responding to violent crime. The American Bar Association and the Judicial Conference have both called on Congress to consider the risks of federalizing offenses that have traditionally been the responsibility of state criminal justice systems. Many of us support the Local Law Enforcement Enhancement Act (S. 966), to deal with hate crimes. It would require the Justice Department to certify the need for federal involvement before commencing federal prosecution of a hate crime. We also oppose the enactment of federal "concealed carry" laws, which would undermine state and local gun-safety laws.

Instead of ignoring the primary role of state and local governments in fighting violent gang crimes in their communities, our ANTI-GANG Act strengthens that role, by giving local law enforcement and prosecutors the resources they need. It authorizes $52 million for cooperative prevention, investigation, and prosecution of gang crimes. It authorizes $20 million for technology, equipment, and training, so that state and local sheriffs, police agencies, and prosecutors can improve their identification of gang members and maintain databases with information to facilitate coordination among law enforcement and prosecutors. It authorizes $60 million for the protecting and relocation of witnesses and victims of gang crimes, and $40 million for grants for gang prevention, research, and intervention services.

The resources in our bill for witness relocation and protection are particularly important. At a Judiciary Committee hearing last September, state and local prosecutors specifically asked for Congress's help in protecting witnesses of gang crimes. Our bill responds to this need by authorizing $60 million in assistance. By contrast, the most recently revised version of S. 1735 authorizes only $12 million.

In addition, our bill amends the current law on governing federal witness relocation and protection to make clear that the Attorney General can use these provisions to support witnesses in state gang, drug, and homicide cases. We also allow states to obtain the temporary protection of witnesses in gang cases, without any requirement of reimbursement. The current complex reimbursement procedures deter state and local prosecutors from obtaining witness protection assistance from the federal government, even in emergencies. Our bill offers needed relief to state prosecutors undertaking difficult prosecutions of gang offenders, but no such relief is included in S. 1735.

The ANTI-GANG Act respects the primary role of state and local governments in fighting street crime, but it also recognizes that violent gangs can be a substantial impact on federal interests. According to the most recent National Drug Threat Assessment, criminal street gangs are responsible for the distribution of much of the cocaine, methamphetamine, heroin, and other illegal drugs being distributed in communities throughout the United States. Gang activity interferes with lawful commerce and undermines the freedom and security of entire communities.

The current provision on criminal street gangs in federal law is a seldom-used penalty enhancement. To address these legitimate federal interests, the ANTI-GANG Act replaces that provision with a stronger set of measures criminalizing participation in criminal street gangs, recruitment and retention of gang members, and witness intimidation. It also increases penalties for gang members who target minors for recruitment. It targets gang violence and gang crimes in a sensible way, avoiding the confusing and counterproductive approach taken in S. 1735. Before any federal prosecution can take place under our bill, a high-level representative from the Justice Department, after consultation with state and local prosecutors, must certify that the federal prosecution is in the public interest and necessary to achieve substantial justice.

The Act strengthens the ability of prosecutors at all levels-federal, state and local-to prosecute violent street gangs, and it does so without increasing any mandatory minimum sentences or unnecessarily expanding the federal death penalty to include state murder offenses.

An increasing number of judges, prosecutors, defense lawyers, and other criminal justice authorities now agree that mandatory minimum sentences are, in the words of Justice Anthony Kennedy, "unfair, unjust, and unwise." They are inconsistent with and undermine the sentencing guidelines that Congress established in the Sentencing Reform Act of 1984. The supporters of S. 1735 have commendably removed some of the mandatory sentencing provisions in their original bill, but even a single increased mandatory minimum is counterproductive and unjustified.

The ANTI-GANG Act also requires the General Accounting Office to conduct a comprehensive study and report on the current treatment of juveniles by states and local governments and the capability of the Bureau of Prisons and other parts of the federal criminal justice system to take on the additional cases that would result from an expansion of the federal prosecutions of juvenile offenders as adults. This report will enable Congress to make a better informed decision on this criminal issue.

Finally, the Act encourages the recruitment and retention of highly-qualified prosecutors and public defenders by establishing a student loan forgiveness program modeled on the current program for federal employees. According to the National District Attorneys Association, this provision "would allow prosecutors to relieve the crushing burden of student loans that now cause so many young attorneys to abandon public service." The provision is also strongly supported by the National Legal Aid and Defender Association and the American Council of Chief Defenders.

I commend my colleagues for their leadership in developing this important legislation to protect American communities from gang violence without undermining fundamental principles of fairness and federal-state relations. I urge the Senate to approve it.

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