GOING GANGBUSTERS
New federal gang legislation will increase death penalty crimes, possibly for juveniles
By Annette Stark
New federal gang legislation will increase death penalty crimes, possibly for juveniles
By Annette Stark
If the House of Representatives has its way, a lot of inner-city kids will soon be receiving 30 to life - instead of a second chance. Many others will be sent to death row. On May 11, the House passed the trigger-happy "Gangbuster" bill, or Gang Deterrence and Community Protection Act of 2005 (HR 1279), which federalizes street gang crime, circumvents the power of judges over gang prosecutions, and expands the scope of the death penalty in gang crimes.
That accidental killings or second-degree murder could be prosecuted as capital crimes might give hardcore death penalty advocates pause. Still, according to numerous civil rights organizations and attorneys for the ACLU (strong opponents of the bill), it's a legitimate possibility, even while the bill's supporters are insisting that an existing federal law - under Title 18 - prevents the death penalty from being applied in second-degree murder cases. "No one can believe that this is a reality ... but there is still the opening in that federal statute [under Title 18] for the death penalty in accidental death," explains Jesselyn McCurdy, an ACLU Legislative Counsel.
Consider this scenario: Three gang members rob a liquor store. Only one is armed and he shoots the clerk. All three get the death penalty.
Here's another: A chance street fight between two rival gangs leads to one young man being killed. Not premeditated murder. Nevertheless, the perpetrator gets the death sentence and the other gang members get a minimum of 30-to-life.
McCurdy speculates that, should the bill pass the Senate and become law, "An argument can be made for the death penalty in a second-degree murder case - where a gang member didn't show up to kill someone, but acted recklessly and killed someone. Prosecutors can also argue the death penalty for the gang members who didn't commit the murder, too."
According to a spokesperson for Representative Frank Wolf (R-VA), who coauthored the House bill, if that's the way it turns out, fine. "If it helps deter crime, that's okay," says spokesperson Daniel Scandling. "Don't you think it will stop people from committing a crime? Maybe it will make people think twice before they walk into the liquor store and rob someone."
Wolf's 10th District, which includes suburbs of Fairfax, Virginia, reflects the new reality of gangs, which have been spreading for years to suburban and even rural areas.
The bill's coauthor, Congressman J. Randy Forbes (R-VA), was less forthcoming about its potential effects. Though arguing that the above-noted scenarios involving accessories to murder or second-degree murder are just fiction, when asked by CityBeat to state this on the record, a Forbes spokesperson refused. Forbes's office instead provided background on Supreme Court rulings and Title 18, reiterating as that only "the worst of the worst" would be eligible for the death penalty.
The official stated purpose of the Gang Deterrence Act is to "amend Title 18, United States Code, to reduce violent gang crime and protect law abiding citizens." And then there is this passage, which clearly states, "if the gang crime results in the death of any person [the gang member shall be] sentenced to death or life in prison."
As the ACLU sees it, this language is just too broad. "We've gone back and forth with the Republicans about it," says McCurdy. "We've told them it's clear in [existing law] that if a person commits second-degree murder they can get the death penalty."
But HR 1279 isn't just a Republican bill; it passed so overwhelmingly (279 to 144) that Forbes celebrated it as a "bipartisan" effort in a statement on his website. Rep. Bobby Scott (D-VA) had suggested that Congress should be more focused on preventing young kids from joining gangs, to which Forbes blustered: "Common sense tells us that you can't rip criminal gangs out of our neighborhoods by offering gangbangers who are murdering, raping, and maiming innocent victims more afterschool basketball or arts-and-crafts projects."
Responding to the Forbes statement, Congresswoman Maxine Waters (D-CA) says there's already enough federal law: "I am pained by such a cynical view of a problem that elected officials should be working hard to deal with. We must incarcerate criminals and we have the laws on the books to do that."
Waters is arguably the most experienced member of Congress when it comes to gangs, representing some of the most heavily gang-controlled areas in the country, including Inglewood and Watts, and has championed programs like Community Build and Project Build, saying, "Not only did we get people in jobs they still have today, they bought homes, got businesses. We got people to remove tattoos and do community projects to pay off warrants to be free of interaction with the police. We're talking about real intervention and it does take resources and it does turn this situation around."
In addition to expanding the scope of the death penalty, HR 1279 gives blanket authority to the U.S. Attorney General to prosecute these cases. And while it does not authorize additional funds for local law enforcement or gang prevention programs, it reiterates an earlier appropriations bill authored by Rep. Wolf, which passed the Senate in December 2004 and authorized $10 million to the FBI for the purpose of creating a National Gang Intelligence Center and database of street gang members. It sets strict minimum sentences for gang crimes and allows juveniles to be tried as adults.
A Forbes spokesperson also cited Supreme Court rulings that exempt juveniles from getting the death penalty, but again refused to go on the record and state definitively that HR 1279 would not lead to juveniles being put to death. But Waters and Rep. John Conyers (D-MI) are among those who believe it could happen.
"I don't know how I feel about the death penalty, to be honest," says Dave Carver, Gang Response and Intervention Team (GRIT) coordinator for Loudoun County, Virginia, which is in Rep. Wolf's district. "I don't know that it would deter gang crime any more than it has deterred other crimes in the past."
Carver believes that results are better when resources are allocated toward prevention and intervention. "When I'm asked how many kids did you prevent becoming gang members, we don't have those statistics. That makes it hard to get funds and it's a barrier we have to overcome."
Now the bill goes to the Senate, where legislation already exists from Senators Dianne Feinstein (D-CA) and Orrin Hatch (R-UT). According to Feinstein spokesperson Scott Gerber, her bill differs in five key ways:
• The Feinstein bill doesn't expand the range of gang crimes punishable by death.
• Feinstein sets non-mandatory maximums. The House sets mandatory minimums.
• Feinstein's bill makes it a federal crime to recruit a juvenile. The House doesn't.
• The House gives blanket authority to the attorney general to try a juvenile as an adult. The Feinstein bill keeps that authority with judges.
• Feinstein includes $350 million for prevention, intervention and suppression. Included in that is $60 million for witness protection. The House is silent on everything but suppression.
Civil libertarians will be happier with that bill, but the ACLU still will not support it, because of the issue about trying more children as adults. "We have problems with that," McCurdy says. "And we'd need to look at her definition of a 'gang.' Hers was better than the version by the House, but it wasn't great. It was still three or more people."
Waters hasn't seen the Feinstein bill ("I have to see if the death penalty is there and if it recognizes prevention"), but is also bothered by the definitions. "They refuse to understand that these children say they are a gang member just so they don't get harassed or in trouble. And not all gang members are raping and murdering and maiming people. So, yes, lock up the bad criminals and, yes, provide prevention. But we need to make sure that innocent young people don't get caught up with this simply because they went to the wrong place at the wrong time."
Published: 05/26/2005
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