Little Hope in 2011 For Federal Gang Legislation
George W. Knox, Ph.D.
The 112th Congress opened up officially on January 5th, 2011 and as its first item of business the outgoing Speaker of the House, Rep. Nancy Pelossi (D-CA) handed over a large gavel to Rep. John Boehner (R-OH) the new Speaker of the House. While there has been a genuine change in the political affiliation of House members, there may not be much in the way of additional changes when it comes to passing new anti-gang laws. Don’t get your hopes up for new anti-gang laws is our prediction.
The indepth analysis of previous attempts to pass anti-gang legislation during the 111th Congress shows that we should not expect to see much in the way of anti-gang initiatives passed in the next couple years. What Congress has previously attempted in trying to pass anti-gang laws and what it has never attempted will be briefly examined here.
It’s An Issue With Citizens But a Much Less Salient An Issue for Policy Makers
Congress is not geared up to deal with gangs is one basic fact of life. The 112th Congress has opened amid a political tone that has the ring of austerity rather than a strong commitment to funding new initiatives such as tackling the gang problem in America.
In many communities, citizens are demanding tougher laws to fight gang violence. The issues of gang violence, gang prevention, gang intervention, gang outreach, gang prosecution, etc, remain very salient issues with many voters. Hiring new gang specialist police officers, creating new gang task forces, collecting state and county level gang intelligence are among some of the many worthwhile initiatives deserving of federal funding.
Little Consensus Exists Across The Aisle on Crime Control: Especially Gangs
There is also a lot of confusion about some gang issues in the current political debate, for example some critics have lumped tattoo removal services in with "pork barrel spending". Admittedly, some citizens may not understand why gang tattoo removal services (GTRS) is a vital and useful public expense. Funding for GTRS is not pork or wasteful spending, it helps people leave gang life, get a more pro-social identity, and basically many employers will not hire someone with visible gang tattoos.
The 111th Congress (2009-2010) ended with a number of gang-related bills not making it past the second stage. The first stage of any bill is getting it introduced. The second stage of a bill is having it referred to a committee. The third stage is when the committee refers the bill back to the house. The fourth stage would be when the bill is voted on by the House.
An Analysis of Legislative Efforts During the 111th Congress
Literally, all of the bills in Table 1 made it only to the "refer to committee" stage during 2009-2010. A majority of these bills were introduced by an elected official from California where there is an early history of establishing special laws at the state level to respond to gang problems. None of these bills have made it out of committee, and if we examine some of the intricacies and complexities of the bills, we may understand why it is hard to generate consensus on the bills.
Table 1: Anti-Gang Bills That Were Introduced for the 2011th Congress
Number and Title of 111th Congress Legislative Bills Sponsor of the Bill
HR 750 Stamp Out Gang Violence Act Rep. Joe Baca (D-CA 43)
HR 1022 Gang Prevention, Intervention
and Suppression Act Rep. Adam Schiff (D-CA 29)
HR 1303 CAN DO Act of 2009 Rep. Bobby Rush (D-IL 1)
HR 1589 Bullying and Gang Reduction
for Improved Education Act Rep. Linda Sanchez (D-CA 39)
HR 2418-Mynisha’s Law Rep. Joe Baca (D-CA 43)
HR 2541 Anti-Gang Task Force Act of 2009 Rep. Charles Dent (R-PA15)
HR 2815 Anti-Gang Enforcement Act of 2009 Rep. Thomas Rooney (R-FL)
HR 2857 Gang Deterrence and Community
Protection Act of 2009 Rep. Randy Forbes (R-VA 4)
HR 3526 Tony Cardenas Community-Based
Gang Intervention Act Rep. Diane Watson (D-CA 33)
S 208 Mynisha’s Law Sen. Barbara Boxer (D-CA)
S. 132 Gang Abatement and Prevention Act of 2009 Sen. Dianne Feinstein (D-CA)
What’s Wrong With Another U.S. Post Office Stamp?
HR 750, Stamp Out Gang Violence Act, is the shortest and simplest bill to understand. All it asks for is that special postage stamps be allowed to be sold by the U.S. Postal Service, where it would be clear that a small portion of the proceeds of the purchase of the special stamp would be a way for the public to contribute to the funding of the G.R.E.A.T. gang prevention program administered by the Office of Justice Programs, Department of Justice. This is a slam dunk kind of bill. Who could possibly object, it is a great idea to allow American citizens to directly contribute to the GREAT anti-gang program. There is no tax increase, it is just a plain good idea. But even a good idea cannot get out of committee sometimes.
A Great Idea: Prosecute Gang Recruitment Behind Bars
HR 1022 Gang Prevention, Intervention and Suppression Act is somewhat comprehensive by focusing on adding new penalties and new sanctions to certain gang behaviors like gang recruitment, where currently, the gangs are getting a free pass (facing no federal laws at all). If HR 1022 was passed, recruiting a juvenile into a gang could carry a ten year federal prison sentence. The bill also gives power to STG gang intelligence specialists by allowing the federal prosecution of those who recruit others into a gang while incarcerated. These are ways to plug the holes in the legal process and strengthen the ability of the criminal justice system to respond to the American gang problem.
Martial Arts and Defense Classes for Gang Kids? That Might Be a Hard Sell, Really, Where’s The Theory of Human Behavior
HR 1303 CAN DO Act of 2009 seeks to establish a 5-year grant program to implement various social services in high-crime communities. The bill asks for $100 million in federal funding to do a large number of social services most of which are known to be used for delinquency prevention (Parenting classes, mentoring/tutoring, GED preparation, college counseling, sports leagues, nutrition programs, music/dance/theater, field trips --- cultural enrichment. One of the main services it wants funded though is “martial arts and defense classes”. The bill should have scratched "martial arts and defense classes" and focused on something like "conflict resolution skills". There is no way this bill is going to fly with the “defense classes” for kids in high crime areas provision, it is not clear what theory of human behavior would justify exposing kids to martial arts and self-defense training as a way to prevent them from joining a gang or as a way to prevent gang violence. It would seem to ensure more violence in the population being served.
Congress Should Notice that Bullying Behavior and Gang Behavior are Intertwined
HR 1589 Bullying and Gang Reduction for Improved Education Act basically asks congress to modify the existing Safe and Drug-Free Communities Act to expand the scope from "violence" and "illegal drug use" to "violence, illegal drug use, gangs and bullying". The Bill clearly improves the language in an appropriate way that people who work in K-12 schools would appreciate. The bill simply asks that bullying and gangs get some consideration. How hard is that to understand?
High Intensity Gang Activity Areas: A Good Idea
HR 2418 Mynisha’s Law would allow units of government (city, county, state, tribal government, etc) to apply to the Attorney General to be designated as a Comprehensive Gang Prevention and Relief Area, making them eligible for federal funding to prevent gang violence. The House and Senate versions are almost identical. As part of the Bill, various Task Forces would submit reports on each area designated as a High Intensity Gang Activity Area. Again, a great idea, allow those communities that have a larger gang problem to get special help, similar to the HIDTA approach in drug crime prosecution.
Some Bills Have More Inclusive Language Than Others
HR 2541Anti-Gang Task Force Act of 2009 also creates multi-jurisdictional anti-gang task forces. The language for membership suffers by excluding tribal government and by not including juvenile and adult correctional systems in the task forces. Anyone who works in a Task Force knows that long ago the real gang specialists discovered that enormous gang intelligence exists in the correctional arena, and that Security Threat Group coordinators and STG staff are some of the most resourceful people to put on a task force. The language needs to include correctional gang specialists, those in probation/parole, such as Federal Bureau of Prisons, Federal Probation, and their state and county counterparts. One good thing about the bill, it kicks it up a notch in crime penalties for gang members. In this bill, a gang murder could land the offender a federal death penalty. But exactly because of that, and the increasing international attention to the issue of the death penalty, it will be difficult to muster consensus for the bill.
Getting The Attention of Gang Members: The Federal Death Penalty for Gang Murders
HR 2815 Anti-Gang Enforcement Act of 2009 also creates the federal death penalty for gang murder cases. It is commendable that legislation seeks to increase the penalties for gang crimes. But simply making the gang members eligible for the death penalty is not going to get the attention of gang members that would be needed to "turn the tide". There may be better ways to put the hurt on gang members in America. Consider the sanction of treating gang offenders as equivalent to sex offenders: requiring them to be listed on a public register.
HR 2857 Gang Deterrence and Community Protection Act of 2009 again seeks to increase sanctions for gang crimes, increase resources for gang prosecution, and increases penalties. It too has a provision to allow the federal death penalty for gang murders. It provides a wide array of new language to modify existing laws. It too creates special resources for high intensity interstate gang activity areas, although the language is weak by ignoring tribal government, and the composition of the criminal street gang enforcement teams needs to be modified to include: IRS criminal division, Immigration, tribal law enforcement, etc. The biggest problem with the bill is that it seeks $287.5 million in funding for the high intensity interstate gang activity areas, that at a time when the rallying cry in Congress is to reduce the deficit.
Putting the Ultimate Social Sanction on Gang Members: Treat them Similar to Sex Offenders – Require them to Publicly Register
If you want to get the attention of gang members and make them reconsider gang membership as a way of life, then we need to consider using a form of the "Sexual Offender Registration Act" for gang offenders. Those gang members with any felony conviction could be treated like sex offenders, and create a special registry for them at state and federal and county levels. This would take away one of the prized advantages gangs currently have: living in anonymity, moving freely and with impunity, while all the while they view themselves as military actors in a war against rival gang members in the same community. It would not cost much and it would have a lot of bang for the buck. Threaten to put them on a public gang registry list and that will get their attention and make them reconsider the gang lifestyle.
The Leader in Congressional Efforts S-132 Still Had It’s Problems
S-132 the Gang Abatement and Prevention Act of 2009, is the most extensive and sophisticated piece of gang legislation to appear in the last decade, and for a number of years now, many policy makers have been pinning their hopes it. Sponsored by Senator Feinstein, S-132 was the single most sophisticated package of new federal laws focusing on the gang problem. It had many good features that can still be used for future bills. For example, S-132 would have expanded the criminal forfeiture provisions for gang crimes. Targeting the financial assets of a gang is an effective strategy to emasculate the gang.
S-132 had the support of a number of organizations including the National Sheriffs Association, Fraternal Order of Police, National Association of Police Organizations, International Union of Police Associations, and others. Some say S-132 was doomed from the start by its weak definitions. For example, while most modern definitions fo what is a "gang" describe it as a group of three or more persons, S-132 gave a much more liberal definition by using the language "5 or more individuals". It also had a somewhat convoluted requirement that all five commit at least one gang crime and who collectively commit three or more gang crimes.
The very definition of "gang" and "gang crime" is very much an unresolved issue for 2011 and onward when it comes to passing effective anti-gang legislation at the federal level. It is sufficient to define gang crime as any crime committed by an active gang member. Fortunately, we have not seen legislative staff get bogged down in the even more complex theoretical issues about "gang motivated crime", which is fancifully used to downplay gang crime, and basically means the gang planned the crime in advance or it was otherwise patently a gang crime by other factors: gang slogans were used during the commission of the crime, two rival gangs made up the victim/offender relationship, etc.
What Can Congress Do Without Increasing Taxes?
We need to empower the FBI with the ability to more effectively track and analyze gangs, gang members, and gang crime.
Congress needs to start with the basics, getting good information available to citizens would be a great start for 2011. For example, in 1994 Congress passed Public Law #103-322A, which in focusing on the problem of hate crimes, simply required the Federal Bureau of Investigation to add one more category of information to its Uniform Crime Report: was the crime reported a "hate crime" as defined by Congress. After 1994, the FBI's Uniform Crime Reports began providing vital and new information by hate crimes in America, allowing citizens to better understand the complexity and subtle nuances of hate crimes, and thus allowing a more effective way to plan methods of prevention, prosecution, etc. Congress in 2011 needs to pass the same kind of law for gang crime: simply require the FBI to add following to all arrest information "was the arrestee a member", or was the crime believed to be committed by a member of a gang, and if so, what gang. Adding those two data elements to the FBI's UCR could really help America get a grip on the gang problem once and for all. Providing that kind of basic information about the scope and extent of gang crime in America and what gangs are committing this mayhem will do much to improve public safety and generate more consensus about "what to do about the problem".
There never has been and there currently is nothing about "gangs" in the FBI's annual Uniform Crime Reports (UCR). Issued every year, these are the premier reports about crime in America, they are reference books. If gang crime and arrest information was available in the UCR, one benefit would be obvious: gang denial would no longer be an option for some communities.
What Will the 112th Congress Do?
Our prediction for the 112th Congress when it comes to anti-gang legislation is that with the change of the guard will come little if any new substantive change in federal legislation enabling anti-gang initiatives to be implemented. Primarily, Congress does not want to pay for new services or initiatives, so in recognizing that we need to focus on the "no cost" or "low cost" options such as finally enabling the FBI to analyze gang crime in America in the Uniform Crime Reports for the future.