The House Overreaches

The House Overreaches

Monday, May 16, 2005; A16

THE HOUSE OF Representatives passed a bill last week designed to reduce gang violence. The so-called “Gangbusters” bill would greatly expand federal authority to prosecute gang members, even for local activity. It would establish mandatory minimum sentencing requirements for many crimes, including but not limited to newly defined offenses. These are terrible ideas that ought to be rejected if and when the Senate considers similar legislation.

The bill’s definition of gang activity represents an unwarranted federalization of local crime. Gang violence is a serious problem, and some gangs operate across state lines and require federal attention. But this law is written so broadly as to potentially include many local crimes, which are traditionally prosecuted by the states. Under its terms, anyone who commits or conspires in a “gang crime” — defined to include a wide range of drug and violent felonies — in order to further “the activities of a criminal street gang” or gain entrance to one can be prosecuted federally. A “criminal street gang” is defined as “a formal or informal group” of at least three people who commit two or more gang crimes. And the bill would require only the most tenuous connection to any legitimate federal interest before the matter could be handled by the Justice Department. In other words, just about any pattern of street violence involving people who wear the same tattoos could become a federal matter. The predominant state role in prosecuting street crime deserves more respect.

The bill also contains mandatory minimum sentences for a variety of federal crimes. Early this year, the Supreme Court ruled that federal sentencing guidelines, at least as currently written, could not bind judges because they depended on facts found by the judge but not proven to a jury beyond a reasonable doubt. Given Congress’s commitment over the years to limiting judicial sentencing discretion, a legislative response that restores mandatory sentencing is hardly a surprise. But this would nonetheless be a disaster.

Mandatory minimums satisfy the Supreme Court’s dictates, because they are so crude that they need depend only on the facts the jury found in order to convict. But precisely for that reason, they are far less fair and flexible even than the already too rigid guidelines whose required imposition the court struck down. They permit no attention to the individual circumstances of the convicts — except to impose harsher penalties still. Such sentencing regimes at the state and federal levels have been overwhelmingly harmful. Members of Congress may be keen to deprive federal judges of the new discretion the Supreme Court has given them. But this is the worst possible answer.

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