Effective and Constitutional Policies to Stop Violent Gangs
The Federal Bureau of Investigation reported in 2006 that violent crime incidents increased by 1.3 percent and property crime incidents decreased by 2.9 percent from 2005 to 2006. The small increase in violent crime needs to be interpreted with caution because the figure does not adjust for population growth. Thus, the actual increase in violent crime may be overstated. Nevertheless, the potential for this slight increase to develop into a long-term trend is cause for concern. Some stories have also reported an increase in gang crime, fueling fears that gang crime might reassert itself as a major problem.
This development has led some to speculate that violent criminal gangs are particularly to blame for the rise in crime. In 2004, the National Youth Gang Survey (NYGS), a nationally representative sample of law enforcement agencies, estimated that there were 760,000 active gang members and 24,000 gangs in the United States. About 25 percent of homicides in cities with populations of 100,000 residents or more in 2004 were suspected by police departments of being gang-related. The toll is higher in some large cities, including Los Angeles and Chicago, with more than half of all homicides thought to be gang-related.
The prevalence of gangs and the number of crimes committed by gang members demonstrate that while gang activity may not be a new problem, it certainly presents serious contemporary issues. Due to the public safety concerns posed by criminal gangs, Members of Congress, including Senators Diane Feinstein (D–CA) and Robert Menendez (D–NJ), have proposed expanding the national government’s role in fighting crime into what has been the traditional realm of state and local governments. They also advocate expanding current national government programs thought to address gang crime, even though little evidence suggests that the existing national programs are successful in gang prevention or suppression.
To address gang-related crime appropriately, the national government should limit itself to handling tasks that are within its constitutionally designed sphere and that state and local governments cannot perform by themselves. Criminal street gangs are a problem common to all the states, but the crimes that they commit are almost entirely and inherently local in nature and regulated by state criminal law, law enforcement, and courts. Thus, state and local governments are best suited to respond to the ordinary street crimes committed by gangs.
The Federal Role in Reducing Gang-Related Crime
At least eight proposals to address gang violence on the federal level are currently pending before Congress. Some, such as the Gang Abatement and Prevention Act of 2007 (S. 456), sponsored by Senator Feinstein, have been introduced several times before in various forms. Others are new, like the Fighting Gangs and Empowering Youth Act of 2007 (S. 990), introduced by Senators Menendez and Frank R. Lautenberg (D–NJ). The different proposals represent a variety of methods for addressing the problems, from creating new federal crimes to handing out large chunks of money for police salaries and creating programs to prevent gang recruitment. Regrettably, most of the proposed solutions disregard the constitutional framework on which the American system of government is based.
Senator Feinstein’s bill is supported by members of both parties and, like many of these proposals, is laudable in its purpose but misguided. The bill aims to fight gang crime by adding an expansive definition of “gang crime” to the ever-growing list of federal crimes, as well as other new offenses such as the crime of gang recruitment. This not only treads on the police powers of the states, which already criminalize all the predicate crimes that the bill lists, but also is a dangerous use of federal criminal law.
The current bill identifies the prohibited conduct by using overly broad and vague definitions that cover too much conduct and too many persons. The bill’s definition of a “criminal street gang” could include anything from the Rotary Club to a business organization if any single individual in the group is accused of committing a total of three crimes, only one of which needs to have occurred after the passage of the bill. One of the crimes must be a violent felony, but the other two crimes could be anything from unlawful possession of a firearm to fraud. Although the current bill narrows some of the definitions from the version introduced in the 109th Congress, the difficulty of defining gang crime suggests that federal criminal law might not be the best tool with which to combat the behavior.
Even without its constitutional problems, S. 456 still creates significant federalism policy problems by involving the national government in fighting ordinary street crime—problems that most of the congressional proposals share. S. 990, Senators Menendez and Lautenberg’s bill, would involve the federal government in areas that are traditionally and most effectively addressed by state and local governments. The bill intends to be comprehensive, funding after-school programs for at-risk youth and law enforcement officers and creating a new federal crime of gang recruitment. In his floor statement, Senator Menendez described a proposal that suffers from the same problems of overbreadth and vagueness.
The federally funded programs for at-risk youth in S. 990 are of the type most effectively addressed at the state and local levels. Local operations can best address community problems because they have the familiarity, the knowledge, and—most important— the local accountability to improve their communities. Federal government programs simply do not have the same strengths and advantages.
S. 990 would also create a new federal entitlement program for state and local law enforcement agencies similar to the Community Oriented Policing Services (COPS) program. Research has shown that the COPS program failed to reach its intended goal of adding 100,000 police officers and was ineffective in reducing crime. The grants were intended to supplement law enforcement funding to allow the placement of additional officers on the streets. Instead, the COPS program has encouraged inefficient use of resources as local agencies have grown dependent on the grants for their routine operations—something for which the grants were not intended. Senator Menendez’s bill would only perpetuate the problem by extending the ineffective grant program.
Congress’s desire to weigh in on gang activity is easy to understand. It is a complex problem that has not yet found an effective solution. What is needed is further study, not a federal government takeover that falsely promises a quick fix.
Overfederalization of Crime. The tendency to search for a solution at the national level is misguided and problematic. Federal crimes should address problems reserved to the national government in the Constitution.
In a speech to the American Law Institute, the late Chief Justice William Rehnquist reiterated what the Judicial Conference of the United States had stated years before: “Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests.” He went on to list the types of crimes to which the federal government should be limited: offenses against the federal government or its interests, crimes with a substantial multi-state or international aspect, crimes involving complex commercial or institutional enterprises, serious state or local government corruption, and crimes raising highly sensitive local issues.
Criminal street gangs are a problem common to all of the states, but the crimes that they commit are almost entirely and inherently local in nature and regulated by state criminal law, law enforcement, and courts. For example, despite the fact that an automobile theft could involve interstate travel, it does not do so in most instances. State agencies investigate and prosecute such crimes. Adding the label of “gang crime” does not change the offense in a way that justifies or constitutionally authorizes federal involvement unless there really is significant interstate activity that has a direct and substantial effect on interstate commerce. In the same speech to the American Law Institute, Rehnquist repeated a principle enunciated by President Abraham Lincoln in the 19th century and President Dwight D. Eisenhower in the 20th century: “Matters that can be adequately handled by the states should be left to them, [and] matters that cannot be so handled should be undertaken by the federal government.”
When Congress adds to the federal criminal law, it generally claims to do so based on its power under Article I, Section 8 of the Constitution, which is known as the Commerce Clause, arguing that the activity being criminalized has some sort of effect on interstate commerce. This use of the Commerce Clause is far from the true meaning of the Constitution. As Justice Clarence Thomas wrote in his concurring opinion in United States v. Lopez, if Congress had been given authority over matters that simply “affect” interstate commerce, most of Article I, Section 8, which enumerates Congress’s powers, would be rendered surplusage.
In addition to violating the constitutional structure of the U.S. government, federalizing crime also reduces accountability and efficiency as law enforcement agencies fight crime. By involving the federal government, Congress undermines the responsibility of state and local law enforcement to develop effective crime-reduction policies. Local officials can pass the buck by pointing the finger at federal enforcement authorities. The problem is compounded because federal action is often ineffective. Federalizing a crime is frequently a symbolic gesture, enabling Congress to say that it has addressed the problem without regard to whether or not the new laws will actually be implemented, much less actually reduce crime. Although it may appear harmless, Congress’s gesture only impedes state and local enforcement in addressing a problem that should be solved primarily at the state and local levels.
In addition to undermining state and local accountability, federal involvement in crime fighting is detrimental to quintessential federal responsibilities. Enforcing criminal law that is not really national in scope is a misuse of federal resources and a distraction from true national concerns. By increasing the federal role in traditional state and local responsibilities, Congress needlessly drains federal resources that should be used for more urgent priorities such as pursuing foreign spies, combating counterfeiting, fighting international terrorism, and improving homeland security.
Ineffective Interference.In addition to creating new federal crimes, Congress has tried to fight gang crime through intergovernmental grants to subsidize the routine responsibilities of state and local criminal justice programs. Such intergovernmental grants have been used for police officer salaries and the operational expenses of juvenile delinquency prevention and correctional programs. While subsidizing the routine activities of state criminal justice systems is popular with Congress, especially when funding can be earmarked, this approach erodes the responsibilities of state and local governments. In addition, the federal government has had difficultly in monitoring and evaluating grant-funded programs to ensure that the funding is not being wasted.
Federal programs are based on the myth that the federal government is more effective than state law enforcement in fighting crime. However, studies that examine the federal government’s experience in fighting crime demonstrate otherwise. In 1997, the U.S. Department of Justice (DOJ) published a report by the University of Maryland’s Department of Criminology and Criminal Justice that called on Congress to devote more resources to evaluating crime-prevention programs because many DOJ crime-prevention programs either were determined to be ineffective or had escaped scrutiny altogether. Ten years later, Congress still has not given significant attention to ensuring that federally funded crime-prevention efforts are in fact preventing crime.
A prime example of a failed federal program that continues to receive popular support from the Administration and Congress is the Gang Resistance Education and Training (G.R.E.A.T.) program—an offshoot of the ineffective Drug Abuse Resistance Education (D.A.R.E.) program. G.R.E.A.T., a school-based gang-prevention program, uses uniformed police officers as instructors in middle school classrooms to teach about the negative consequences of gang participation.
G.R.E.A.T. appears to be successful when “intermediate effects” are used to measure effectiveness. In a national evaluation of G.R.E.A.T., the program was found to be associated with declines in student-reported victimization and risk seeking and increases in the negative perception of gangs, favorable attitudes toward police, and pro-social peer affiliations. However, these intermediate effects are not as important as reducing gang membership and criminal activity—the ultimate goals of any gang-prevention program.
The same national evaluation found that G.R.E.A.T. did not have any statistically significant impact on gang membership, drug use, and total self-reported delinquency.
Despite these underwhelming results, the program retains popular support in the Administration and Congress. Commenting on G.R.E.A.T., Professors Malcom W. Klein of the University of Southern California and Cheryl L. Maxson of the University of California, Irvine, conclude that the program, which “was modeled on a failed program with a positive image is, itself, a study in the application of conventional wisdom in the face of contrary empirical knowledge.”
What the Federal Government Should Do
Although gang crime is largely local in nature, the federal government does have a role to play. Some crimes committed by gangs are essentially interstate in nature, such as a purposeful scheme to transport stolen goods across state lines to evade detection using interstate or international banking facilities. Such conduct falls under Congress’s constitutional power to regulate interstate commerce and already is the focus of federal criminal law. That serious responsibility should not be diluted with federal investigations of vandalism or petty theft.
It should be noted, however, that the fact that a gang is national in scope is insufficient by itself to create the interstate nexus. The crime itself must warrant federal intervention.
In addition, the federal government has a role in producing and coordinating research and information sharing when the states are unable to do so in their individual capacities. State and local governments do not have access to all of the knowledge and experience in law enforcement that the federal government does. For example, a given state may have only one or two large cities where it can collect crime data and test urban crime-reduction strategies. As a result, the states are not in a position to engage in meta-analysis of the various programs and efforts.
However, the federal government is not the only institution that could provide such a service. Foundations and universities could also fill this role. In addition, states can form associations for information sharing and collaboration, such as the National District Attorneys Association or the National Association of (state) Attorneys General.
Members of Congress should affirm the proper division of authority between the federal government and the states in combating violent crime by reducing federal intrusions into state and local crime-fighting activities. Instead of subsidizing the routine activities of state criminal justice systems, the federal government should stick to handling tasks that are within its constitutionally designed sphere and that state and local governments cannot perform by themselves.