Families Against Mandatory Minimums 1612 K Street, N.W., Suite 700 Washington, D.C

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1 Families Against Mandatory Minimums 1612 K Street, N.W., Suite 700 Washington, D.C Summary of The Gang Deterrence and Community Protection Act of 2005 Title I Criminal Law Reforms and Enhanced Penalties to Deter and Punish Illegal Street Gang Activity and Related Reforms Sec. 101: Revision and Extension of Penalties Related to Criminal Street Gang Activity (section 521 of title 18, U.S. Code). Targets activities, conspiracies or threats that further street gang activity or the defendant s standing within the street gang. Creates new penalties with mandatory minimum sentences based on the seriousness of the offense: o Death or life imprisonment for any gang crime resulting in death o 30 to life for kidnapping, aggravated sexual abuse or maiming o 20 to life for assault resulting in serious bodily injury ( SBI ) o 10 to life for any other gang crime. Amends definition of a criminal street gang by lowering the number of people involved from 5 to 3, eliminating the existing 5-year window for the predicate crimes to have occurred (currently in 18 U.S.C 521), and replacing the requirement that the gang engage in a continuing series of offenses with a minimum of two predicate gang crimes, one of which must be a crime of violence. o Definition: The term criminal street gang means a formal or informal group or association of 3 or more individuals, who commit 2 or more gang crimes (one of which is a crime of violence other than an offense. punishable under subparagraphs (A), (B), or (C) of section 401b(1) of the Controlled Substances Act), in 2 or more separate criminal episodes, in relation to the group or association, if any of the activities of the criminal street gang affects interstate or foreign commerce. New bill amends the definition of a crime of violence in 18 U.S.C. 16(b) to include drug trafficking crimes under 21 U.S.C. 841 (b) drug crimes that carry mandatory minimum sentences... Currently a crime of violence is defined as an offense with some element of force against a person or property, or an offense punishable by at least a year that involves a substantial risk of force against a person or property) (see Sec.112 for full definition and analysis). o For purposes of the crime of violence predicate offense for identifying a criminal street gang, mandatory minimum drug crimes would not count.

2 A gang crime is defined to mean any Federal or State crime punishable by more than 1 year in prison and includes among others: violence, obstruction of justice, drug distribution or manufacturing, or explosive materials crime where the underlying conviction is, among others, money laundering, fraud, and interstate transportation of stolen cars or property. Sec. 102: Increased Penalties for Interstate and Foreign Travel or Transportation in Aid of Racketeering (Section 1952 of title 18, U.S. Code) Adds conspiracy and attempts to the punishable offenses Creates a new mandatory minimum of 5 years for violating this provision and increases the maximum sentence to 20 years (original 5) Creates a new mandatory minimum of 10 years for interstate or foreign travel with the intent to commit a crime of violence in furtherance of unlawful activity and increases the maximum to 30 years (original 20) Creates a new death penalty or life imprisonment if death occurs (original life). Sec. 103: Amendments Relating to Violent Crime Car jacking (Section 2119 of title 18, U.S. Code): adds conspiracy to definition and eliminates intent to cause death or serious bodily harm o New definition: Whoever takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts or conspires to do so o Penalties: Increases maximum to 20 years (original 15) [in subsection (1)] Serious bodily injury: creates new mandatory minimum of 10 years and increases maximum to 30 (original 25) [in subsection (2)] Illegal gun transfers to drug traffickers [924(g) of title 18, U.S. Code]: adds possession to the definition, and creates a new mandatory minimum of 5 years while increasing the maximum to 20 years (original 10) o Definition: Whoever knowingly transfers a firearm, knowing or intending that firearm will be used to commit, or possessed in furtherance of, a crime of violence or drug trafficking crime.... Limitations on criminal association [Section 3582(d) of title 18, U.S. Code]: eliminates attorney exemption allowing prisoners to associate or communicate with their attorneys if probable cause is shown that this is part of a criminal gang activity or illegal enterprise o Original provision grants the Court upon a motion from the Director of BOP or US Attorney the authority to include in a defendant s sentence an order not to associate or communicate with specified persons except for 2

3 the defendant s attorney if probably cause is shown the association/communication is part of an illegal enterprise. Conspiracy to defraud U.S. (Section 371 of title 18, U.S. Code): Increases maximum sentence to 20 years (original 5). o Original provision makes it illegal for two or more persons to conspire to commit a crime against the U.S. or to defraud the U.S., including any agency, and one or more persons does something that affects the object of the conspiracy. Sec 104: Increased Penalties for Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire and Other Felony Crimes of Violence (Section 1958 of title 18, U.S. Code) Adds other felony crimes of violence to the definition of the crime Adds mandatory fine Creates new penalties with mandatory minimums: o Death or life in prison if the crime of violence results in death o 30 to life for kidnapping, aggravated sexual abuse, or maiming o 20 to life for assault with serious bodily injury o 10 to life for all other cases. Sec 105: Increased Penalties for Violent Crimes in Aid of Racketeering Activity [Section 1959(a) of title 18, U.S. Code] Creates mandatory consecutive sentences o Maintains death penalty or life for the death of any person o 30 to life for kidnapping, aggravated sexual abuse, or maiming (original 30 max for maiming; life for kidnapping) o 20 to life for assault with serious bodily injury (original 20 max) o 10 to life for all other crimes. Sec. 106: Murder and Other Violent Crimes Committed During and in Relation to a Drug Trafficking Crime (21 U.S.C 841) Creates a new section (titled above) that adds mandatory consecutive penalties to the drug trafficking statute in cases where a crime of violence is associated with the underlying drug trafficking crime o Death penalty or life for the death of any person o 30 to life for kidnapping, aggravated sexual abuse, or maiming o 20 to life for assault with SBI o 10 to life for all other cases. 3

4 Sec. 107: Multiple Interstate Murder (Part I of chapter 51 of title 18, U.S. Code) Creates a new section for traveling in or causing another to travel in interstate or foreign commerce or to use the mail or any facility in interstate or foreign commerce with the intent that 2 or more murders be committed o Death penalty or life should the offense result in the death of any person o 20 to life for assault with SBI o 10 to life for all other cases. Sec. 108: Additional Racketeering Activity [Section 1961(1) of title 18, U.S. Code] Modifies the list of RICO predicates to clarify applicability of predicate offense which occur on Indian country (as defined in section 1151) or in any other area of exclusive Federal jurisdiction. Sec. 109: Expansion of Rebuttable Presumption Against Release of Persons Charged with Firearms (Section 3142 of title 18, U.S. Code) Expands the power of a judicial officer during pre-trial release hearings to detain a defendant charged with firearm offenses after having previously been convicted of a prior crime of violence or serious drug trafficking offense (defined as having a max penalty of at least 10 years). Sec. 110: Venue in Capital Cases (Section 3235 of title 18, U.S. Code) Amends jurisdiction of cases punishable by death to include not only the district where the offense was committed (original) but districts involved in the entire timeline of the offense, from conception to completion Creates new subsection allowing jurisdiction to fall in a district where related conduct occurred if the offense affects interstate or foreign commerce, or involves the importation of a person or object into the U.S. Sec. 111: Statute of Limitations for Violent Crime (Chapter of title 18, U.S.C) Creates a new section ( Violent crime offenses ) that sets the statute of limitations for violent crimes cases at 15 years after the offense occurred or the continuing offense was completed. Sec. 112: Modification of Definition of Crime of Violence (Section 16(b) of title 18, U.S. Code) Amends the crimes of violence definition to include any offense punishable by at least one year in prison and also mandatory minimum drug crimes 1 The reference to Chapter 214 does not exist in the U.S. Code and most likely refers to Chapter 213 4

5 o Previously included only felony offenses that involved a substantial risk of physical force o Previously did not include drug trafficking offenses. Definition: (b) any other offense that is an offense punishable by imprisonment for more than one year and that, by its nature, involves a substantial risk that physical force may be used against the person or property of another, or is an offense punishable under subparagraphs (A), (B), or (C) of section 401(b)(1) of the Controlled Substances Act. Sec. 113: Clarification to Hearsay Exception for Forfeiture by Wrongdoing [Rule 804(b)(6) of the Federal Rules of Evidence] Amends the definition so that hearsay statements made by a witness who cannot testify (for example due to murder) can be used against defendants in a conspiracy if they had prior knowledge that the witness would be detained o New Definition: A statement offered against a party who has engaged or acquiesced in wrongdoing, or who could reasonably foresee such wrongdoing would take place, if the wrongdoing was intended to, and did, procure the unavailability of the declarant as a witness. Sec. 114: Increased Penalties for Criminal Use of Firearms in Crimes of Violence and Drug Trafficking [Section 924(c)(1)(A) of title 18, U.S. Code] Amends subsection (A) to include conspiracy; if someone conspires to commit a crime of violence or drug trafficking crime and a firearm is involved, the defendant will receive a mandatory consecutive sentence each time the weapon is used, carried, or possessed Increases the existing mandatory minimum consecutive penalty for possession to 7 years (original 5) Eliminates the brandishing definition and penalty Increases the penalty for discharging to 15 years (original 10) Creates a new penalty for wounding, injuring, or maiming: 20 years Sec. 115: Transfer of Juveniles (4 th undesignated paragraph of section 5032 of title 18, U.S. Code) Authorizes an Attorney General to charge as an adult a juvenile who is 16 or older and commits a crime of violence 2 Eliminates the requirement that the juvenile have a prior felony offense 2 Drug trafficking crimes were not included in the original definition of crimes of violence; however, the original provision in section 5032 of title 18, U.S.C includes in addition to crimes of violence drug trafficking crimes as specified in the Controlled Substances Act 5

6 Provides that such juveniles can also be charged and convicted as an adult of any included lesser offense. Prohibits judicial review of the Attorney General s decision to transfer juveniles. Title II Increased Federal Resources to Deter and Prevent At-Risk Youth from Joining Illegal Street Gangs Sec. 201: Designation of and Assistance for High Intensity Interstate Gang Activity Areas Requires the Attorney General, after consultation with the Governors of appropriate states, to designate certain locations as high intensity interstate gang activity areas Organizes criminal street gang enforcement teams made up of local, state and federal law enforcement authorities to investigate and prosecute criminal street gangs in each high intensity interstate gang activity area Authorizes $50 million for each of the fiscal years 2006 through 2010 to combat the high intensity gang activity areas Authorizes $7.5 million each of the fiscal years 2006 through 2010 to hire 94 additional Assistant U.S. Attorneys Sec. 202: Grants to State and Local Prosecutors to Combat Violent Crime and to Protect Witnesses and Victims of Crimes (42 U.S. C ) (note: can t find this citation) Authorizes $20 million for each of the fiscal years 2006 through 2010 to allow for the hiring of additional state and local prosecutors, and the purchasing of technological equipment to increase the accurate identification and prosecution of violent offenders 6