FEDERAL PUBLIC DEFENDER Western District of Washington

FEDERAL PUBLIC DEFENDER Western District of Washington Thomas W. Hillier, II Federal Public Defender April 10, 2005 The Honorable Howard Coble Chairman Subcommittee on Crime, Terrorism and Homeland Security Judiciary Committee United States House of Representatives Washington, D.C. 20515 The Honorable Bobby Scott Ranking Democrat Subcommittee on Crime, Terrorism and Homeland Security Judiciary Committee United States House of Representatives Washington, D.C. 20515 Re: Gang Deterrence and Community Protection Act of 2005 (H.R. 1279) Dear Chairman Coble and Representative Scott: I write on behalf of the Federal Public and Community Defenders to strongly oppose the Gang Deterrence and Community Protection Act of 2005 (H.R. 1279), which I understand is scheduled for a hearing and markup on Tuesday, April 12, 2005. Section 101 of Title I of the legislation, entitled Criminal street gang prosecutions, would classify as gang crimes a variety of state and federal crimes, many of which involve no violence, no relation to criminal street gang activity, and no particularized harm attributable to criminal street gangs. The statute is vague and overbroad, contains no discernible state of mind requirement, federalizes state crime, and imposes excessive penalties. The enumerated gang crimes include: a crime of violence -- as newly defined in section 112 to include offenses that are misdemeanors in some states (but not others), and non-violent drug crimes -- as well as the whole panoply of traditional state felonies involving force or the risk of force any crime involving dealing in a controlled substance, regardless of the amount burglary 1

numerous federal offenses ranging from explosives and firearms offenses to identity fraud, stolen property offenses, and immigration offenses. If a person commits one of these gang crimes in order to further the activities of a criminal street gang, which need not be felonious or even criminal activities, or in order to gain entrance to or maintain or increase position in such a gang, which need not have a criminal purpose, s/he is subject to a mandatory minimum sentence of 10, 20 or 30 years and a maximum of life, or a minimum of life and a maximum of death. Where there truly is gang-related harm sufficient to justify federal intervention in traditional state crime matters or increased penalties for federal crimes, the RICO and CCE statutes are designed for that purpose and have been successfully used for that purpose for many years. See, e.g., Janice A. Petrella, Equal Protection--What Is In A Name? Sign? Symbol? Gang Members And Rico Considered, 34 Rutgers L.J. 1237 (2003) ( there is a national trend in fighting gang-related crime using the RICO statutes, and these efforts have been very successful.... RICO may be used to target the managing forces of the gang, as well as its underlings. ); David R. Truman, The Jets And Sharks Are Dead: State Statutory Responses To Criminal Street Gangs, 73 Wash. U. L.Q. 683 (1995) ( Gangs were being prosecuted under RICO as early as the mid-1980s. By the early 1990s, the CCE statute was also being used against gangs that engaged in drug trafficking. ). Section 103(c) would permit a court at or after sentencing, upon motion of the Bureau of Prisons or a United States attorney, to order that a defendant convicted of certain racketeering, controlled substance, or criminal street gang offenses not associate or communicate with his attorney. The defendant s attorney currently is excepted from this possibility. See 18 U.S.C. 3582(d). We believe that such an order would violate the Sixth Amendment, and that, in some circumstances, the mere opportunity to move for such an order would lend itself to abuse. Section 112 of the legislation would change the definition of crime of violence in 18 U.S.C. 16(b) from an offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used, to any such offense if it is punishable by imprisonment for more than one year, or that is a controlled substance offense under 21 U.S.C. 841(b)(1)(A), (B) or (C) involving no force or inherent risk of force. In addition to appearing in multiple existing statutes and thus extending their reach, the modified crime of violence is a predicate for a variety of new and revised offenses and penalties under Sections 101, 102, 104, 105 and 106 of the bill. Because some states punish misdemeanors for more than one year, this would create unwarranted disparity. For example, in both Alabama and Massachusetts, relatively minor offenses that arguably involve a risk of force, such as resisting arrest and assault, are classified as misdemeanors. In Alabama, a misdemeanor is punishable by no more than one year, see Ala.Code 1975 13A-1-2(9), but in Massachusetts, misdemeanors are punishable by up to 2 ½ years. If committed in Massachusetts, this type of offense could be prosecuted 2

and punished under these various federal statutes, but not if committed in Alabama, though both states regard them as relatively minor. In addition, the use of the revised crime of violence as a predicate for new federal crimes and penalties would have grotesquely severe and irrational effects. As just one example, Section 106 would create the new offense of a crime of violence during and in relation to a drug trafficking crime, with mandatory consecutive punishment in addition to that for the drug trafficking crime of life or death if the crime of violence results in death; at least 30 years if the crime of violence is kidnapping, aggravated sexual abuse or maiming; at least 20 years for assault resulting in serious bodily injury; and otherwise at least 10 years and up to life. Resisting arrest, not punishable at all under federal law, during and in relation to possession or distribution of a small amount of marijuana, a misdemeanor subject to imprisonment for not more than one year, would be subject to a mandatory minimum sentence of 10 years. If the crime of violence were a drug trafficking crime, the offense under Section 106 would be a drug trafficking crime during and in relation to a drug trafficking crime. A person otherwise subject to a sentence of no more than 20 years under 21 U.S.C. 841(b)(1)(C) would be imprisoned for at least 10 years. A courier in a drug trafficking conspiracy involving a larger amount of drugs and thus subject to a mandatory minimum of 5 or 10 years under 21 U.S.C. 841(b)(1)(A) or (B), would instead receive a mandatory minimum of 15 or 20 years. The legislation creates twenty-four new mandatory minimums for new and revised offenses, 1 and raises three existing mandatory minimums. 2 It is undeniable by now that mandatory minimum statutes result in unwarranted disparity, including racial disparity, transfer sentencing power to prosecutors, and produce sentences that are unfair, disproportionate to the seriousness of the offense, and irrational. 3 We are aware of no complaint from the public that penalties for federal offenses are too low, or that the federal government should step in and pre-empt state law enforcement with ever increasing federal mandatory minimum sentences. The Federal and Community Defenders are particularly disturbed by this bill s creation of numerous new capital offenses when 119 innocent people have now been released from death row. As a result of this evidence, many states are placing moratoriums on the death penalty or seriously considering doing so. This legislation flies 1 See Sections 101 (criminal street gangs), 102 (travel in aid of racketeering), 103(a) (carjacking), 104 (murder for hire and other crimes of violence ), 105 (violent crimes in aid of racketeering), 106 (murder and other violent crimes during and in relation to a drug trafficking crime), 107 (multiple interstate murder), 114 (section 924(c)(1)(A)(iii). 2 See Sections 103(b) (section 924(c)(1)(A)(i) and (ii)), 114 (section 924(h)). 3 See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991); Federal Judicial Center, The Consequences of Mandatory Prison Terms (1994); Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199 (1993); Harris v. United States, 536 U.S. 545, 570-71 (2002) (Breyer, J., concurring in part and concurring in the judgment). 3

in the face of the growing public consensus that capital punishment is wrong by attaching the death penalty to a variety of traditional state crimes, merely if death results. Six of the seven death-eligible offenses in this legislation have no necessary element of intent to kill or even reckless disregard for human life, and state of mind requirements were actually removed from the carjacking statute and the Travel Act. See Sections 101, 102, 103(a), 104, 105, 106. The seventh would criminalize traveling or use of the mails or other facility in interstate or foreign commerce with intent that 2 or more intentional homicides be committed, with no illegal act. See Section 107. This does not seem to comply with the Supreme Court s admonitions that the death penalty is disproportionate for all but the most severe offenses. Section 110 would change venue in capital cases from the county where the offense was committed, where that can be done without great inconvenience, see 18 U.S.C. 3235, to any district where activities which affect interstate or foreign commerce involved in the offense, or related conduct... occurred, regardless of where the offense was committed. This would permit the prosecution to forum shop for the venue most likely to produce conviction and a sentence of death, or the one most burdensome for the defendant. And it would allow the government to bring the death penalty to states whose citizens have rejected it, even if the offense was not committed there. The Constitution twice guarantees the right to trial in the State and district where the crime was committed. See U.S. Const. Art. III, 2, cl. 3; U.S. Const. Amend. VI. Thus, venue is constitutional only in the district where the acts constituting the charged offense were committed, not in any district where activities which affect interstate or foreign commerce involved in the offense, or related conduct... occurred. See United States v. Cabrales, 524 U.S. 1, 6-10 (1998) (venue for money laundering offenses was in the district where the money was laundered, not the district where the money was illegal produced); United States v. Salinas, 373 F.3d 161, 163-170 (1 st Cir. 2004) (venue for passport fraud was in the district where the defendant made the knowingly false statement, not where the application was processed). Section 111 would add a new fifteen-year statute of limitations for any noncapital felony, crime of violence, including any racketeering activity or gang crime which involves any crime of violence. The most serious offenses in the criminal code are subject to a five-year statute of limitations. See 18 U.S.C. 3282. Even terrorism offenses are subject only to an eight-year statute of limitations. See 18 U.S.C. 3286. As discussed above, the proposed new definition of crime of violence consists of conduct that is not necessarily serious, or is no more serious than many other crimes in the code. There is no special reason to discard the important policies underlying the normal statutes of limitations to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Toussie v. United States, 397 U.S. 112, 114-15 (1970). Finally, Section 113 would amend Fed. R. Evid. 804(b)(6) to permit a statement to be offered against a party when the declarant s unavailability was procured by wrongdoing if the party reasonably could foresee such wrongdoing would take place. 4

Currently, this exception applies only when the party engaged or acquiesced in the wrongdoing. It was adopted in 1997 in recognition of the need for a prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself. Fed. R. Evid. 804, advisory note (1997). A person who did not even acquiesce in the wrongdoing plainly did not engage in behavior that should be targeted by this exception. On behalf of the Federal Public and Community Defenders, I respectfully urge you to oppose this legislation. Very truly yours, Thomas W. Hiller II Federal Public Defender Chair, Legislative Expert Panel, Federal Public and Community Defenders cc: Members of the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary Committee 5

FEDERAL PUBLIC DEFENDER Western District of Washington Thomas W. Hillier, II Federal Public Defender April 21, 2005 The Honorable F. James Sensenbrenner, Jr. Chairman Judiciary Committee United States House of Representatives Washington, D.C. 20515 The Honorable John Conyers Ranking Member Judiciary Committee United States House of Representatives Washington, D.C. 20515 Re: Gang Deterrence and Community Protection Act of 2005 (H.R. 1279) Dear Chairman Sensenbrenner and Representative Conyers: I wrote early last week on behalf of the Federal Public and Community Defenders to strongly urge the House Judiciary Committee s Subcommittee on Crime, Terrorism and Homeland Security to oppose H.R. 1279 for a number of constitutional and policy reasons. I am writing now to alert you that this legislation seems to exceed Congress authority under the Commerce Clause by making federal crimes of a host of traditional state offenses that have no substantial effect on interstate commerce. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that a statute making it a federal crime to possess a firearm within 1000 feet of a school exceeded Congress authority to regulate commerce, emphasizing that this was an area of traditional state concern and criminalized conduct already denounced as criminal by the States, and that neither the actors nor their conduct had a commercial character. Id. at 561 n.3, 567, 560-62, 580. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court struck down the Violence Against Women Act, which provided a civil remedy in federal court for victims of gender-motivated violence. The Court made clear that the federal government does not have Commerce Clause jurisdiction over violent crime merely because it has an effect on the national economy. Id. at 612-16. Otherwise, the 6

Commerce Clause could be used to completely obliterate the Constitution s distinction between national and local authority. Id. at 615. In Jones v. United States, 529 U.S. 848 (2000), the Court limited the reach of the federal arson statute, in part to avoid constitutional doubts under its commerce jurisprudence. The government argued that arson of a private home could be reached under the statute, as "property used in interstate or foreign commerce or in an[] activity affecting interstate or foreign commerce," because the home received out-of-state utilities, and was covered by an out-of-state mortgage and insurance policy. The Court rejected this argument, ruling that the "used in" language of the statute required active employment in interstate commerce, not mere passive receipt of interstate services. Id. at 855-56. The Court added that if it adopted the government's theory, it would make virtually every arson in the country a federal offense. Id. at 859. The Court refused to read the statute to reach this "traditionally local criminal conduct." Id. at 858. H.R. 1279 has substantial Commerce Clause problems under Lopez, Morrison and Jones. It prohibits "gang crimes" by "criminal street gangs." Gang crimes include any state crime of violence punishable by imprisonment of more than one year. This cannot be a basis for Commerce Clause jurisdiction, as Morrison makes clear. See 529 U.S. at 612-15. "Criminal street gang" is defined to include any group of three or more who commit gang crimes, "if any of the activities of the criminal street gang affects interstate or foreign commerce." This seems to raise issues under Lopez and Jones. The activity is noncommercial (i.e., violent crime), and so is being prosecuted on the basis that the gang has some other connection to commerce. In such a circumstance, a gang's minimal connection to commerce would not suffice. Avoiding a constitutional problem would require that the criminal street gang itself be an economic enterprise, or at least that its activities "substantially" affect commerce. Otherwise, virtually all local activity that could be characterized as "gang activity" would be federalized, upsetting the federal-state balance in criminal prosecution. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the Sixth Circuit followed similar reasoning to conclude that a gang prosecution under RICO exceeded Congress authority under the Commerce Clause where the putative gang s activities were intrastate, non-economic, and without substantial effect on interstate commerce. Id. at 255-58. On behalf of the Federal Public and Community Defenders, I respectfully urge you to oppose this legislation for this additional reason. Very truly yours, 7

Thomas W. Hiller II Federal Public Defender Chair, Legislative Expert Panel, Federal Public and Community Defenders cc: Members of the House Judiciary Committee 8