Statements on Introduced Bills and Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DURBIN (for himself, Mr. LEAHY, Mr. FEINGOLD, and Mr. KENNEDY):

S. 2358. A bill to allow for the prosecution of members of criminal street gangs, and for other purposes; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, today, I am joined by Senators LEAHY, KENNEDY, and FEINGHOLD in introducing the American Neighborhoods Taking the Initiative-Guarding Against Neighborhood Gangs (ANTI-GANG) Act, which is a comprehensive, tailored bill that will help State and local prosecutors prevent, investigate, and prosecute gang crimes in their neighborhoods.

The National Youth Gang Center has reported evidence of resurgence in gang violence, and this is clearly reflected in Chicago, IL, where 45 percent of the homicides last year were gang-related. In Chicago, there are 98 identified gangs, with an estimated 100,000 gang members; over 13 percent of the gang members nationwide are located within Chicago's city limits.

I would like to commend the State and local prosecutors and law enforcement agencies for their work in fighting this problem. The ANTI-GANG Act would authorize $862.5 million in grants over the next 5 years to provide them with the tools they need and have specifically requested of Congress to combat violent gangs.

For example, the National District Attorneys Association (NDAA) wrote the following: "We must find new methods of protecting those individuals brave enough to come forward as witnesses. Our biggest problem is getting the financial help to establish, and run, meaningful witness protection programs." The National Alliance of Gang Investigators (NAGI) also has identified a trend in witness intimidation that is "dramatically affecting the prosecution of violent gang offenders." The ANTI-GANG Act responds by authorizing $300 million over 5 years for the protection of witnesses and victims of gang crimes. This bill also would allow the Attorney General to provide for the relocation and protection of witnesses in State gang, drug, and homicide cases, and it would allow States to obtain the temporary protection of witnesses in Stage gang cases through the Federal witness relocation and protection program, without any requirement of reimbursement for those temporary services.

The ANTI-GANG Act also authorizes $200 million for grants to develop gang prevention, research, and intervention services. However, these grants should not be limited to those areas already identified as "high intensity" interstate gang activity areas. The NAGI also has identified a trend of gangs migrating from larger cities to smaller communities, which is fueled in large part by an increase in gang involvement in drug trafficking. This may be related to the spread of methamphetamine, which is the fastest-growing drug in the United States and, according to Illinois Attorney General Lisa Madigan, the "single-greatest threat to rural America today." In response to these trends, the ANTI-GANG Act would allow rural communities and other jurisdictions to apply for these grants, to prevent gang violence from occurring in the first place.

The ANTI-GANG Act also authorizes $262.5 million over five years for the cooperative prevention, investigation, and prosecution of gang crimes. Most of this funding would be for criminal street gang enforcement teams made up of local, State, and Federal law enforcement authorities that would investigate and prosecute criminal street gangs in high intensity interstate gang activity areas (HIIGAAs). Importantly, this bill would allow HIIGAAs to be integrated with High Intensity Interstate Drug Trafficking Areas (HIIDTAs), to avoid conflicts in those areas where the two entities would coexist.

The ANTI-GANG Act also authorizes $100 million over five years for technology, equipment, and training to identify gang members and violent offenders and to maintain databases to facilitate coordination among law enforcement and prosecutors.

In addition to these new resources, the ANTI-GANG Act will effectively strengthen the ability of prosecutors to prosecute violent street gangs, by creating a stronger federal criminal gang prosecution offense. This new offense criminalizes participation in criminal street gangs, recruitment and retention of gang members, and witness intimidation. At the same time, it responds to concerns raised by the NDAA regarding potential conflicts with local investigation and prosecution efforts, by requiring certification by the Department of Justice before any prosecution under this bill could be undertaken in federal court.

The ANTI-GANG Act also promotes the recruitment and retention of highly-qualified prosecutors and public defenders by establishing a student loan forgiveness program modeled after the current program for federal employees. Almost a third of prosecutors' offices across the country have problems with recruiting or retaining staff attorneys, and low salaries were cited as the primary reason for recruitment and retention problems. This proposed loan forgiveness program is supported by the American Bar Association, the NDAA, the National Association of Prosecutor Coordinators, the National Legal Aid and Defender Association, and the American Council of Chief Defenders.

The ANTI-GANG Act will effectively strengthen the ability of prosecutors at the local, state, and federal level to prosecute violent street gangs, and it will give state and local governments the resources they need to protect witnesses and prevent youth from joining gangs in the first place. This bill achieves these important goals without increasing any mandatory minimum sentences, which conservation jurists such as Justice Anthony Kennedy have criticized as "unfair, unjust, unwise." It also does not unnecessarily expand the federal death penalty-a measure which has been included in other federal gang legislation but is opposed by the Leadership Conference on Civil Rights, NAACP, ACLU, and National Association of Criminal Defense Lawyers.

Finally, the Juvenile Justice and Delinquency Prevention Coalition has raised the following concerns regarding federal gang legislation that would allow more juveniles to be prosecuted as adults in the federal system: "[T]he fact remains that transfer of youth to the adult system, simply put, is a failed public policy. Comprehensive national research on the practice of prosecuting youth in the adult system has shown conclusively that transferring youth to the adult criminal justice system does nothing to reduce crime and actually has the opposite effect. In fact, study after study has shown that youth transferred to the adult criminal justice system are more likely to re-offend and to commit more serious crimes upon release than youth who were charged with similar offenses and had similar offenses histories but remained in the juvenile justice system. Moreover, national data show that young people incarcerated with adults are five times as likely to report being a victim of rape, twice as likely to be beaten by staff and 50 percent more likely to be assaulted with a weapon than youth held in juvenile facilities. A Justice Department report also found that youth confined in adult facilities are nearly 8 times more likely to commit suicide than youth in juvenile facilities."

In light of these concerns, the ANTI-GANG Act provides Congress with the necessary data to decide whether to expand the federal role in prosecuting juvenile offenders, by requiring a comprehensive report on the current treatment of juveniles by the states and the capability of the federal criminal justice system to take on these additional cases and house additional prisoners. The American Bar Association has written that this study is "the more prudent course of action at this time."

The ANTI-GANG Act is a comprehensive, common-sense approach to fight gang violence. I urge my colleagues to join me in support of this important legislation.

Mr. President, I ask unanimous consent that a summary of the bill be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

THE AMERICAN NEIGHBORHOODS TAKING THE INITIATIVE-GUARDING AGAINST NEIGHBORHOOD GANGS (ANTI-GANG) ACT

OVERVIEW
The American Neighborhoods Taking the Iniative-Guarding Against Neighborhood Gangs (ANTI-GANG) Act of 2004 is a comprehensive, tailored bill that will help state and local prosecutors prevent, investigate, and prosecute gang crimes in their neighborhoods. This bill contains four major provisions:

(1) It gives state and local prosecutors the tools they need and have specifically requested of Congress to combat violent gangs by authorizing $52.5 million for the cooperative prevention, investigation, and prosecution of gang crimes; $20 million for technology, equipment, and training to identify gang members and violent offenders and to maintain databases to facilitate coordination among law enforcement and prosecutors; $60 million for the protection of witnesses and victims of gang crimes; and $40 million for grants to develop gang prevention, research, and intervention services.

(2) It replaces the current provision on criminal street gangs in federal law, seldom-used penalty enhancement, with a stronger measure that criminalizes participation in criminal street gangs, recruitment and retention of gang members, and witness intimidation. The ANTI-GANG Act targets gang violence and gang crimes in a logical, straightforward manner.

(3) It will provide Congress with the necessary data to decide whether to expand the federal role in prosecuting juvenile offenders by requiring a comprehensive report on the current treatment of juveniles by the states and the capabilities of the federal criminal justice system to take on these additional cases and house additional prisoners.

(4) It promotes the recruitment and retention of highly-qualified prosecutors and public defenders by establishing a student loan forgiveness program modeled after the current program for federal employees.

The ANTI-GANG Act will effectively strengthen the ability of prosecutors at the local, state, and federal level to prosecute violent street gangs, it will give state and local governments the resources they need to protect witnesses and prevent kids from joining gangs in the first place. This bill achieves these important goals without increasing any mandatory minimum sentences (which conservative jurists such as Justice Anthony Kennedy have criticized as "unfair, unjust, unwise"). It also respects the traditional principles of federalism, by requiring certification by the Department of Justice before any prosecution under this bill may be undertaken in federal court and by not unnecessarily expanding the federal death penalty.

SECTION-BY-SECTION SUMMARY OF THE ANTI-GANG ACT
Title I-Criminal Street Gangs

Sec. 101. Criminal Street Gangs-Definitions. Defines a criminal street gang as a preexisting and ongoing entity (e.g., having already committed crimes); targets violent criminal street gangs by requiring that at least one predicate gang crime be a violent gang crime; establishes evidentiary relevance of gang symbolism in prosecutions; and allows federal prosecution of neighborhood gang activity when those activities substantially affect interstate commerce.

Sec. 102. Criminal Street Gangs-Prohibited Acts, Penalties, and Forfeiture. Creates three new federal crimes to prosecute cases involving violent criminal street gangs. (1) It prohibits the recruitment and forced retention of gang members, including harsher penalties if an adult recruits a minor or prevents a minor from leaving a criminal street gang. (2) It prohibits participation in a criminal street gang if done with the intent to further the criminal activities of the gang or through the commission of a single predicate gang crime. (3) It prohibits witness intimidation and tampering in cases and investigations related to gang activity. Before the federal government may undertake a prosecution of these offenses, the Department of Justice must certify that it has consulted with state and local prosecutors before seeking an indictment and that federal prosecution is "in the public interest and necessary to secure substantial justice."

Sec. 103. Clerical Amendments.
Sec. 104. Conforming Amendments.

Sec. 105. 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 (HIIGAAs) and provide assistance in the form of criminal street gang enforcement teams made up of local, State, and Federal law enforcement authorities to investigate and prosecute criminal street gangs in each designated area. The ANTI-GANG bill also allows for HIIGAAs to be integrated with High Intensity Interstate Drug Trafficking Areas (HIIDTAs), to avoid conflicts and bureaucratic morasses in those areas where the two entities would coexist. Subsection © authorizes funding of $40 million for each fiscal year 2005 through 2009.

Sec. 106. Gang Prevention Grants. Requires the Office of Justice Programs of the Department of Justice to make grants to States, units of local government, tribal governments, and qualified private entities to develop community-based programs that provide crime prevention, research, and intervention services designed for gang members and at-risk youth. Subsection (f) authorizes $40 million for each fiscal year 2005 through 2009. No grant may exceed $1 million nor last for any period longer than 2 years.

Sec. 107. Gang Prevention Information Grants. Requires the Office of Justice Programs of the Department of Justice to make grants to States, units of local government, tribal governments to fund technology, equipment, and training for state and local sheriffs, police agencies, and prosecutor offices to increase accurate identification of gang members and violent offenders and to maintain databases with such information to facilitate coordination among law enforcement and prosecutors. Subsection (f) authorizes $20 million for each fiscal year 2005 through 2009. No grant may exceed $1 million nor last for any period longer than 2 years.

Sec. 1089. Enhancement of Project Safe Neighborhoods Initiative to Improve Enforcement of Criminal Laws Against Violent Gangs. Expands the Project Safe Neighborhood program to require United States Attorneys to identify and prosecute significant gangs within their district; to coordinate such prosecutions among all local, State, and Federal law enforcement agencies; and to coordinate criminal street gang enforcement teams in designated "high intensity" interstate gang activity areas. Subsection (b) authorizes the hiring of 94 additional Assistant United States Attorneys and funding of $7.5 million for each fiscal year 2005 through 2009 to carry out the provisions of this section.

Sec. 109. Additional Resources Needed by the Federal Bureau of Investigation to Investigate and Prosecute Violent Criminal Street Gangs. Requires the Federal Bureau of Investigation to increase funding for the Safe Streets Program and to support the criminal street gang enforcement teams in designated high intensity interstate gang activity areas. Subsection (b) authorizes $5 million for each fiscal year 2005 through 2009 to expand the FBI's Safe Streets Program.

Sec. 110. Expansion of Federal Witness Relocation and Protection Program. Amends 18 U.S.C. § 3521(a)(1), which governs the Federal witness relocation and protection program, to make clear that the Attorney General can provide for the relocation and protection of witnesses in State gang, drug, and homicide cases. Current law authorizes Federal relocation and protection for witnesses in State cases involving "an organized criminal activity or other serious offense."

Sec. 111. Grants to States and Local Prosecutors to Protect Witnesses and Victims of Crime. Authorizes the Attorney General to make grants available to State and local prosecutors and the U.S. Attorney for the District of Columbia for the purpose of providing short-term protection to witnesses in cases involving an organized criminal activity, criminal street gang, serious drug offense, homicide, or other serious offense. State and local prosecutors will have the option of either providing the witness protection themselves or contracting with the United States Marshals Service for use of the Federal witness protection and relocation program. Subsection (d) authorizes $60 million for each fiscal year 2005 through 2009 to fund the program. By providing significantly increased resources and flexibility for State and local prosecutors, this provision responds in a meaningful way to the need for effective witness protection emphasized by prosecutors during the September 17, 2003, hearing in the Judiciary Committee.

Sec. 1112. Witness Protection Services. Amends 18 U.S.C. § 3526 to allow States to obtain the temporary protection of witnesses in State gang cases through the Federal witness relocation and protection program, without any requirement of reimbursement for those temporary services. Currently, complex reimbursement procedures deter State and local prosecutors from obtaining witness protection services from the Federal government in emergency circumstances.

Title II-Related Matters Involving Violent Crime Prosecution
Sec. 201. Study on Expanding Federal Authority for Juvenile Offenders. This section requires the General Accounting Office to do a comprehensive report on the advantages and disadvantages of increasing Federal authority for the prosecution of 16- and 17-year-old offenders. Some have proposed indicting and prosecuting more juveniles in Federal courts as a step in combating gang violence. Although there is insufficient data to support this proposition, it is appropriate for the GAO to review the current treatment of such offenders by the States and the capability of the Federal criminal justice system to take on these additional cases and house additional prisoners. With this review, Congress can knowledgeably consider whether to expand the Federal role in prosecuting juveniles.

Sec. 202. Prosecutors and Defenders Incentive Act. This section establishes a student loan repayment program for prosecutors and public defenders that is modeled after the program currently available to federal employees. This would increase the ability of federal, state, and local prosecutors and public defenders to recruit and retain highly-qualified attorneys. Attorneys in this program must agree to serve for a minimum of three years. Participants can receive up to $10,000 per year and a total of up to $60,000; these amounts are identical to the limitations in the program for federal employees. Subsection (h) authorizes $25 million for fiscal year 2005 and such sums as may be necessary for each succeeding fiscal year.