Mr. Walsh delivered this testimony before the Subcommittee on Crime, Terrorism and Homeland Security of the Committee on the Judiciary of the United States House of Representatives on October 2, 2007.

Chairman Scott, Ranking Member Forbes, and members of the committee and subcommittee, thank you for the opportunity to speak today on the subject of a proper and effective federal role in the prevention and elimination of gang-related crime. In my allotted time, I will touch briefly on two topics: the constitutional principles of federalism that apply to the criminalization of gang-related conduct and the effective federal funding of programs to reduce and prevent gang-related crime.[1]

My name is Brian Walsh, and I am the Senior Legal Research Fellow in The Heritage Foundation's Center for Legal and Judicial Studies. I direct Heritage's projects on countering the abuse of the criminal law and criminal process, particularly at the federal level. My work also emphasizes constitutional issues, such as the protection of civil liberties in national security and homeland security measures.

Violent street crime committed by gang members is a serious problem in many states. But turning crimes that are fundamentally local in nature into federal crimes is not the solution. Approximately 95 percent of U.S. criminal investigations and prosecutions are conducted not by federal law enforcement but by law enforcement at the state and local levels.[2] Unjustified federal intervention against "gang crime" would detract from the most effective anti-gang enforcement strategies available to state and local law enforcement officials, that is, the very same officials who carry out the vast majority of anti-gang efforts.

The federal government has an important role to play in combating gang-related crime. But that role is limited by the Constitution and should be further confined to developing and funding programs that (1) carry out traditional federal functions, (2) are carefully crafted and evaluated to ensure they achieve their stated goals, and (3) include sufficient oversight and auditing to minimize waste and abuse.

On several occasions in recent Congresses, Members of Congress have proposed broad bills that attempt to federalize "gang crime,"[3] conduct which, in most instances, is nothing other than ordinary street crime.[4] Two of the most recent examples of such legislation--the Gang Abatement and Prevention Act of 2007 (S. 456), which passed the Senate last month, and a related bill in the House of Representatives, the Gang Prevention, Intervention, and Suppression Act (H.R. 3547)--would effectively transform state-law crimes into federal offenses and dramatically increase federal penalties for existing federal offenses that the bills characterize as "gang crimes." The bills also include hundreds of millions of dollars in spending on new and expanded gang prevention programs.[5]

The federal criminal provisions in these legislative proposals would invite serious constitutional challenges. Like their predecessor bills in the House and the Senate, S. 456 and H.R. 3547 may, in many cases, unconstitutionally attempt to extend Congress's powers beyond the limits of the Commerce Clause.[6] The bills incorporate boilerplate language purporting to establish jurisdiction under the Commerce Clause but nonetheless disregard most of the constitutional structure underlying the state and federal criminal justice systems.

Although inappropriate at the federal level, some of the bills' proposals to criminalize or increase penalties for specified gang-related activities might be good ones if introduced in any state legislature, where, as constitutional precedent has long held,[7] criminal law enforcement and crime prevention have traditionally (and most effectively) been handled. New York City and Boston in the 1990s and early 2000s demonstrated that when accountability for law enforcement is increased at the state and local levels, local police officials and prosecutors can make impressive gains against crime, including gang-related crime. By contrast, federalizing authority over crime reduces the accountability of local officials to the public. Human nature being what it is, when it is convenient to do so, a significant percentage of state and local officials can be expected to shift responsibility or (depending on the circumstances) blame to federal law enforcement authorities.

Proposed Legislation Runs Afoul of Recent Supreme Court Precedent

Federal involvement may seem like a good idea whenever some crime or pattern of criminal activity becomes prevalent in several states. But the mere existence of the same crimes or types of crime in multiple states does not alone justify an exercise of federal criminal law. To warrant federal involvement, an activity must fall within Congress's constitutionally granted powers. There are serious reasons to doubt that S. 456 and H.R. 3547 do so.

In 2000, the Supreme Court held that the provision of the Violence Against Women Act at issue in United States v. Morrison[8] was unconstitutional. The federal criminal provisions on which the challenged provision was based exceeded Congress's commerce-clause power. In the course of reaching this holding, the Court affirmed that the Constitution places fundamental limits on the federal legislative power:

Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."[9]

This limitation on Congress's power to legislate is neither arbitrary nor accidental. The Framers crafted it to protect the American people--including those suspected of criminal conduct--from the unchecked power of a centralized national government that would otherwise be all-powerful. As the Court stated, "This constitutionally mandated division of authority 'was adopted by the Framers to ensure protection of our fundamental liberties.'"[10]

No power that civil government commonly uses against its citizens is greater or more prone to abuse than the criminal law and criminal process.[11] This is a compelling reason for crafting any new federal criminal law with great care and attention to the limitations the Constitution places on the legislative power.

S. 456 and H.R. 3547 implicitly acknowledge these limits by purporting to rely on the Commerce Clause for the assertion of federal jurisdiction over crimes that are essentially local in nature. The bills include language purporting to restrict the scope of their central criminal provisions to conduct and activities that "occur in or affect interstate or foreign commerce."[12] But to fall within Congress's power to "regulate Commerce…among the several States," a problem must not merely be common to the states; it must be truly interstate in nature and "substantially affect" interstate commerce.[13] For this reason, Congress's power under the Commerce Clause does not include the authority to federalize most non-commercial street crimes, whether or not they share some minor nexus with interstate commerce. In short, local, violent crime that is not directed at interstate commerce--that is, the sort of crime that is at the heart of most gang-related street crime--is not a proper subject matter for federal legislation.

Although broader and broader readings of the Commerce Clause during the latter part of the 20th century permitted the federal government to regulate more and more economic activity,[14] the Supreme Court has set limits. The Court rejected recent attempts to federalize common street crimes,[15] even ones that have some interstate impact. Yet an expansive (many would say virtually unlimited) interpretation of the Commerce Clause is still employed to justify the creation of many new federal crimes. This expansive interpretation does violence to the original meaning of the Constitution. As Justice Thomas wrote in a concurring opinion in United States v. Lopez, if Congress had been given authority over any and every matter that simply "affects" interstate commerce, most of Article I, Section 8 would be superfluous, mere surplusage.[16]

Both S. 456 and H.R. 3547 attempt to take advantage of a similarly broad and erroneous view of the Commerce Clause by including statements in their findings sections that "gang crime" disrupts communities by reducing property values and inhibiting corporations from transacting business, presumably because safety concerns make an area less attractive. Viewed in the light of recent Supreme Court precedent, this sort of lengthy, attenuated chain of causation is insufficient to establish federal jurisdiction over local crimes.[17]

In Lopez, the Supreme Court expressly rejected the government's "costs of crime" and "national productivity" rationales for asserting federal authority over crime that is essentially local in nature. The government argued that violent crime resulting from the possession of firearms in the vicinity of schools affected interstate commerce by increasing insurance costs nationwide and by reducing interstate travel to locales affected by violent crime.[18] The government further argued that the possession of guns on or near school grounds threatened educational effectiveness, which would reduce productivity of students coming from those schools, which would, in turn, reduce national productivity.[19]

The Court explained that if it were to accept these attenuated chains of but-for reasoning, the Constitution's limits on congressional power would be obliterated:

Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under [these] theories... , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.[20]

Congress's recent proposals to create a new set of federal "gang crimes" have all raised these same constitutional concerns.

S. 456 and H.R. 3547 have attempted to "cure" this problem by asserting that gang presence, intimidation, and crimes "directly and substantially" affect interstate and foreign commerce. But merely saying so does not make it so, and such language adds little or nothing to the constitutional analysis.

In sum, even though several of the criminal provisions in S. 456 and H.R. 3547 include language limiting their own application to criminal street gang activities that "occur in or affect interstate or foreign commerce," the Supreme Court has held that this sort of language is not sufficient to bring an act within the scope of Congress's Commerce power.[21] The regulated act must have more than some effect on interstate commerce; the effect must be a substantial one, and the connection between the regulated act and its substantial effect may not be too attenuated.[22]

In addition to constitutional problems, the bills' extensive and unfocused list of predicate "gang crimes" is not well tailored to the most problematic gang activity. The list of predicate offenses that would give rise to federal gang crime prosecution includes many non-violent offenses, some of which are already federal crimes, such as obstruction of justice, tampering with a witness, misuse of identification documents, and harboring illegal aliens. Regardless of its unlawfulness, such conduct is not specific to criminal street gangs or gang-related crime.

Gang-Crime Prevention Programs

The same constitutional concerns that would arise from the federal criminal provisions in S. 456 and H.R. 3547 do not generally apply to federal expenditures for gang-related programs, including those in Chairman Scott's Youth PROMISE Act (Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education Act). Congress's constitutional power to spend federal funds on programs involving state and local government agencies is broad and includes the authority to impose conditions on grant recipients.

There are, however, pragmatic and sound policy considerations to guide choices among competing proposals for spending programs to reduce state and local crime. To be a prudent use of funds, any federal program should be carefully and thoroughly:

• Targeted to perform a traditional federal function;
• Evaluated to determine whether it is achieving stated goals and the purposes for which it is being funded; and
• Audited to prevent the diversion of funds and other abuses by grant recipients.

In light of these criteria, the best uses of federal funding to fight gang-related crime include programs to research and promote so-called evidence-based crime prevention, that is, crime prevention strategies and methods the effectiveness of which can be verified empirically.[23] Congress should also fund the enforcement of existing federal laws that vindicate inherently federal interests. This should free up state and local resources to be used to combat local street crime. The federal government is, moreover, uniquely positioned to promote sharing among the states of information about gangs and gang members as well as information and analysis regarding the best law enforcement practices for reducing and preventing gang-related crime.

Targeted to Perform a Traditional Federal Function

Although universities, private foundations, and consortiums of state-government agencies should continue to play a central role in promoting research and information-sharing on gang-related crime, the federal government can fulfill an important role in such efforts. The federal government is well situated to collect and rigorously analyze whatever information on gang-related crime is made available by state and local agencies. In addition to disseminating this basic data and analysis, the federal government should promote those policies and innovations that have proven effective in reducing crime. The federal government should help foster and guide standards for identifying and establishing law enforcement best practices for combating gang-related crime--while recognizing that what constitutes best practices may vary by state and region.

One example of a sound federal program is the FBI's National Gang Intelligence Center (NGIC). Created in 2004, the NGIC is intended to help fed­eral, state, and local law enforcement coordinate the collection of intelligence on gangs and then analyze and share the information. If it fulfills its congressional mandate, the NGIC should allow law enforcement to identify and analyze whatever linkages may exist between gang members and gang activi­ties across the nation.

Other proposals would similarly allow Congress to support the fight against gang crime without violating federalism principles. The federal government is well situated to create national databases on gangs and gang-related crime and to gather and disseminate crucial information on gang activities and members. The goal would be to harness the collective knowledge of law enforcement agencies around the country, paying particular attention to those gangs or significant gang members that travel or migrate from state to state. It would be similarly effective and appropriate for the federal government to fund comprehensive studies of the effectiveness of crime and delinquency prevention and intervention strategies. Many states do not have the resources or multistate data to carry out this type of meta-analysis, and such information could be a vital resource in choosing appropriate crime-fighting policies.

Congress should also fund increased federal enforcement of existing laws that are connected to gang-related crime and that are, by nature, federal. The federal government should fund efforts to identify illegal aliens who have been convicted of crimes--including those who are currently in custody--and are thus subject to immediate deportation. Enforcing these federal laws would reduce the pool of potential gang members who are on the streets or in state and local jails and prisons. Currently, state and local jurisdictions also bear a significant financial burden for their efforts detaining illegal aliens until federal immigration officers arrive. Providing federal funding for these detention services would allow state and local governments to spend more of their own money on the prevention and abatement of gang-related crime.

The U.S. Department of Justice's primary mission is to promote and protect interests that are fundamentally federal in nature. The Department's main focus should not be on funding the responsibilities of state and local governments. Federal funding levels for law enforcement should reflect these priorities, and federal funding for state and local law enforcement programs should not be greater than funding for core federal responsibilities.

The federal government's spending priorities for law enforcement in the recent past have been out of balance. At the end of the last decade, for example, some elements of federal funding for law enforcement were weighted too heavily in favor of funding state and local law enforcement.[24] The programs administered by the Justice Department's Office of Justice Programs (OJP) and Office of Community Oriented Policing Services to fund local police officer salaries, programs for state and local juvenile justice, and related programs cost taxpayers approximately $23 billion from FY 1996 through FY 2000. By contrast, Congress appropriated just $1 billion for the Federal Bureau of Investigation's national security and counterterrorism efforts over this same period. The federal government is intended under the Constitution to be the predominant actor in national security investigations and prosecutions.[25] The state governments are independent sovereigns, and they and their constituent governments at the local level should generally be expected to fund and operate their own law enforcement functions.

Crafted and Evaluated to Ensure Achievement of Stated Goals

Preference for funding should be given to those programs that are carefully crafted to implement strategies for crime reduction and crime prevention that have been tested empirically and proven reliable. Congress should set high standards for measuring effectiveness. No one other than the administrators of programs receiving federal grants are well served by standards that are easy to satisfy, either because the standards are too subjective or because they are not sufficiently rigorous to produce meaningful crime reductions.

As in any well-run business, such programs must have measurable results to demonstrate their effectiveness. And the metrics to be used must be standardized if each grantee's performance is to be readily compared with the performance of others. The federal government should also impose meaningful interim benchmarks to ensure that the gang prevention programs it funds are on target to meet the goals for which they were funded.

By contrast, programs that are demonstrably ineffective, that are unproven and unsupported by empirical evidence, or that result in substantial waste should not be funded. Any such programs that already exist should be summarily terminated or, at the very least, should not be given additional funding. Whatever lessons can reasonably be learned from failed programs should be incorporated into the design of any new spending program intended to achieve the same or similar goals.

One current need for gang crime funding is clearly evident: More research needs to be conducted to develop scientific standards for effectiveness of gang-crime prevention programs. In 1997, the Justice Department published a University of Maryland report that compared evaluations of various federal crime programs.[26] After observing that many of the federal government's crime prevention programs as of that date either had been evaluated as ineffective or had never received any meaningful evaluation at all, the report concluded, "By scientific standards, there are very few 'programs of proven effectiveness.'"[27] The federal government thus should emphasize new programs to conduct multiple, independent research projects to study crime prevention. Studies designed to develop and test empirical standards should be given priority for funding.

Programs that improperly measure "intermediate effects" instead of actual prevention should not be funded.[28] The results of such programs tend to be entirely subjective and incapable of being repeated.[29] For example, of little value is a teacher's evaluation that a juvenile's behavior in school "improved" after attending a course intended to increase his sociability and decrease his likelihood of committing criminal or delinquent acts. A subjectively "better" attitude makes little difference if the student committed actual crimes for which the program's evaluation criteria did not account. Tracking official acts of delinquency in and out of school would be a far better measure of the crime prevention effectiveness of the course.

Carefully Audited to Prevent Abuse by Grantees

Any successful crime prevention program requires tight oversight and auditing controls. Without such controls, fraud and outright abuse are not the only possibilities. The funds may be used to supplant current state and local funding, sometimes resulting in less overall spending on the targeted activity.[30]

Even when there is a federal prohibition against supplanting state funding, as there was in the federal Community Oriented Policing Services (COPS) legislation, a lack of federal supervision may still allow state and local governments to use the funds to pay existing personnel. This resulted in several COPS-funded jurisdictions adding no additional police officers, despite promising to do so as a condition of receiving the federal grant money.[31] Even worse, some major jurisdictions took federal grant money for additional officers yet downsized their state-funded police forces.[32] Similar shortcomings of the COPS program have been well documented by the media and independent reports.[33]

Conclusion

Thank you again for the opportunity to address this subject. I look forward to responding to any questions.

Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.