Federal Crime Control Issues in the 111th Congress
Released: 2011-01-25T00:00:00

Introduction

The prevention and control of domestic crime has traditionally been a responsibility of state and local governments, with the federal government playing more of a supportive role. As crime rates continued to increase throughout the 1960s, 1970s, and 1980s, the federal government increased its involvement in domestic crime control efforts. It did so primarily through a series of grant programs to encourage and assist states and communities in their efforts to control crime, as well as through the expansion in the number of offenses that could be prosecuted in the federal criminal justice system.

Over a 10-year period (1984-1994), Congress enacted five major anti-crime bills and increased appropriations for federal assistance to state and local law enforcement agencies. As a result, the Federal Bureau of Investigation (FBI) had seen an expansion of its role in fighting domestic crime as Congress began to add more crimes to the federal criminal code that were previously under the sole jurisdiction of state and local governments. Within the past several years, however, some federal assistance to state and local law enforcement has declined, and the FBI has refocused its resources on countering terrorism as federal law enforcement efforts since September 11, 2001 (9/11), have focused primarily on protecting the nation against terrorist attacks.

A major policy question facing Congress is, What should be the role of the federal government in crime control? More specifically, what should its role be in controlling violent crime, combating fraud, setting drug control policy, and overseeing Department of Justice (DOJ) grant programs?

Crime Statistics2

As mentioned, the prevention and control of domestic crime has conventionally been under the purview of state and local governments. However, as the violent crime rate increased in the 1960s, 1970s, and 1980s, and some questioned the ability of state and local law enforcement to combat the growing problem with limited resources at their disposal, the federal government began to take a more direct role in crime control. The following section discusses the trends in the nation's violent and property crime rates over the past two decades.

The FBI's Uniform Crime Report (UCR) program compiles data from monthly reports transmitted directly to the FBI from approximately 17,000 local police departments or state agencies. Of interest to lawmakers are the two indices of crimes that are the basis of the UCR. The FBI collects data on the number of offenses known to police, the number and characteristics of persons arrested, and the number of "clearances" for eight different offenses, collectively referred to as Part I offenses. Part I offenses include murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and arson. Within the Part I offenses, crimes are categorized as either violent or property crimes. Violent crimes include murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. Property crimes include burglary, larceny-theft, motor vehicle theft, and arson. The FBI also collects data on the number of arrests made for 21 other offenses, known as Part II offenses. The UCR collects crime data from the various state and local law enforcement agencies and presents it in a variety of formats in the UCR. The data on which the crime rates are derived are offenses reported to the police (as opposed to arrests made by police or cases cleared by the police).

Violent Crime Rate

Based on analysis of the UCR data, the national violent crime rate began to increase sharply in the 1960s. The increase continued throughout the 1970s and into the early 1990s, peaking in 1991. By the mid-1990s, however, the violent crime rate began to decline, as illustrated in Figure 1 . The violent crime rate continued to decline into the new millennium, and despite slight increases in 2005 and 2006, it declined once again in 2007. This decline continued through 2009, with the violent crime rate at its lowest level since the mid-1970s.

Property Crime Rate

Similar to the general decline in the national violent crime rate since the mid-1990s, the national property crime rate has trended downward as well, as illustrated in Figure 2 . The property crime rate began to steadily decline in the early 1990s, increased slightly in 2001, and then continued to decline through 2009.

Despite the declining crime rates, Congress has continued to debate measures that may further decrease both violent and non-violent crime as well as provide assistance to state and local criminal justice systems. Following is a discussion of selected crime-related issues that were of concern for the 111 th Congress.

Violent Crime Control

The national violent crime rate has generally decreased since the mid-1990s. However, interest in combating violent crimes across the United States has remained. Although policy makers have been concerned with all forms of violent crimes, the selected issue areas discussed below were of interest to the 111 th Congress. One of the primary questions spanning these issues was, What should be the federal government's role in combating various crimes? Another general issue was whether Congress has provided the best regulatory, investigative, and prosecutorial tools to counter violent crime around the country.

Hate Crimes6

Current law defines hate crimes to include any crime against either person or property, in which the offender intentionally selects the victim because of the victim's actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation. Although hate crimes may fall under the categories of both violent and property crimes, policy makers tend to focus more attention on those hate crimes that may be classified as violent crimes. Current federal hate crime law also prohibits the use of force, or threat of force, to injure, intimidate, or interfere with any persons for reasons related to their race, color, religion, or national origin, while they are engaged in certain federally protected "civil rights" activities. In 2009, there were 6,604 reported incidents of hate crimes. For statistical purposes, a crime is labeled a hate crime if there is sufficient evidence to lead a reasonable person to conclude that the offender's actions were motivated, in whole or in part, by his or her bias.

One issue the 111 th Congress faced was whether federal jurisdiction over hate crimes should be broadened by adding federal penalties for hate crimes that currently fall under the jurisdiction of state, tribal, local, and municipal authorities. Although some argue that greater federal involvement would ensure that hate crimes are systematically addressed, others contend that additional federal penalties for hate crimes would be redundant and largely symbolic, as penalties for those crimes already exist under state law. Another issue was whether the definition of hate crimes should be broadened to include crimes motivated by additional biases, such as a bias toward gender identity. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Division E of P.L. 111-84 , among other things, includes gender identity in the list of bias-motivated hate crimes. In addition to questioning whether federal hate crime jurisdiction should be broadened, another issue that Congress considered was whether there should be greater federal assistance to state and local law enforcement in not only investigating and prosecuting hate crimes, but in categorizing and reporting them as well. Finally, Congress also considered whether to include crimes against the homeless population in the crime data collected by the Federal Bureau of Investigation.

Gangs14

Similarly to hate crimes, gang crimes may be classified as both violent crimes and property crimes. In discussing gang crimes, however, policy makers have tended to focus attention on strategies to curb violent gang crimes rather than gang-related property crimes. According to a survey of law enforcement agencies on the characteristics of youth gangs conducted by the National Youth Gang Center (NYGC), gang activity is pervasive in both urban and rural America. According to the NYGC, an estimated 774,000 gang members and 27,900 gangs were active across the United States in 2008. Of the cities, suburban areas, towns, and rural counties surveyed, about 32.4% experienced gang problems in 2008.

Policy makers have long considered solutions to youth gang violence that include a combination of prevention, intervention, and suppression efforts. However, as gang violence increases, some are calling for different approaches to the issue. For example, policy makers in the 111 th Congress considered whether to create new or expand on existing grant programs to provide funding for research on gang prevention. They also considered grant programs that could provide funding for gang-specific investigations and prosecutions. Also, the 111 th Congress debated whether or not it would be necessary or beneficial to include gang-specific provisions in the Racketeer Influenced and Corrupt Organization (RICO) Act in order to aid in prosecuting gang members for specified gang crimes. Congress did not choose to expand federal authority to prosecute juveniles, including gang members, as adults. Another issue that the 111 th Congress considered was whether to amend the federal criminal code to update the definition of a gang as well as criminalize specified gang crimes. The Government Accountability Office (GAO), for instance, reports that a uniform definition of "gangs" across federal investigative agencies may enhance coordination of gang-related data collection across agencies.

Gun Control24

Statistics on crime and mortality are often used in the gun control debate. For instance, in 2009, 67% of homicides with a known cause were firearm-related. Congress has continued to debate the efficacy and constitutionality of federal regulation of firearms and ammunition, with advocates arguing both for and against greater gun control. Proposals to legislatively restrict the public availability of firearms have raised various crime-related questions, including whether increased regulation of firearm commerce or ownership might significantly affect the rates of violent crimes such as homicide, assault, and robbery.

There were several firearm-related issues that the 111 th Congress considered. One was the federal government's role in legislating on individuals' rights to carry concealed weapons. A second issue was whether background check records for approved firearm transactions should be retained to enhance terrorist screening. Another issue revolved around whether there should be further regulations on certain firearms previously defined in statute as "assault weapons" or on certain long-range .50 caliber rifles. Yet another issue Congress considered was whether to require background checks for private firearm transfers at gun shows.

Combating Fraud and Theft

Policy makers have been concerned with the prevalence and types of fraud committed across the country. In response, the 111 th Congress passed the Fraud Enforcement and Recovery Act of 2009 (FERA), in part to address mortgage, securities, commodities, and financial fraud, among other things. The broad policy issue cross-cutting various types of fraud and theft was whether the federal response has or can effectively keep pace with the evolving nature of these crimes. As the nature of these crimes changes, how can policy makers provide the necessary resources and update the criminal statutes to allow for effective investigation and prosecution of these crimes?

Identity Theft31

Identity theft is the fastest growing type of fraud in the United States, and the Federal Trade Commission (FTC) estimates that identity theft costs consumers about $50 billion annually. In 2009, about 11.1 million Americans were reportedly victims of identity theft—an increase of about 12% over the approximately 9.9 million who were victimized in 2008. In addition, identity theft is often interconnected with various other criminal activities, ranging from credit card and bank fraud to immigration and employment fraud. Consequently, the 111 th Congress debated the federal government's role is in preventing identity theft and its related crimes, relieving the effects of identity theft on its victims, and providing the criminal justice system with effective tools to investigate and prosecute identity thieves.

In preventing personal information from falling into the hands of identity thieves, one issue that the 111 th Congress confronted was whether it is the federal government's role to regulate the availability of personally identifiable information (social security numbers, in particular) in the public, as well as in the private, sector. One policy option considered was to provide specific agencies with the rulemaking authority to set standards for the sale of personally identifiable information in the private sector. Policy makers also considered prohibiting the use of personally identifiable information on government documents, such as Medicare identification cards, and Congress passed the Social Security Number Protection Act of 2010 ( P.L. 111-318 ) that prohibits the display of social security numbers on government-issued payment checks. Another issue at hand was that in the instance of a data breach, should there be more strict requirements regarding the reporting of the data breach? For instance, policy makers considered whether to require the reporting of data breaches to law enforcement or to individuals whose personal information may have been compromised. Another issue that the 111 th Congress considered in attempt to punish or deter identity thieves was whether the list of predicate offenses for aggravated identity theft should be expanded to include additional crimes commonly facilitated by identity theft.

Organized Retail Crime

It has been estimated that organized retail crime (ORC) may cost the retail industry over $30 billion dollars each year. In addition to the lost income to retailers, ORC can pose both economic and health risks to society; states suffer lost tax revenue, and individuals may face health risks from consuming stolen items such as baby formula or over-the-counter medication that have not been stored properly by ORC thieves. Stolen goods are resold in both national and international, physical and Internet-based marketplaces.

Although there is little debate that ORC is a federal issue—thieves cross state lines to commit crimes and store goods, and they resell the illegally obtained items without regard for district lines—the debate arises over the federal government's role in combating it. In particular, the 111 th Congress questioned whether there are currently effective investigative and prosecutorial tools in place to combat ORC or whether the criminal code should be amended to include specific provisions criminalizing it. Another question debated was whether the federal government should play a role in regulating online marketplaces to ensure that law enforcement is able to obtain information to investigate potentially fraudulent sellers.

Drug Control

The National Drug Intelligence Center (NDIC) has indicated that illicit drugs—particularly their trafficking and abuse—remain a significant threat to American society. Drugs are involved in other violent and non-violent crimes; as of 2009, about 53% of the total federal prison population had been convicted and sentenced for drug-related offenses. Policy makers have been concerned with combating drug crimes and sentencing offenders. Questions remain, however, whether current drug policies are effective in reducing domestic production, trafficking, and use of illicit drugs.

Drug trafficking organizations (DTOs) pose economic and social threats to the United States, and according to the NDIC, Mexican DTOs are now the largest drug trafficking threat. The NDIC estimates that Mexican DTOs maintain drug distribution networks, or supply drugs to distributors, in at least 230 U.S. cities. Some areas of the country have experienced higher incidences of drug trafficking than others, and currently 14% of U.S. counties are designated as High Intensity Drug Trafficking Areas (HIDTAs). The HIDTA Program provides additional federal resources to areas plagued by drug trafficking and promotes multilateral coordination among drug control organizations. Policy makers in the 111 th Congress questioned whether to designate (via legislation) more counties as part of HIDTAs. Other policy options debated for including additional areas with an increased prevalence of drug trafficking into the HIDTA program included adjusting the criterion for inclusion into the HIDTA program or adjusting the unit of inclusion into the program.

Policy makers remained concerned that escalating drug-related violence in Mexico along the U.S.-Mexico border may spill over in to the U.S. For example, there have been anecdotal reports of increased drug-related violence, such as kidnappings related to drug smuggling (also related to other crimes such as human smuggling). Issues facing the 111 th Congress included whether to authorize additional funding for increased law enforcement initiatives along the Southwest border as well as whether to direct the formulation of border task forces specifically to address drug-related violence. In addition, Congress considered whether to increase penalties for the manufacture, possession, distribution, or trafficking of illegal substances.

Sentencing Reform50

Judges have discretion in sentencing defendants unless the offense carries a mandatory sentence, as specified in the law. While some view this as an opportunity for federal judges to take into consideration the circumstances unique to each individual offender, thus handing down a sentence that better fits the offender, others fear that such discretion may result in unwarranted disparity and inconsistencies in sentencing across judicial districts such as those that led to the original enactment of federal sentencing guidelines in 1984. With respect to sentencing, several issues confronted the 111 th Congress. As discussed below, one issue was whether Congress should eliminate or reduce the disparity in federal sentences for crack and powder cocaine violations. Another issue was whether the federal prison system should allow for early release for certain prisoners under certain circumstances.

Crack/Powder Cocaine Sentencing Disparities

Mandatory minimum sentencing laws require offenders to be imprisoned for a specified period of time for committing certain types of crimes. The intent of mandatory minimum sentencing is to punish the most serious offenders by incarcerating them for long periods. Proponents contend that mandatory minimums decrease crime, serve as deterrents, and ensure certainty in the criminal justice system. Critics, however, argue that the laws are disproportionately applied to non-violent, minority offenders. One overarching issue facing Congress was whether the mandatory sentences imposed on offenders are the most appropriate sentences. While the debate over mandatory minimum sentences tends to focus on non-violent, drug offenses, it is especially apparent with the crack-versus-powder cocaine sentencing disparities.

Congress, through the Violent Crime Control and Law Enforcement Act of 1994, directed the U.S. Sentencing Commission (the Commission) to study the difference in penalties for powder and crack cocaine offenses. In 1995, 1997, 2002 and 2007, the Commission reported to Congress on the disparity in penalties for crack and powder cocaine offenses. In the first report, the Commission called for Congress to equalize the quantities between crack and powder cocaine that trigger a mandatory minimum penalty. However, in their 1997, 2002, and 2007 reports, the Commission recommended that the five-year and 10-year "trigger" quantities for crack cocaine be raised, but not to the level of powder cocaine. While the penalties remained in place at the federal level, some states have begun to take measures to ameliorate the discrepancies in state law. In November 2007, the Commission enacted a retroactive amendment lowering the recommended penalties for crack cocaine offenses, but it does not impact the mandatory minimum penalties that are in current law. The 111 th Congress passed the Fair Sentencing Act of 2010 ( P.L. 111-220 ), reducing the statutory 100:1 ratio in crack/powder cocaine quantities that trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1) to a ratio of 18:1. It also removes the mandatory minimum five-year sentence for simple possession of crack cocaine.

Early Release

As Congress addresses issues related to the incarceration of non-violent drug offenders and increased overcrowding in federal prisons, one option that has been receiving considerable attention is early release. In 1984, parole was eliminated in the federal criminal justice system, pursuant to the Sentencing Reform Act of 1984. As a result, the majority of federal inmates are serving their sentences in full. One question raised in the 111 th Congress was whether there should be some form of early release for federal prisoners. Another consideration for the 111 th Congress involved the mechanism by which early release should be determined; possible options included expanded good time credit or credit from employment or service while in prison.

A second issue that confronted the 111 th Congress surrounded juvenile prisoners sentenced to life in prison without the possibility of parole. Some have argued that juveniles committing adult crimes should receive the same sentences as adults committing the same crimes. Others, however, have argued that juveniles should not be sentenced to life in prison without the possibility of parole for a variety of reasons, including the cognitive differences between adults and juveniles. Because it ordinarily defers to state juvenile authorities, the federal government has a limited role in administering juvenile justice. However, the federal government has used grant programs, such as those authorized by the Juvenile Justice and Delinquency Prevention Act, in order to influence the states' juvenile justice systems. In this light, policy makers have deliberated whether to incentivize a system that includes the possibility of early release. One policy option that the 111 th Congress considered was whether to utilize grant monies as incentives for states to establish a review board that could evaluate cases of juveniles sentenced to life in prison and make decisions regarding early release.

State and Local Justice Assistance

Department of Justice (DOJ) grant programs and appropriations is a perennial issue of oversight and legislation for Congress. While some programs provide assistance to state and local law enforcement, others provide assistance to other aspects of justice administration around the country. Many of these grant programs have experienced decreases in funding. One overarching issue that the 111 th Congress considered was the adequacy of funding provided for justice assistance programs. Yet another aspect of these grant programs that Congress considered was their scope, including whether the number of grant programs should be changed or their purpose areas altered.

Community Oriented Policing Services (COPS)67

The COPS program was created by Title I of the Violent Crime Control and Law Enforcement Act of 1994. It aims to increase community policing in part by awarding grants to state, local, and tribal law enforcement agencies for hiring and training new officers as well as for several non-hiring purposes, including developing crime-prevention technology and strategy. The 109 th Congress passed legislation that reauthorized the COPS program through FY2009. In addition to reauthorizing the program, this legislation also consolidated the COPS program into a single grant program. Prior to this, the COPS program consisted of several different subgrant programs.

Several COPS-related issues were before the 111 th Congress. One was whether to reauthorize the COPS program, as the most recent authorization expired at the end of FY2009. Another issue was whether to increase funding levels for the program. The 111 th Congress provided supplemental funding for COPS in addition to its annual appropriation; Congress included a $1 billion appropriation for COPS hiring grants in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ). A third issue was whether the COPS program should be restructured or maintained.

Several bills were introduced in the 111 th Congress that would have modified the COPS program, reauthorized appropriations for the program, or both. Three of these bills— H.R. 1139 , S. 167 , and H.R. 1568 —would have reauthorized appropriations for the COPS program. In addition, H.R. 1139 and S. 167 would have, among other things, changed COPS from a single-grant to a multi-grant program and made the COPS Office an exclusive component of the Department of Justice (DOJ). H.R. 3154 and S. 1424 would have required the Attorney General to award grants to units of local government with high violent crime rates so they could increase the size of their police forces. H.R. 1139 was the only one of the five bills discussed above to receive any legislative action; the bill was passed by the House, but no action was taken by the Senate.

In addition to the $1 billion COPS received under the ARRA, Congress appropriated $550.0 million for COPS for FY2009 under the Omnibus Appropriations Act, 2009 ( P.L. 111-8 ) and $791.6 million for FY2010 under the Consolidated Appropriations Act, 2010 ( P.L. 111-117 ).

Juvenile Justice71

As more focus is being placed on young offenders, some have questioned the way in which the United States treats this population in the nation's criminal justice systems. Over the past 30 years, the juvenile justice system has generally shifted from a focus on rehabilitation to a greater focus on holding juveniles accountable for their actions. In a larger sense, this is the underlying tension that drives the national debate surrounding the juvenile justice system: rehabilitation versus retribution. This debate has been in focus again because authorization for the various Juvenile Justice Delinquency and Prevention Act (JJDPA) provisions expired in FY2007 and FY2008. The last time the JJDPA was reauthorized in 2002, Congress restructured many of the grant programs aimed at preventing juvenile delinquency; a large number of smaller grant programs were repealed, and most of their purpose areas were consolidated into one large block grant requiring accountability and graduated sanctions. Many of the programs that were repealed, however, continue to receive annual appropriations even as the overall juvenile justice appropriation has decreased by about 25% since FY2002.

A core issue in the larger juvenile justice debate is whether rehabilitation should be the driving theme in the handling and processing of young offenders through the criminal justice system, or whether a more punitive approach that emphasizes young offenders' responsibility for the crimes they commit should be the focus. In addition, when considering the possible reauthorization of the JJDPA, the 111 th Congress also debated the adequacy of existing grant programs and whether new grant programs should be enacted.

Witness Protection Program

While the crime rates have generally tended to decrease in recent years, certain jurisdictions have seen an uptick in their crime rates, especially the violent crime rate. In an effort to address the issue, in part, some have called for the establishment of a grant program that would provide funding to states and localities to establish or maintain programs that provide protection or assistance to witnesses involved in homicide, serious violent felony, or serious drug cases.

H.R. 1741 , the Witness Security and Protection Grant Program Act of 2010, would have, among other things, created a grant program to provide funding to state, tribal, and local governments to establish or maintain witness protection programs for witnesses in cases involving homicide, a serious felony or drug offense, or gangs or organized crime. The bill was passed by the House and referred to the Senate by the Judiciary Committee. The full Senate did not consider the bill.

Criminal Justice System Review

Partly in response to the United States having the highest reported incarceration rate in the world, legislation was introduced in the 111 th Congress that would have established a commission to undertake a comprehensive review of the U.S. criminal justice system. The National Criminal Justice Commission Act of 2010 ( H.R. 5143 , S. 714 )—passed by the House—would have, among other things, established a 14-member commission to evaluate costs, practices, and policies of federal and state criminal justice systems around the country. Upon completion of the review, the commission would have been charged with providing recommendations to Congress regarding potential policy changes to reduce incarceration rates, decrease prison violence, improve prison administration, utilize proven strategies to reduce criminal behavior, bolster reintegration of ex-offenders, reevaluate criminalization of and treatment for selected drug-related crimes, improve treatment for mental illness, and enhance law enforcement response to criminal organizations.