Over the years, legislatures across the country have rushed to pass gang violence prevention laws to appear tough on crime. Recently, the Kentucky legislature joined the cause, and on the last day of the session, passed House Bill 169, the Gang Violence Prevention Act.
The proponents claim the Act will somehow miraculously prevent both gangs and the increase in violent crime associated with gangs in Kentucky.
One is left to wonder exactly how words on a piece of paper which threaten an increased criminal sentence for a gang related crime will deter a single gang member from committing a crime or, for that matter, any other criminal. Think about it for a moment. Consider that Kentucky still has the death penalty available as punishment for certain crimes. Can anyone point to a single case which would support a conclusion that the potential of a death sentence has deterred a single criminal in Kentucky from murdering someone? Maybe, but probably not!
If gang violence prevention laws are so effective, then explain the reason the federal “Criminal Street Gangs” statute has only been used once as a penalty enhancement since it was enacted in 1994? Could it just be that the only contribution that anti-gang legislation has is that it provides politicians who vote for similar laws with a campaign soundbite which allows them to brag to their constituents that they are somehow tougher on crime than anyone else?
One important matter which has been ignored in the debate over Kentucky’s gang violence prevention act is whether the law is even constitutional. Maybe our legislators should have considered Tennessee’s experience and experiment with a similar law. In 2012, Tennessee passed its version of a gang violence prevention law which resulted in enhanced sentences for hundreds of criminals prosecuted because of their gang affiliations. After four years, Tennessee’s anti-gang statute was struck down and held to be unconstitutional. As a result, Tennessee courts had to conduct new sentencing hearings for hundreds who had been sentenced under Tennessee’s anti-gang law.
Not surprisingly, the Tennessee court referenced a 1961 decision of the United States Supreme Court which held, “…guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ..., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause....” In a nutshell, courts across the country have concluded that guilt by association is not a crime.
So, before Kentucky moves forward with its Gang Violence Prevention Act, it might just be worth taking a moment to consider whether its law can even pass constitutional muster. Otherwise, Kentucky should be prepared to spend millions of dollars to enforce a law which likely does nothing more than allow politicians to appear tough on crime. In the end, there are better constitutional ways to enhance sentences for convictions of crimes in Kentucky which would require Kentucky lawmakers to simply change the statutory maximums for each of Kentucky’s listed criminal offenses.
Like so many other matters which were considered and passed during this past legislative session, why would any of us want our lawmakers to take time from their busy schedules to consider whether a law is constitutional before it is passed and signed by the governor? Why should any of us really care whether the law is constitutional? This is especially true when we consider that it took the courts in Tennessee four years to hold its gang violence prevention law unconstitutional which means that many of those responsible for Kentucky’s gang violence prevention law will not even around four years from now. Of course, this is just another example of Kentucky politicians kicking the can down the road for another generation of lawmakers to correct.
While I usually conclude my columns with an invitation to join me on my imaginary mountaintop to help me shout as loudly as possible on the issue of the day, these past few weeks have left me with an understanding that regardless of whether anyone joins me on my imaginary mountaintop, or joins me in the halls of the Capitol building, many Kentucky politicians do not care, or will not listen anyway.
Mark Wohlander, a former FBI agent and federal criminal prosecutor, practices law in Kentucky.
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