Criminal Gang enhancements

Criminal Gang Enhancements in Sentencing

CRIMINAL GANG ENHANCEMENT

IN SENTENCING

During the time period between the years of 1997 and 1998 legislation was focused on crime and most specifically juvenile crime. The work of Matthews and Ruzicka entitled: "Proposition 21: Juvenile Crime" (2000) published by the Capital Center for Government Law and Policy in a California Initiative Review relates that Proposition 21 had as its aim the amendment of both "the Penal Code and the Welfare and Institution Code" and this was specific to the "procedures used in the treatment of juveniles and adults who commit gang-related felonies." (Matthews & Ruzicka, 2000) According to Matthews and Ruzicka this law would bring about serious changes to the way. Proposition 21 would increase penalties related to street gang participation whether it be graffiti or vandalism. Seven years ago Proposition 21: The Gang Violence and Juvenile Crime Prevention Act was passed by California voters. (Yee, 2007) in the state of California Proposition 21 made California "one of 15 states that allow prosecutors" to make the decision "in cases involving charges of murder, sexual assault, arson, robbery and gang crimes whether the youth will be charged as adults. " (McKim & Rhor, 2007)

According to the work of McKim & Rhor (2007) those opposing this proposition included: "Juvenile-justice advocates, the state public defenders association and juvenile court judges" all of whom believed that juveniles tried in adult courts were more likely to commit crimes again that were the youth tried in juvenile court. According to (McKim & Rhor, 2007) McKim & Rhor state that: "...the U.S. Centers for Disease Control released a study in April 2007 that states conclusions that "teens transferred to the adult justice system are 34% more likely to be arrested again." (McKim & Rhor, 2007) McKim & Rhor (2007) relate that according to Jonathan Laba, deputy director of the Pacific Juvenile Defender Center: "The law violates due process because it vests exclusive discretion in the prosecution to choose whether the child be tried as a minor or an adult -- a decision made with no standards and no opportunity for judicial review." (Yee, 2007) McKim & Rhor (2007) additionally relate the statement of Dan Macallair, executive director of the Center of Juvenile and Criminal Justice in San Francisco who stated: "Because the use of direct file provisions varies by county, Proposition 21 has created a troubling phenomenon. Kids who live in certain counties, simply by geography, are at greater risk for imprisonment for less serious offenses, We've always talked about racial and ethnic disparities; now we need to start talking about geographical disparities." (McKim & Rhor, 2007) Yee introduced a bill earlier this year for elimination of life without parole for juvenile offenders. The work of Gould and Mastrofski entitled: "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution" states that "Democratic societies create a tension between the latitude granted law enforcement officials to intrude into citizens' affairs and the rights of those citizens to be free from state interference. This dilemma is especially poignant in the United States where the Constitution frames the limits on state encroachment." (Gould and Mastrofski, 2003-2004) the work of Gould and Mastrofski asks three questions which are those of: (1) How frequently do patrol officers engage in searches? (2) How often do their searches meet constitutional standards?; and (3) What accounts for the occurrence of unconstitutional searches?" (Gould and Mastrofski, 2003-2004) These authors state that "the police, usually the first agents of the justice system" in dealing with matters of the law "play a crucial role in determining the quality and quantity of justice Americans receive. (Gould and Mastrofski, 2003-2004) in fact, in jurisdictions where police officers are perceived to abide by the rules of law there is more respect for and adherence to the law however, in jurisdictions where police are perceived as being unethical the police are not respected and laws are not followed as in other jurisdictions. There is contemporary research suggesting that police officers have only a vague knowledge of the law relating to search and seizure. These authors further state that there are two studies which show that a significant number of police officers in states with law on warrantless searches and seizures no more restrictive than United States Supreme Court decisions have practically no working knowledge of that law" (Memory, 1988:34)." (Gould and Mastrofski, 2003-2004) a study which soon followed this one replicated this study in its findings. It is related by these authors that while there have been prior studies of police officer behavior and practices these studies have not coded the searches for constitutionality. In a recent study of "both the New York Attorney General's Office and the U.S. Attorney for the Southern District of New York evaluated the stop-and-frisk practices of police officers in New York City with findings that "up to one-seventh of stops failed to meet constitutional standards (Civil Rights Bureau, 1999; as cited in Gould and Mastrofski, 2003-2004) This information was based on interviews with the police officer's in self-reports which goes on to state that there is routine failure on the part of police officers to file the paperwork that is required after having searched or frisked an individual. (Weiser, 2999:A1; as cited in and Mastrofski, 2003-2004) it was stated as being found in the work of a law student from Columbia University in an analysis of police arrest records "at the time of Mapp v. Ohio (1961) due to findings that the rise in discovering evidence in drug cases in 'plain sight' rose 40% making it obvious that officers were coloring their testimony even to the point of falsehoods to gain convictions. (Comment, 1968:94) a line thin has been crossed in the case of the police officer who is following a reward system other than constitutionality and even at the same time believe that the rules are being upheld concerning search and seizure. "Sometimes officers engage in search practices without accurate knowledge of the legal requirements. They may be unaware that certain practices are constitutionally forbidden or that others are permitted (Heffernan and Lovely, 1991; Memory, 1988; as cited in Gould and Mastrofski, 2003-2004) These practices of the police officer are monitored and these authors state that "the organizational 'cocoon' is not impermeable; outside forces may intrude. A relevant consideration is how and how much police adherence to constitutional standards is monitored by the 'courtroom workgroup' (Eisenstein and Jacob, 1977; Eisenstein et al., 1988; as cited in Gould and Mastrofski, 2003-2004) in other words the police officer is monitored by the prosecutor, defense attorney, and judges for constitutional compliance. Furthermore, the public, and powerful political groups seek to alter these laws to their benefit or protection through public outcry of police wrongdoing. (Gould and Mastrofski, 2003-2004; paraphrased) Police conformity with the law is addressed through 'empirical observation' with those observing the officers coding many aspects of that which was observed in a systemic fashion with findings starting that out of 115 suspects in the sample 31% were "searched unconstitutionally." The following chart labeled figure one lists the observations of police officers in this study.

Constitutionality of Police Searches

Source: (Gould and Mastrofski, 2003-2004)

Constitutionality of Police Searches by Arrest of Citation (excluding searches incident to arrest or citation)

Source: (Gould and Mastrofski, 2003-2004)

Constitutionality of Police Searches by Intrusiveness of Search

Source: (Gould and Mastrofski, 2003-2004)

Stated as a disincentive for an officer to violate standards of the constitution is the presence of citizens who are witnessing their practices and could provide courtroom testimony against the officer. Citizen observation of officer's behavior provides a greater incentive for adherence to constitutional standards. (Gould and Mastrofski, 2003-2004 paraphrased) the amount of policing experience also affects the motivation of the police officer in terms of constitutionality of search adherence and the officer is likely to experience shifts "in initiative, energy and motivation...as well." (Ibid) These categories are used:

Rookies - low in knowledge and skill/high in initiative

Veterans: prone to cynicism/know the ropes and how to avoid hassling with management, courts, and the public.

It is pointed out in these study findings that officers with 4-9 years experience who are in the middle years of work experience both have the knowledge to constitutionally conduct search and seizures that are legal and as well, they are "sufficiently motivated to do so." (Gould and Mastrofski, 2003-2004) as one can see in the following results from the study, the police officers were unconstitutional in their practices far too much of the time in search and seizures.

Suspect Searches: Bivariate Distributions

Source: (Gould and Mastrofski, 2003-2004)

Conclusions of this study states that a survey was conducted among those that had contact with police officers showing that 73% of police searches in America resulted from a traffic stop that are viewed as illegitimate by citizens who are searched. Findings of this study state that the constitutional violations were found to be higher in a small number of police officers in this study.

March 20, 2007 press release relates that Arnold Scwarzenegger has endorsed the comprehensive gang legislation introduced by U.S. Senator Dianne Feinstein. The legislation makes the provision of over $ billion in funding "for gang prevention, intervention and law enforcement programs over five years and establishes new crimes and tougher penalties to deter and punish members of illegal street gangs." (Feinstein, 2007) the legislation proposed by Feinstein would make illegal participation in a criminal street gang a federal crime. The legislation criminalizes violent crimes in furtherance or in aid of criminal street gangs and creates a new criminal offense for murder and other violent crimes committed in furtherance of a drug trafficking crime. Under the present law, "a felon's criminal street gang involvement can be treated at most as a sentencing enhancement, adding no more than 10 years to a sentence. This bill establishes far higher penalties for violent gang crimes, including the possibility of life imprisonment without parole for murder, kidnapping, aggravated sexual abuse, or maiming. If the gang crime is a serious violent felony, the criminal can receive up to 30 years in prison. And for other violent gang crimes, the maximum penalty is 20 years in prison." (Feinstein, 2007) This legislation would also create and provide assistance for "High Intensity" Interstate Gang Activity Areas (HIIGAA) which makes it a requirements that the Attorney General "designate certain locations as high intensity interstate gang activity areas, and provides 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 high intensity interstate gang activity area." (Feinstein, 2007) Finally, this legislation authorizes the funding of $500 million over the next five years to provide support for HIIGAA activities including the following:

1) Local Schools, service providers and community and faith leaders with demonstrated success in fighting gangs, would be empowered to work collaboratively with law enforcement in a coordinated approach to fighting gangs, following the successful "Operation Ceasefire" model;

2) a national Research, Evaluation and Policy Institute would also be established to collect, analyze and teach "best practices" for fighting gang violence; and 3) One-half of these dollars - $250 million - will go to prevention and intervention programs. This includes after-school programs and job-training directed toward gang prevention. (Feinstein, 2007)

According to a news release April 5, 2007 Los Angeles City Attorney Rocky Delgadillo today announced a new policy that resulted from the U.S. Attorney's Office in LA to provide the U.S. Attorney's Office with "names of documented gang members convicted of gang injunction violations for the purposes of a residency check." (Velasquez, 2007) Delgadillo stated in the news release: "We have pledged time and again to do absolutely everything we can to fight and crush the gangs who seek to terrorize our neighborhoods," said City Attorney Delgadillo. "We know that many gang members are undocumented immigrants, and we believe it is incumbent upon us to share with federal authorities the names of those gang members convicted of gang injunction violations. We believe this new policy will significantly aid our efforts to get convicted criminal gang members off our streets and out of our communities,...we must meet this growing challenge head on. Time is wasting. And people are dying. Pursuant to this new policy, upon conviction in a court of law for violating the terms of a gang injunction, the City Attorney's Office will forward to federal authorities the names of each convicted gang member. This new policy will enable federal authorities to check the residency status of each convicted gang member to determine the most appropriate course of action, which may include the initiation of deportation proceedings where appropriate." (Velasquez, 2007) Dr. Lewis Yablonsky writes in the work entitled: "An Analysis of Gang Roles and Gang Laws" that he has noted a significant factor that is given consideration in a trial involving gang or a gang member is that individual's specific role in the gang. Yablonsky states that he has delineated five basic types of gang roles and non-roles as follows:

1) "OG's or "Veteranos" are longtime core gangsters dedicated to their gang. They are individuals who have "put in work" and "made their stripes";

2) "Gs" are gangsters who comprise the general troops or soldiers in the gang;

3) "Wannabees" are young interns aspiring to become gangsters;

4) "Gangster-groupies" comprise a relatively new category of youths who do not ordinarily participate in criminal gang activity but gravitate to and apparently enjoy hanging-out with gangsters out of their own ego needs and intrigue with the gangster life-style. They tend to dress and talk like Gs;

5) "Resident Gs" are young men who have grown up in a gang neighborhood. Literally, some of their best friends are Gs. They often hang-out, dress in G. clothes-styles, go to school, and party with Gs from their neighborhood (e.g., Nava). Although they lead a legal and constructive life, they are often identified by the police as gang "Associates." They are often falsely labeled as Gs by police ID as "associates," and their self-concept is that they do not belong to a gang." (Yablonsky, 2007)

According to Yablonsky. The last two categories of youths are "too often caught in the net of a violent gang incident, identified as co-conspirators and become subject to the overkill punishment of imprisonment that is meted out to the more involved gangsters under 'Gang-Enhancement' laws." (2007) Penal Code 186.22, the 'gang-enhancement law' states:

Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code section 186.22..." Criminal street gang means any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of [crime list.] Active participation means that the person (1) must have a current relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical, and (2) must devote all, or a substantial part a [his] [her] time or efforts to the criminal street gang. In order to prove this crime [a gang crime], each of the following elements must be proved: 1. A person actively and currently participated in a criminal street gang; 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and 4. That the person aided and abetted member[s] of that gang in committing the crime[s]." (as cited in Yablonsky, 2007)

Yablonsky states that that "simple membership in a gang does not prove the intent to commit a crime." (2007) the example provided is an opinion handed down in the appeal case: "Superior Courts 95CF2769 and J-161645" in which an Appeal Court Judge stated: "...mere presence at the scene of the crime which does not itself assist the commission of the crime does not amount to aiding and abetting." (Yablonsky, 2007) Stated to be significant as well is the statement in the Appeals Court decision as follow: "Evidence that a person was in the company of or associated with one or more persons alleged or proved to have been members of a conspiracy, is not, in itself, sufficient to prove that such a person was a member of the alleged conspiracy." (Yablonsky, 2007) Another aspect pointed out in the work of Yablonsky is that a gang member may commit a crime that is in no way connected with gang activity participation. Yablonsky concludes that: "a violent act committed by a youth unrelated to his gang affiliation does not warrant the activation of the gang-enhancement law at his trial." (2007)