Criminal Gang Enhancements in Sentencing Term Paper

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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)

Joshua D. Wright states in the work entitled: "The Constitutional Failure of Gang Databases" that in terms of documentation of who is or who is not a gang member: "Evidence of documentation can have dramatic legal consequences for criminal defendants." The problem is that so can other individuals who have been erroneously entered into this criminal gang database. Furthermore, those who are entered into this database and are members of gang report non-legal consequences from this type of documentation for example "one study suggests that documented gang members are more likely to be subjected to excessive force by law enforcement than non-documented individuals." (2006) Social consequences are noted as well which include: "...loss of employment and other social stigma." (2006) Wright additionally states: "One unifying feature of gang databases is that documented individuals are not entitled to notice, a hearing on the merits, or the opportunity to challenge the documentation decision. Indeed, documented individuals are without recourse for agency failure to purge names that should be thrown out of the system according to departmental and federal guidelines." (2006) Documentation practices vary from…

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