Criminal Gang Enhancement in Sentencing: Law and Policy

Introduction: Proposition 21 and Juvenile Crime

During the period between 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," specifically regarding "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 criminal procedure. Proposition 21 would increase penalties related to street gang participation, whether in the form of graffiti or vandalism. Seven years after its passage, Proposition 21: The Gang Violence and Juvenile Crime Prevention Act had made California "one of 15 states that allow prosecutors" to decide "in cases involving charges of murder, sexual assault, arson, robbery, and gang crimes whether the youth will be charged as adults" (McKim & Rhor, 2007).

Those opposing Proposition 21 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 re-offend than those tried in juvenile court. According to McKim and Rhor (2007), the U.S. Centers for Disease Control released a study in April 2007 concluding that "teens transferred to the adult justice system are 34% more likely to be arrested again." Jonathan Laba, deputy director of the Pacific Juvenile Defender Center, stated: "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).

Dan Macallair, executive director of the Center of Juvenile and Criminal Justice in San Francisco, added: "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). Separately, Yee introduced a bill for the elimination of life without parole for juvenile offenders.

Police Search and Seizure Practices and Constitutional Standards

Gould and Mastrofski, in their work entitled "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution," observe 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 & Mastrofski, 2003–2004). Their study raises three central questions: (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?

These authors note that "the police, usually the first agents of the justice system," play a crucial role in determining the quality and quantity of justice Americans receive. In jurisdictions where police officers are perceived to abide by the rule of law, there is greater respect for and adherence to the law. Conversely, in jurisdictions where police are perceived as unethical, both the officers and the laws they enforce receive less public respect. Contemporary research suggests that many police officers have only a vague knowledge of the law relating to search and seizure. Gould and Mastrofski cite two studies showing that a significant number of police officers in states where warrantless search and seizure law is no more restrictive than U.S. Supreme Court decisions "have practically no working knowledge of that law" (Memory, 1988, p. 34, as cited in Gould & Mastrofski, 2003–2004).

A 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 and found that "up to one-seventh of stops failed to meet constitutional standards" (Civil Rights Bureau, 1999, as cited in Gould & Mastrofski, 2003–2004). This was based in part on officer self-reports, and the study noted a routine failure by officers to file the required paperwork after searching or frisking an individual. A Columbia University law student's analysis of police arrest records at the time of Mapp v. Ohio (1961) found that the discovery of evidence in drug cases attributed to "plain sight" rose 40%, suggesting that officers were shading their testimony — even to the point of falsehood — in order to gain convictions.

Gould and Mastrofski note that the organizational environment in which officers operate is not impermeable to outside influence. Officers are monitored for constitutional compliance by the "courtroom workgroup" — comprising prosecutors, defense attorneys, and judges — as well as by the public and powerful political groups who seek to alter enforcement practices through public outcry over police misconduct. Police conformity with the law was assessed through empirical observation, in which observers systematically coded officer behavior. Findings revealed that 31% of the 115 suspects in the sample were "searched unconstitutionally."

One disincentive for constitutional violations is the presence of civilian witnesses who could offer courtroom testimony against the officer. Officers observed by citizens show a greater tendency toward constitutional compliance. Years of experience also affect officer motivation. The study categorized officers as follows:

Rookies — low in knowledge and skill, but high in initiative.
Veterans — prone to cynicism; knowledgeable about how to avoid friction with management, courts, and the public.

Officers with four to nine years of experience were found to occupy a productive middle ground: they possessed sufficient knowledge to conduct lawful searches and were "sufficiently motivated to do so" (Gould & Mastrofski, 2003–2004). A broader survey among individuals who had contact with police officers found that 73% of police searches in America arose from traffic stops and were viewed as illegitimate by those searched. Constitutional violations were found to be concentrated among a small number of officers within the study.

Federal Gang Legislation and Sentencing Enhancements

A March 20, 2007 press release announced that Governor Arnold Schwarzenegger endorsed comprehensive gang legislation introduced by U.S. Senator Dianne Feinstein. The legislation proposed over $1 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 Feinstein legislation would make participation in a criminal street gang a federal crime, criminalize violent acts committed in furtherance of or in aid of criminal street gangs, and create a new criminal offense for murder and other violent crimes committed in furtherance of a drug trafficking crime.

Under the law as it then existed, "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." The proposed bill would establish 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 constituted a serious violent felony, the offender could receive up to 30 years in prison; for other violent gang crimes, the maximum penalty would be 20 years (Feinstein, 2007).

The legislation would also create High Intensity Interstate Gang Activity Areas (HIIGAA), requiring the Attorney General to designate certain locations as such and to provide assistance in the form of criminal street gang enforcement teams composed of local, state, and federal law enforcement authorities. The bill authorized $500 million over five years to support HIIGAA activities, including: (1) empowering local schools, service providers, and community and faith leaders with demonstrated success in fighting gangs to work collaboratively with law enforcement, following the successful "Operation Ceasefire" model; (2) establishing a national Research, Evaluation and Policy Institute to collect, analyze, and disseminate best practices for combating gang violence; and (3) directing one-half of these dollars — $250 million — toward prevention and intervention programs, including after-school programs and job training (Feinstein, 2007).

On April 5, 2007, Los Angeles City Attorney Rocky Delgadillo announced a new policy resulting from collaboration with the U.S. Attorney's Office in Los Angeles to provide that office with "names of documented gang members convicted of gang injunction violations for the purposes of a residency check" (Velasquez, 2007). Delgadillo stated: "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... 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... which may include the initiation of deportation proceedings where appropriate" (Velasquez, 2007).

Conclusion

As Wright concludes, "as currently employed, documentations without a hearing violates the procedural due process guarantees of the Fifth and Fourteenth Amendment" (2006). Taken together, the issues examined in this paper — from the geographic disparities created by Proposition 21, to the constitutional shortcomings of police search and seizure practices, to the broad and often inaccurate reach of gang databases — illustrate the profound legal and social consequences that flow from gang enhancement laws and related enforcement practices. The legal and social consequences of gang database inclusion, affecting employment prospects, exposure to excessive force, and criminal sentencing outcomes, demand urgent legislative and judicial attention to ensure that constitutional protections are meaningfully upheld for all individuals subject to these systems.