Chapter 13b:
Gang-Related Legislation

The Creation of New, Gang Focused Legislation

As the gang situation in our nation has worsened, new gang-specific laws have been created at municipal (city), State, and Federal levels. Municipal ordinances have been created to deal with gang-related activity and include curfew restrictions, noise abatement, and penalties for creating graffiti - an act of vandalism.  

Chicago's anti-gang loitering ordinance is another example of how recently developed municipal legislation is being used to deal with gangs.

Our Department's [Chicago Police Department] enforcement of the [city] Anti-Gang Loitering Ordinance has brought much-needed relief to neighborhoods held hostage by street gangs. Over the last two years, our officers have made 31,000 dispersals and more than 37,000 arrests under the law.

I am convinced that our energetic enforcement of this ordinance contributed to the 25 percent reduction last year in gang-related homicides and the 13 percent decline in the number of homicides involving victims under the age of 21.

As importantly, our enforcement of the ordinance has helped to reduce the level of fear and intimidation in neighborhoods menaced by the constant presence of gangs. Removing gang members from our streets sends a powerful message to law-abiding residents that their neighborhoods belong to them, not to the gang-bangers.

That message is further reinforced when we impound the vehicles of persons found to be carrying weapons or illegal drugs in our neighborhoods -- as we did on more than 2,100 occasions last year alone. (Rodriguez, 1998, page, removed from the Internet by Dec. 2004.)  

The Institute for Intergovernmental Research estimates that over seventy percent of all states in the United States have enacted some form of legislation pertaining to gangs. (Institute for Governmental Research, 2000)

The types of gang-related legislation most frequently encountered pertained to enhanced penalties and sentencing for gang activities; drive-by shootings; graffiti; gang activity and forfeiture; and gang member recruitment.

Legislation designed to address gang activity continues to evolve. In 1999, new categories of legislation specific to gangs included carjacking, expert testimony, law enforcement training, and school dress codes/uniforms.

Public nuisance laws around the United States are increasingly noting gang activity as a factor in determining a nuisance. Indiana has defined real estate/dwellings as "psychologically affected property" if they are the location of criminal gang activity. This factor must be disclosed, by law, in real estate transactions." (ibid., 2000, page)

In addition to home invasion, the offenses found in the list below are some of those for which gang members may now be arrested. Some were created specifically for this purpose, as can be told by their names. The link from each offense goes to the website of the Institute for Intergovernmental Research and to other examples of related State law.

Carjacking - "An individual commits the offense of carjacking when the individual obtains unauthorized possession or control of a motor vehicle from another individual in actual possession by force or violence, or by putting that individual in fear through intimidation or threat of force or violence." (Maryland, scroll down to "Maryland") Drive-by Shootings - "A person commits drive by shooting by intentionally discharging a weapon from a motor vehicle at a person, another occupied motor vehicle or an occupied structure." (Arizona, scroll down to "Arizona") Gangs and Forfeiture - "All profits, proceeds, and instrumentalities of criminal street gang activity and all property used or intended or attempted to be used to facilitate the criminal activity of any criminal street gang or of any criminal street gang member; and all profits, proceeds, and instrumentalities of criminal street gang recruitment and all property used or intended or attempted to be used to facilitate criminal street gang recruitment are subject to seizure and forfeiture." (Florida, scroll down to "Florida") Gang Participation - A person who actively participates in or is a member of a criminal street gang and who willfully aids and abets any criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang, commits a class "D" felony. (Iowa, scroll down to "Iowa") Gang Recruitment (may include solicitation) - "Every person who shall knowingly or willfully cause, aid, abet, encourage, solicit, or recruit a minor to participate, join, or associate with any criminal street gang ... or any gang member for the purpose of committing any criminal act shall, upon conviction, be guilty of a felony punishable by imprisonment." (Oklahoma, scroll down to "Oklahoma") Gang-related Clothing, Dress Codes, School Uniforms - "A board of education may adopt a dress code policy to prohibit students from wearing, while on school property, any type of clothing, apparel or accessory which indicates that the student has membership in, or affiliation with, any gang associated with criminal activities. The local law enforcement agency shall advise the board, upon it's request, of gangs which are associated with criminal activities." (New Jersey, scroll down to "New Jersey") Weapons-related Violations - "Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a criminal street gang ... may be seized by any law enforcement agency or peace officer, when the law enforcement agency or peace officer reasonably believes that the firearm, ammunition to be used in a firearm, or dangerous weapon is or will be used in the commission of a pattern of criminal gang activity." (Louisiana, scroll down to "Louisiana") Public Nuisance / Premises Used by Gangs - "The habitual use or the threatened or contemplated habitual use of any place for any of the following purposes is a public nuisance: (7) engaging in organized criminal activity as a member of a combination or as a member of a criminal street gang ...  (8) reckless discharge of a firearm ... (9) engaging in organized criminal activity as a member of a combination". (Texas, scroll down to "Texas")  Graffiti - (Edited by the author for the sake of brevity.) "Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. (e) As used in this section, the term "graffiti or other inscribed material" includes any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property. (a) (1) It shall be unlawful for any person, firm, or corporation, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is in fact under the age of 18 years, any aerosol container of paint that is capable of defacing property without first obtaining bona fide evidence of majority and identity. (b) It shall be unlawful for any person under the age of 18 years to purchase an aerosol container of paint that is capable of defacing property. (c) Every retailer selling or offering for sale in this state aerosol containers of paint capable of defacing property shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: "Any person who maliciously defaces real or personal property with paint is guilty of vandalism which is punishable by a fine, imprisonment, or both." (d) It is unlawful for any person to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted public facility, park, playground, swimming pool, beach, or recreational area, other than a highway, street, alley, or way, unless he or she has first received valid authorization from the governmental entity which has jurisdiction over the public area. (e) (1) It is unlawful for any person under the age of 18 years to possess an aerosol container of paint for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance. California Code 594.2 (a) Every person who possesses a masonry or glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, an aerosol paint container, a felt tip marker, or any other marking substance with the intent to commit vandalism or graffiti, is guilty of a misdemeanor. California Codes Government Codes Section 38771-38775 38771 By ordinance the city legislative body may declare what constitutes a nuisance. 38772. (a) The legislative body of a city, county, or city and county may provide for the summary abatement of any nuisance resulting from the defacement of the property of another by graffiti or any other inscribed material at the expense of a minor creating, causing, or committing the nuisance and by ordinance may make the expense of abatement of the nuisance a lien against property of the minor and a personal obligation against the minor. (b) The parent or guardian having custody and control of the minor shall be jointly and severally liable with the minor. (California, scroll down to "California")

In order to make sure gang members have as few opportunities as possible to escape being convicted as gang members, the State of Kentucky passed the following legislation. Some of the wording has been omitted in the following codes to make them easier to read.

Kentucky State Code 506.150.

Criminal gang activity or recruitment; Actions not constituting defenses:

(1) It is no defense to prosecution ... that:

(a) One ... or more members of the gang are not criminally responsible for the offense;

(b) One ... or more members of the gang have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense, or are under prosecution;

(c) A person has been charged with, acquitted, or convicted of any offense ...

(d) The participants may not know each other's identity;

(e) The membership in the criminal gang may change from time to time.

(2) Once the initial combination of five ... or more persons is formed, the number or identity of persons remaining in the gang is immaterial as long as four ... or more persons in the gang, excluding the defendant, are involved in a continuing course of conduct constituting a violation of" [state law]. (Institute for Intergovernmental Research, 1999, page)

Another example of how new state laws are targeting gangs is represented by Colorado's requirement that all cases made by the police and passed on to the prosecutor must indicate whether the suspect is a gang member or not.

Colorado State Code 16-21-103 

A law enforcement agency [police] that requests the filing of any criminal case shall submit to the district attorney the arresting agency's name, the offender's full name and date of birth, the charge or charges being requested, the investigating agency's case number, and the date of arrest and the arrest number. 

In addition, the law enforcement agency shall submit to the district attorney any relevant information about the offender's affiliation or association with gangs or gang activities. (ibid., 1999, italics added for emphasis, page, scroll to "Colorado")

Gang members who are being discharged from prison (released at the end of their sentence) or who are being released upon parole are the focus of two laws recently passed in Texas. Texas Senate Bill 1577 requires "the Texas Department of Criminal Justice to notify local law enforcement when members of gangs identified as security threat groups - the worst prison gang members, according to bill backers - are released from prison. Senate Bill 1576 - establishes specialized training for parole officers who are supervising gang members released from prison." (Merle, 1999, page)

The United States federal government has also passed legislation which helps target gang-related criminality. The most significant pieces of legislation are

the Racketeering Influenced and Corrupt Organizations (RICO) statute, the Street Terrorism Enforcement and Prevention (STEP) Acts, and the Safe Streets Act.

Each of these are more fully described below.

A. Racketeering Influenced and Corrupt Organizations (RICO)

The Racketeering Influenced and Corrupt Organizations (RICO) statute was initially created to deal with organized crime in the United States and is known for its ability to confiscate from those convicted of violating the RICO statute any and all property associated with the criminal enterprise in question. The statute is also used to prosecute gang members accused of criminality.

The federal Racketeer Influenced and Corrupt Organizations (RICO) statute was enacted in 1970 and amended in 1986. Unlike other laws that address individual criminal acts such as murder or robbery, the RICO statutes were specially designed to target the overall and continuing operations of organized crime. 

Specifically, the act prohibits the use of racketeering activities or profits to acquire, conduct, or maintain the business of an existing organization or enterprise. Racketeering activities are defined as any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in narcotics or dangerous drugs, fraud, and other crimes. The act provides for forfeiture of illegally obtained gains and interests in enterprises. (Rush, 2000, p. 279) 

Many states have enacted statutes similar to RICO and use them to prosecute gang members and confiscate their ill-begotten goods (i.e., cars, boats, homes, guns, bank accounts)

B. Street Terrorism Enforcement and Prevention (STEP) Act

The Street Terrorism Enforcement and Prevention Act (STEP) is based upon the RICO model using various crimes "as the basis for sentence enhancements and provide[s] for civil forfeiture of a street gang's assets and the proceeds of its criminal activities. Some States have added drive-by shooting statutes. STEP Acts can be valuable because they turn specific intent crimes like attempted murder or aggravated assault into general intent crimes." (Johnson, Webster, and Connors, 1995, page)

Like the difference between proof beyond a reasonable doubt and proof by a preponderance of the evidence, the difference between specific and general intent is important. To find someone guilty of a crime using specific intent it must be shown that the accused meant to commit the crime. A person who purposely murders or assaults a person they selected as a victim may be found guilty with specific intent.

On the other hand, a person who murders or assaults a person they had no specific intent of murdering or assaulting may be found guilty with general intent. A drunk driver who hits and kills a pedestrian may be found guilty using general intent. The driver knew being drunk an driving could result in death, but the victim was not someone the driver intended to kill.

A finding of specific intent is more difficult to achieve than is general intent. Thus, being able to find a gang members guilty of a crime using general intent increases the likelihood of their conviction. This makes the STEP act particularly attractive to police and prosecutors when dealing with gang members.

Riverside County, California, "steps" both street gangs and gang members by bringing them within the parameters of the STEP Act. It guides the compilation of intelligence pertaining to a particular gang, laying the foundation for identification of the gang and its members. 

The street gang unit of the City of Riverside police department compiles three related notebooks on a targeted gang. The first notebook contains copies of all incident, arrest, investigative, supplemental, and field interrogation reports pertaining to the gang. 

The second notebook contains the personal records of gang members and affiliates, including pictures, prints, rap sheets, and copies of any reports in which their names appear. The third consists of pictures of gang members, individually and together, showing their colors, tattoos, signs, and other indicia of street gang affiliation. The notebook also includes pictures of gang graffiti, with places and dates carefully recorded. 

Riverside police officers also serve certain gang members with written notices, developed by the prosecutor, which state that a specific gang is considered a criminal street gang under the STEP Act and that participation in the gang can subject an individual to a sentence of 1 to 3 years.

The carefully preserved record of notification destroys any claim that a defendant did not know of the street gang's criminal activity, knowledge being one of the bases for STEP Act prosecution. In addition, prosecutors reported that the notice itself has had an inhibiting effect on many gang members. (ibid., 1995, page)

According to Johnson, et al., (ibid.) there are other gang-related statutes which some prosecutors would like to see created. Among them are those that would deal with: 

Witness protection programs [due to gang intimidation of witnesses and victims]. Rural gang prevention laws. Lowering [the] age on juvenile offenses [so juvenile gang members could be tried in a criminal court]. Greater accessibility of juvenile records. Automatic certification of juveniles for gang-related crimes [transferring juvenile gang members to the criminal court for trial]. Pointing weapon from vehicle. (ibid., page)

C. Safe Streets Act

Combating gangs in America has become a dangerous, time consuming, and difficult task. The Safe Streets Act was passed in order to improve the effectiveness of law enforcement's efforts in this regard and to expand their intelligence about gangs. Through the use of the related Safe Streets Task Force units, law enforcement has been more productive in arresting gang members.

As Director of the United States Federal Bureau of Investigation, Louis Freeh provided an instructive statement to Congress concerning the relationship between the Safe Streets Act and gangs.

One of the most disturbing crime trends facing our country is the increase of violent street gangs--often made up of juvenile offenders. The rise of gangs and the violence perpetrated by these organizations are of grave concern. These organizations are no longer only in our urban centers--they are appearing in suburban neighborhoods, rural areas and small towns. 

Fighting these gangs cannot be left to individual law enforcement agencies. The "Safe Streets" initiative has a coordinated approach. These Safe Streets Task Forces are made up of teams of federal, state, and local law enforcement officers and prosecutors.

The initiative is designed to allow the Special Agent in Charge of each FBI field division to address street gang and drug related violence through the establishment of FBI sponsored, long term, proactive task forces focusing on violent gangs, crimes of violence, and the apprehension of violent fugitives.

There are 164 Task Forces operating in 52 of our field offices. These Task Forces team nearly 785 FBI Special Agents with nearly 142 other Federal Agents and some 1,255 state and local law enforcement participants. Since the beginning of this program, there have been almost 159,960 arrests and over 56,000 convictions or pre-trial diversions.

In 1998, one of the major Safe Streets operations was carried out by FBI Special Agents and police officers in Los Angeles and Little Rock against the drug trafficking operations in both cities of a large gang, the Grape Street Crips. Fifty-six indictments were issued in Little Rock and 17 in Los Angeles. The arrests also disrupted drug trafficking in four other cities: Minneapolis, Cleveland, Jackson, and Memphis.

Another major case was Operation Crown, in which the FBI and the New York City Police Department targeted the entire top echelon of a major gang, the Almighty Latin King and Queen Nation, and arrested 94 members and associates. The investigation focused on trafficking in firearms and drugs, and the felony charges against the defendants ranged from weapons and narcotics possession to conspiracy to commit murder.

Successes are taking place across the country as law enforcement agencies join together to make communities safer for all. One of the major successes was in Connecticut. In Bridgeport and Hartford, two Safe Streets Task Forces, composed of seven FBI Agents and 15 police officers representing ten agencies, committed their investigative efforts and resources to an investigation involving the criminal activities of the Almighty Latin King/Queen Nation (ALKQN) and the Los Solidos (LS) street gangs. 

These investigative efforts required the use of court-approved electronic surveillance, focusing on the leadership and members of the two street gangs [and] culminated in the arrests and indictments of over 50 ALKQN and 52 LS members and associates.

Sixteen ALKQN and eight LS members were charged under the Racketeering Influenced and Corrupt Organizations (RICO) statute, to include 13 homicides. These were the first prosecutions that utilized the RICO statute for gang members in Connecticut. Furthermore, the incarceration of these gang members had a measurable effect in reducing the violent criminal activity in these communities as reported by the local police departments.  (Freeh, no date given, Chapter 4)

Existing and new municipal and state laws and their enhancements, in addition to the RICO, STEP, and Safe Streets Acts have become a significant arsenal of legal tools now used by police and prosecutors in their dealings with America's gang members.

Some Difficulties Related to Gang-Oriented Legislation

There are some difficulties still apparent in the legal apparatus used to arrest and convict gang members. As will be seen in the section on Prosecutors, Courts and the System, it is sometimes difficult to prove gang membership or affiliation or that a given group of individuals is a gang. It's all in the way in which the statute defines such terms and in the quality of the investigation of the crime, gang members, and the gang by police and prosecutors.

In addition, some prosecutors (and police) would like to have access to the juvenile records of adult gang members. In many states this is not allowed. Also, legislation dealing with juvenile offenders is sometimes outdated and, by some accounts, too lenient in dealing with today's more violent juvenile offenders.

Gang members, especially juveniles, sometimes pass through the system without serving any sentence. Problems that have always existed within the juvenile justice system make gang prosecution especially difficult because so many gang members today are juveniles." (Johnson, Webster, and Connors, 1995, page)

Prosecutors expressed frustration with the effectiveness of the juvenile justice system in handling juveniles involved in gang crimes. Where criminal justice officials contend with a shortage of detention facilities, juveniles - even those with prior convictions - may receive only intensive probation for a felony charge. 

In such a situation, sentencing enhancements and stricter penalties will have little effect on the gang problem. State juvenile codes were not designed for the serious violence that characterizes contemporary street gang crime, and the gang statutes almost completely overlook juveniles. 

Often, the prosecutorial response to this difficulty is to seek transfer of serious juvenile offenders into adult court and correctional systems. But such transfers may be very difficult to obtain because of strong traditions favoring adjudication and treatment of juveniles within the juvenile court and corrections systems.  (ibid., 1995, page)

As we will see when we look more closely at the relationship between gangs and police, prosecutors, and probation and parole officers, there are limited resources for dealing with the gang situation. Efforts to use the many laws described above requires resources such as time, money, and personnel. 

Once cases reach the courts, prosecutors are often frustrated with several factors that hamper the prosecution of gang members. Though it appears that sentencing enhancements might lessen the recycling of gang members through the criminal justice system, the State's resources must be considered in pursuing such enhancements.  (ibid., 1995, page)

In Closing

According to the National Alliance of Gang Investigators Associations (NAGIA), "Increased awareness of gang activity has led to a proliferation of municipal, state and federal gang-related legislation with varying degrees of effectiveness.  

There is a need to identify and track legislation pertaining to gang prevention and suppression issues and to provide well-informed guidance to legislative sponsors. There is also a need to catalog and evaluate existing legislation to provide examples of beneficial statutes to those seeking to shape new legislation." (National Alliance of Gang Investigation Associations,  removed from the Internet as of 17 October 2009)

Next

Additional Resources: You can find out if your state has enhanced gang legislation by visiting the site of the Institute for Intergovernmental Research and clicking on the name of your State. 

You can explore all gang-related legislation by state by type of crime (i.e., carjacking, drive-by shootings, enhanced penalties, participating in a gang, gang-related clothing/dress, graffiti, etc.) and by violation of municipal codes (i.e., bias/hate crimes, curfew violations, gang recruitment, loitering, parental responsibility, truancy, weapons, etc.).

Read the entire Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. It is the legal foundation of our government's fight against the abuse of drugs and other substances.

Visit the site of the RICO law and read all of its provisions as linked below: RICO legislation in its entirety, known formally as 18 U.S.C. §§ 1961-68 (1994). See Section 1961 Definitions , Section 1962. Prohibited Activities , Section 1963. Criminal Penalties , Section 1964. Civil Remedies , Section 1965. Venue And Process , Section 1966. Expedition Of Actions , Section 1967. Evidence and Section 1968. Civil Investigative Demand.

You can learn more about the California 186 Street Terrorism statute and the California STEP law. California has also adopted a narcotics and gang-related crime eviction program. 

To view one of the newest pieces of anti-gang legislation being proposed at the national level, explore the Anti-Gang Violence Act of 2001.

See how a community dealt with its gangs through the use of a nuisance ordinance. You can search the web for laws or learn more about gang-related legislation, or read gang-related legislation intended for use by probation and parole officers.

© 2002 Michael K. Carlie
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means without permission in writing from the author and copyright holder - Michael K. Carlie.