Introduction

From a National  Assessment of Prosecutors The notoriety of the Crips and Bloods, two dominant gangs of the Los Angeles area, has led to a spread of their "colors" (manner of dress) and violent lifestyles to other cities.  In large jurisdictions, 50 percent of prosecutors reported the presence of Crips and Bloods, with 90 percent involved in violent crime and 92 percent involved in drug trafficking.  Somewhat fewer small jurisdictions reported Crips and Bloods (41 percent), but when present, they were reported to have similarly high rates of involvement in violent crime (77 percent) and drug trafficking (97 percent). (ibid., 1995, page)

Prosecutors, sometimes referred to as District Attorneys, represent the "state" (you and me) in bringing charges against and trying suspected criminal offenders. When prosecutors believe a case has prosecutorial merit they request a preliminary hearing with a judge. At the preliminary hearing, prosecutors communicate to judges the grounds for probable cause in the arrest of the suspect and reveal the evidence against the accused. Judges then determine if there are sufficient grounds for bringing the case to court.

Field Note: One of the prosecutors I interviewed said "My first point of entry in a gang-related case is at the bond hearing, before the preliminary hearing. I want the judge to know that the case may be gang-related and, because I think it is, I want the bail to be higher in order to keep the suspect in jail - away from other gang members and victims."  If the suspect is allowed to await trial while living in the community he may collude with fellow gang members regarding alibis and intimidate potential witnesses.

Click on the topics below or  continue reading down the page ... Understanding the Context Specialization Vertical Prosecution Proactive Prosecution Difficulties Prosecutors Face Police Mismanagement of Cases Privacy of Juvenile Records Out-Of-Date Juvenile Codes Difficulties with the Judges Shortage of Police Shortage of Prosecutors Shortage of Community-Based Treatment Programs Victim-Witness Problems Questionable Outcomes In Closing

Understanding the Context

When it comes to the subject of gangs, prosecutors do not work in a void. Their world includes several other players, including those who work toward community-wide efforts to reduce gang activity. Community mobilization is an effort on the part of an entire community to address various social problems - including gangs. Mobilization efforts may include generating opportunities for job training and placement and for social intervention efforts (i.e., substance abuse intervention, counseling, education, reducing abuse in the home). 

Social disorganization, which contributes to the development of criminal youth gangs, may be characterized by the inability of legitimate institutions such as home, school, and employment, to adequately socialize youth. It may also be characterized by limited networking among agencies or the fragmentation of criminal justice or community service delivery systems, within and across communities. (Kane, 1992, page)

These strategies complement the prosecutor's suppressive efforts (to convict criminal/gang offenders) and "must be combined in different ways depending on the problem context, the specific mission of the organization, and the kind of youth targeted for special attention." (ibid., 1992, page)

The prosecutor is also urged to work closely with colleagues in the criminal justice system - especially police and probation officers - and representatives of the schools, local businesses, social service organizations, community-based youth agencies, grassroots organizations, parents and youth themselves to plan, coordinate, and implement an effective strategy to reduce gang violence. (ibid., 1992, page)

In the end, "A community's youth gang problem will not be reduced in the long term solely by arresting and prosecuting gang members. Other things must take place in order to create opportunities for gang- and gang-prone youth and to involve community residents in an effort to improve the conditions of their neighborhoods." (ibid., 1992, page)

Specialization

In larger jurisdictions there may be several, if not scores, of prosecutors. It is not uncommon for a chief prosecutor to create special units within his or her office. These units are established depending upon the nature and extent of certain crimes occurring in the community. Examples of special units are Major Crimes (i.e., murders, mass murders), Sexual Assault and Child Abuse, Sexually Violent Predator, Statutory Rape, Elder Abuse, Child Abduction, Crimes Against Persons (i.e., robbery, assault), Crimes Against Property (i.e., larceny/theft, burglary), Major Fraud, Organized Crime, Criminal Racketeering, Asset Forfeiture, and Family Violence.

It is essential that the gang prosecutor receive specialized gang training which provides a thorough understanding of the nature and scope of the gang problem in different types of local communities, the genesis and control of the problem and the application of relevant laws and prosecutorial procedures. (Spergel, et al., 1994, p. 9)

Some prosecutor's offices have one or more units dedicated to prosecuting gang-related offenders. In communities with a significant and chronic gang situation, there may be different prosecutorial units for Asian, Hispanic, African-American, and other ethnic group gang cases.

Much of what follows below was drawn from a nation-wide survey of prosecutors conducted by Johnson, Webster, and Connors. (1995) They mailed survey instruments to a total of 368 State prosecutors' offices in all 175 counties with more than 250,000 residents. An additional 193 prosecutors were randomly selected from counties with from 50,000 to 249,999 residents.  A total of 80% of prosecutors from the large counties and 84% of those from small counties responded to the survey. That is an exceptionally high rate of return. In addition to the surveys, four on-site visits were made to study how the prosecutors dealt with street gangs in different cities and States. The researchers' findings were significant and are useful in our discussion of prosecutors, courts, and gangs. (Johnson, Webster, and Connors, 1995, page)   

Vertical Prosecution

Rotation and vertical prosecution are two methods prosecutor's use to manage the cases that come to their attention. Using the rotational method, as each case comes to the prosecutor's office it is assigned to the next available prosecutor. Using vertical prosecution, cases are assigned to specific prosecutors or groups of prosecutors based upon the nature of the case. Sex-related cases go to the sex-crimes prosecutors, murder cases go to the prosecutor's homicide or major crimes unit, and so on. Vertical prosecution is one of the keys to the successful prosecution of gang member offenders and it works like this ... 

A police officer makes an arrest and, in his investigation, determines the offense may be gang related (committed by a gang member or motivated by the suspect's gang). The case is then brought to the prosecutor's office and assigned to a designated gang prosecutor. That same prosecutor takes the case forward for all subsequent hearings and right on through to trial and possible sentencing. Vertical means the same prosecutor stays with the case from beginning to end as opposed to having different prosecutors take the case through each of the various steps in the process (the rotational method).

The nation-wide survey of prosecutors referred to above found that

Prosecutors favored vertical prosecution of gang members and believed that a small group of gang prosecutors using this approach may be the more effective strategy. (ibid., 1995, page)

Vertical prosecution is important in gang-related cases because it allows for continuity and may result in obtaining important information for prosecuting the current case and future gang-related cases. As one prosecutor put it, "The prosecutor gets to know the case in greater depth, including the accused, victims, and the evidence that will be used in court. By being at all the hearings I have a much better idea of what is happening with the cases."

Field Note: I asked a prosecutor if there were any drawbacks to using vertical prosecution. "One of the drawbacks is that prosecutors using vertical prosecution become expert in only one area of litigation rather than becoming effective generalists."

The true advantage of a specialized gang unit is not necessarily in vertical prosecution of every case, but in having a small number of lawyers filter related cases. As prosecutors come to know gangs and gang members in their jurisdictions, they can see connections (such as retribution, territorial feuds) between what at first glance seem to be random or unrelated criminal incidents. (ibid., 1995, page)

The results of the survey of prosecutors revealed "Thirty percent of prosecutors in large jurisdictions (5 percent in small) have formed gang units using vertical prosecution to focus on gang members. In large counties, these units were usually staffed by two to four full-time attorneys." (ibid., 1995, page)  As of September, 2001, Los Angeles County had the largest gang prosecution unit in the country with approximately 60 full-time attorneys. (From a telephone conversation with Janet Moore, Assistant Prosecuting Attorney for the County of Los Angeles, CA., September, 2001)

Proactive Prosecution

Where the gang situation has become entrenched and chronic, some prosecutors have adopted a proactive approach to the prosecution of gang members. Rather than wait for serious gang crime cases to work their way through from the police, prosecutors join police on the street interviewing witnesses and victims of serious gang crimes. An example of this proactive, aggressive and pre-emptive form of prosecution may be found in California where, according the Johnson, Webster, and Connors (1995)

Several jurisdictions surveyed combined vertical with proactive prosecution. The San Diego County, California, district attorney's office reported operations of a gang prosecution unit that has served as a national model for this approach. 

One San Diego assistant district attorney explained that "[w]hereas reactive prosecution tends to be more a response to a past chain of events (i.e., a crime occurring and police investigation being completed), 'proactive' implies an attempt to stop the crime from occurring or at least to participate in the initial investigation."

In Riverside County, California, one of the case study sites, the district attorney's office has also taken a proactive approach. It operates an on-call program with 10 prosecutors, including gang prosecutors who handle murder cases. On these most serious crimes, the district attorney's office does not wait for cases to make their way through the system. Instead, gang prosecutors go out on the street with police to interview victims and witnesses and talk to gang members. (ibid., 1995)

Difficulties Prosecutors Face

Police Mismanagement of Cases

Among the difficulties prosecutors face is police mismanagement of cases. In these instances, the cases are either dropped or plea bargained. Cases may also be mismanaged by police through violations of due process (such as not having probable cause when arresting a suspect or using coercion to obtain a confession), mishandling of evidence, spoiling a crime scene, failing to interview a witness, or in other ways.

Privacy of Juvenile Records

Another difficulty presents itself in states which do not allow juvenile records to be viewed outside the juvenile justice system. Police arrest records and the records of juvenile workers in those states may not be viewed by personnel in the criminal courts - including prosecutors.  

Field Note:  According to one of the prosecutor's I interviewed, "Most gang crime is committed by juveniles, at least in this community. Because of that, I don't see those cases. It's unfortunate that in this state the adult system is shut out of the juvenile system. There is no flow of information to us from them. The only reason we get a juvenile gang member's case in our office is when the juvenile is certified as an adult."

Out-Of-Date Juvenile Codes

In their nation-wide survey of prosecutors, Johnson, et. al. found that "Prosecutors cited problems in prosecuting juveniles (a large percentage of gang members) because State juvenile codes were not designed for the serious violence that characterizes street gang crime, and gang statutes generally do not cover juveniles." (ibid., 1995)

The prosecutors also identified what they saw as new and needed areas of legislation. Among them was allowing greater accessibility to juvenile records. As noted by Johnson, et. al. (1995), "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)   

Difficulties with the Judges

In most jurisdictions I studied, no judge had ever ridden with the police gang unit to see what the situation was like on the street. This lack of insight as to the problem at street level takes its toll in the courtroom as prosecutors present their gang cases before the bench. Speaking about why judges stay off the streets, one Major Crimes Unit supervising prosecutor said "I think they have kept from doing that because they would say it destroys their objectivity and detachment."

Field Note: A prosecutor with 15 years experience said "I think it's because they're arrogant and look down on the gang situation. They don't want to bother with it, or with the police. Just watch how they treat police in the courtroom. They show no respect for police, making them wait for cases they know have already been continued [moved to another date]. They just let the police sit there."

There are judges at the juvenile level who are concerned about youth involved in gang activity. According to Spergel, this is a special problem and juvenile court judges should "understand the scope and seriousness of the youth gang problem and ... deal with juvenile gang offenders in the juvenile court rather than [transfer] them to adult court." (Spergel, et al., p. 9, 1994)

During the late 1980's and into the 1990's, Spergel and some of his associates conducted research on gangs funded by the U.S. Office of Juvenile Justice and Delinquency Prevention. The research group was to "undertake a comprehensive assessment of gang problems and programmatic responses across the country." (ibid., 1994) In relation to the courts, the researchers found 

The court has directed little attention to special approaches for dealing with juvenile or youth gang offenders. Instead, the judiciary emphasizes a get-tough strategy, and more often removal of the serious juvenile gang offender from the jurisdiction of the juvenile and family court.  

However, some judges try to use the court as a basis for a community-oriented approach in which a variety of community, school, family, and justice system organizations concentrate efforts to address the special needs of the youth gang member.

Although many judges pursue a broad social rehabilitation or protective approach with respect to abused and neglected children and minor offenders, little consideration is given to adapting such an approach for juvenile gang offenders.  (ibid., 1994, p. 9)

Although several years have passed since Spergel's findings were reported, the situation has not improved. Instead, the number of gang members has been steadily increasing (from 378,807 in 1993 to about 846,500 in 1999), placing an even greater burden upon the court and all community-based programs which may have been used as alternatives to incarceration.

Shortage of Police

It's easy to pass gang laws, but without the resources to 
enforce them, what's the point? (County Prosecutor)

In order to successfully prosecute gang members there must be an adequate number of police in the police department. Police are often overwhelmed by the number of calls for service to which they must respond, the amount of time it takes to investigate cases, write reports, and do all the other things police are expected to do. Without a sufficient number of police, departments can not pursue gang-related cases thoroughly. And without the in-depth police investigations needed to successfully prosecute suspected gang members, prosecutors' hands are tied.

Field Note: Concerning the recent murder of a local gang member, the prosecutor said "We had a report from the police on the murder itself, but there weren't enough police to have one of them attend the funeral. At the funeral there wasn't a stitch of red to be seen. According to other people who did attend, gang members were passing by the casket and tossing in drugs, money, and weapons. We could have used that information in court, but we didn't have it from the police because they are understaffed."

Of particular importance is a shortage of officers working on juvenile cases. Since approximately one-half of all gang members are 17 years of age or younger (about 425,000 youth), the burden placed upon police is significant. According to one prosecutor, "If they had more officers perhaps we wouldn't have so many juveniles getting involved in gangs."

Shortage of Prosecutors

Having too few prosecutors dedicated to prosecuting gang-related cases results in both too many cases for each existing prosecutor and too little time to become familiar with each case prior to presentation in court. This lack of resources often results in extensive plea bargaining - a less than desirable outcome.

Shortage of Community-Based Treatment Programs

The demand for community-based treatment programs, and an accompanying lack of funding, has created a situation in which it is difficult to find job training and job placement services for gang members who would like to find legitimate employment. Without meaningful alternative sentences, judges turn to jail and prison sentences.

Victim-Witness Problems

Witnesses to gang activity may face intimidation from gang members associated with the accused. (Finn and Healey, 1996). A problem faced by prosecutors is the protection of those victims and witnesses so they may participate in subsequent court proceedings without fear of harm or retaliation.

If witnesses do not participate fully in the investigation and prosecution of a case, the case's strength and its likelihood for success are affected. Victim/witness intimidation also can damage the community's confidence in law enforcement. (Gramckow and Tompkins, 1999, page)

Field Note: I interviewed a gentleman who had just finished three months as chairman of his county's grand jury. During his tenure on the jury a member of the Mexican Mafia [a Hispanic gang] was indicted. The prosecutor told the jurors they could remain anonymous for this indictment if they wished. This was said to assure them a certain level of security should the person being indicted wish to retaliate. The jurors all knew the Mexican Mafia member had obtained the name of his arresting police officer and that a contract had been taken out on the officer's life. My interview subject, as chair of the grand jury, was required to sign the indictment and is now concerned for his own welfare. He confessed "I'm scared to death and I don't know what to do!"

Among the techniques being used to protect witnesses and victims of gang-related crimes the most popular is the use of a victim-witness advocate - an officer of the court. Gramckow and Tompkins (ibid., 1999) also recommend that prosecutors provide the following:

Victim/witness protection inside and outside the courtroom. Videotaped pretrial testimony. Assistance to community organizations to develop social intervention strategies for gang members and juveniles at risk of gang involvement.  Aggressive prosecution of all instances of witness intimidation. Requests for high bail in witness intimidation cases. Requests to remove gang members from the courtroom. Close management of key witnesses. Emergency and short-term witnesses relocation. Impeachment of prosecution witnesses if they alter their testimony. Appointment of a victim advocate and investigator to prepare victims and witnesses for trial and keep them apprised of case status. (ibid, 1999, page)

According to Johnson, et. al., "Prosecutors' offices in which victim advocates work in tandem with investigators also reported considerable success with gang-related cases." (Johnson, Webster, and Connors, 1995, page)  They provide an example of such work in Suffolk County, Massachusetts.

The Suffolk County, Massachusetts, prosecutor's gang task force has a victim advocate and an investigator who both spend their time dealing directly with victims and witnesses in gang cases. The victim advocate regards this job as a significantly different kind of advocacy. The clients are primarily young adults ages 17 through 23. 

Handling these cases requires extensive personal contact; notices and telephone calls are not enough. The victim advocate prepares witnesses for trial, reviews grand jury testimony with them, and reviews the district attorney's questions. Since many witnesses in gang cases do not have telephones, the advocate often goes to their homes to remind them of court dates and, if necessary, wakes them up and transports them to court. 

Because of close and consistent contact with victims and witnesses, the victim advocate also effectively serves as a fact finder for the gang prosecutors. The Multnomah County victim-witness advocate also emphasizes that personal contact is very important to success in this work. 

An aggressive victim-advocate program, one that contacts the victim and witnesses immediately and develops and maintains their cooperation, can be one of the most significant factors in successful prosecutions. (ibid., 1995, page)

Questionable Outcomes

Most prosecutors I encountered believed suppression was not the answer to the gang phenomenon. They believe suppression is only one of several elements which need to be in place to reduce gang activity. On the other hand, when suppressive efforts are taken and include strict supervision and opportunity provision (offering education and employment opportunities) in the community, there are often questionable outcomes.

When defendants are found guilty, it may not always be in society's interest to incarcerate them for a very long period. The prosecutor's sentencing recommendation to the court should be based on the probation officer's presentence investigation as well as the possibility that strict supervision in the community and appropriate programming through remedial education and job placement may have longer term social benefits for both the community and the youthful offender than a prison sentence. (Spergel, et al., 1994)

The problem is that in too many jurisdictions, strict supervision in the community - typically meaning probation - is not possible. Probation personnel are overwhelmed by large and complex caseloads matched only by the amount of paperwork which is required of them on a nearly daily basis. Strict supervision is not possible without confinement, and confinement only complicates matters for the gang member (i.e., exposing them to negative influences, possible harm, further gang involvement).

As Johnson, et. al., found:

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. 

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. 

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.  (Johnson, Webster, and Connors, 1995, page)

In Closing

Johnson, et. al.,  found, the prosecutors who responded to their survey were not optimistic about gangs in the future.  

In their work, they have learned a great deal about gangs, gang members, and the circumstances that have produced them. The gang members who come to their attention are often far beyond the reach of social interventions designed to deter youths from involvement in gang or drug lifestyles. 

Although they stated that prosecuting gangs would not completely solve the gang problem, they intend to pursue prosecutions as vigorously as possible. But as indicated by their comments on the survey questionnaire and in interviews, gang prosecutors consistently advocated early intervention with children and youths and more effective services to strengthen families as the best way to prevent gang crime and violence. (ibid., 1995, page)

Probation and parole officers provide a link to services that could strengthen families and are our next topic of discussion.