Too many in our state have experienced the devastating consequences of violent, sometimes gang-related crime, and our legislators understandably want to do something to stop it. House Bill 315 proposes to address these problems by enhancing penalties for gang recruitment — particularly for recruiting juveniles — and by dramatically increasing penalties for people identified as being gang members who commit certain crimes, while also broadening the definition of “criminal gang” and making it easier to prove gang membership.
While concerns are certainly warranted, such an approach to deterring gang activity has not been proven effective, is very costly (at an estimated $38 million) and would disproportionately impact poor communities of color. Research shows that interventions to move young people away from criminal activity — such as programs that involve the community working with law enforcement to offer youth gang members alternatives to violence, in addition to programs focused on poverty reduction, education and employment – are more effective than harsh, long term incarceration.
What the Bill Does
- Enhances penalties for gang recruitment: There is already a state statute that makes gang recruitment a crime, which has been applied to 22 people since it was enacted in 1998. HB 315 would increase the penalties for a person 18 or older committing the crime, and make the penalties especially harsh for a person 18 or older recruiting someone 15 or younger (a Class C felony with a sentence of 5 to 10 years for a first offense).
- Broadens the definition of a criminal gang and gang membership to apply to more groups and individuals: Currently the state’s legal definition of a criminal gang is an alliance, network or conspiracy of five or more persons involved in a continuing pattern of certain criminal activity. HB 315 would broaden the definition to apply to a group of three or more persons who: share a name or identifying hand signal/sign, colors or symbols or geographical location or leader; has been identified or prosecuted as a gang within the commonwealth or another state or country; and has two or more members who engage in or have engaged in a pattern of criminal activity.
- HB 315 would also expand the evidence admissible to prove the existence of or membership in a criminal gang — to include, for instance: identification as a gang member by an informant; identification as a gang member by the alleged gang member’s parent or guardian; self-proclamation of association, whether for business or enjoyment, with criminal gang members; and participation in photos or social media interaction with criminal gang members.
- Increases time spent in jail by gang members for misdemeanors: Adults convicted of a list of misdemeanor crimes, including criminal mischief and resisting arrest, would be required to be sentenced to nearly the maximum amount of time under the law and would be required to serve all of that time — if they committed the crime while a gang member, or if they were ever a gang member, and they were deemed to be acting in the interest of a criminal gang or a member of a gang. The bill takes away these findings from the jury and places them with the judge alone.
- Makes charges much harsher and increases time spent in prison for gang members convicted of felonies: Adults convicted of a felony that “could or did place a member of the public at risk of physical injury, serious physical injury, or death” while a gang member and acting in the interest of a criminal gang or an individual member of a gang would receive a much harsher sentence and be required to serve at least 85 percent of their sentence before being eligible for parole. Again, these findings would be taken away from a jury and given to the judge to make.
- For instance, a Class D felony that carries with it a 1 to 5 year sentence and parole eligibility after serving 20 percent of the sentence would instead become a Class C felony that carries with it a 5 to 10 year sentence and have no opportunity for parole until serving 85 percent of the sentence. This provision applies even if an inmate participates in rehabilitative programs that would otherwise reduce his/her sentence, reducing the incentive to do so.
- The bill also allows the seizing of assets alleged to be associated with crimes/suspected crimes committed by gangs or gang members. Thus, once an individual is brushed with suspected gang association his or her family’s property can be subject to civil forfeiture.
Likely Impact of the Bill
While it is important that actions be taken to address violent crime in our state, increasing penalties is not supported by research as an effective approach. Meanwhile, HB 315 would lock up more people for long periods of time, have a disproportionate impact on poor communities of color, and cost the state over $38 million; this cost estimate is based on information about validated gang members currently incarcerated, but under HB 315 there would likely be more under the expanded definition of criminal gang in the bill and evidence to prove membership. Similar legislation in California overwhelmingly led to the incarceration of individuals belonging to minority racial groups (despite an increasing number of whites participating in gangs), was not effective in combatting gangs or crime, and may have even resulted in increased gang activity by increasing gang solidarity, antagonism to law enforcement and gang involvement as a prison survival strategy, and decreasing legitimate opportunities for gang members to re-enter society once released.
Studies show that intervention to move young people away from criminal activity is more effective than harsh, long-term incarceration. Often those incarcerated for years become more steeped in criminal behavior, not less. Upon release, they have lost family and community ties and their only associates may be others who were convicted of committing crimes.
Public dollars to enforce HB 315 could instead be used to fund intervention efforts and turn these young people’s lives around, while our current gang recruitment statute can be applied when necessary and appropriate.