House Bill 169 proposes to make charges and related sentences much harsher for some crimes committed by individuals identified as gang members. This is an unproven approach to addressing gang violence. Its expanded definition of gang membership could disproportionately and unfairly harm communities of color, and would be costly at a time when Kentucky is in great need of common sense reforms to safely address the state’s growing inmate population and overwhelmed criminal justice system.
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 only 22 people since it was enacted in 1998 (and none last year). HB 169 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 years old 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, making it easier to prove gang membership: 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 169 would broaden the definition to apply to a group of just 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 169 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.
- Requires judges to lock up those identified as gang members much longer even when charged with misdemeanor offenses: 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. Judges would not have judicial discretion in these cases.
- Makes charges much harsher and increases time spent in prison for “gang members” convicted of felonies, including those under 18 years of age in some cases: Those convicted of a felony that “could or did place a member of the public at risk of physical injury, or death” at the same time he/she is identified as a gang member and acting in the interest of a criminal gang or even an individual member of a gang would have their level of offense increase an entire step up and be required to serve at least 85 percent of that sentence before even being eligible for parole.
- 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 this enhanced 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. Again, judges and also the parole board will have no discretion and will have to sentence even those who committed offenses as minors to these harsher sentences.
- 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 Gang Bill
While it is important that actions be taken to address violent crime in our state, increasing penalties for gang-related crimes is not supported by research as an effective approach. Meanwhile, HB 169 would lock up more people for long periods of time, have a disproportionate impact on poor communities of color, and cost the state over $19 million.
Studies show that intervention to move young people away from criminal activity is more effective than harsh, long-term incarceration. Effective interventions include 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. 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.
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 inadvertently promoting gang solidarity, antagonism to law enforcement and gang involvement as a prison survival strategy, and decreasing legitimate opportunities for those involved with gangs to re-enter society once released. Our state already has racial disparities in its criminal justice system, and some state-level data suggests African American Kentuckians who become involved in the criminal justice system may be more likely to be charged with more serious crimes than those who are white.
The cost estimate of $19.5 million is based on information about validated gang members currently incarcerated, but under HB 169 the number of people in the criminal justice system being identified as gang members — and therefore serving much longer sentences — would likely increase along with costs (given the expanded definition of criminal gang in the bill and the evidence to prove membership). It is concerning that this legislation is being proposed at the same time it’s become clear that Kentucky’s inmate population will grow an additional 19 percent — with a cost of $600 million — over the next 10 years if we do not enact needed reforms to our criminal justice system. If HB 169 passes these projections will be even worse. The state recently reached its highest inmate population in history, and testimony from the Justice Cabinet revealed every jail and prison bed in the state will be full by May 2019.
Any public dollars available to address gang activity 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.
