No one wants to see Kentucky’s young people drawn into gangs. But to prevent that from happening, we need evidence-based strategies that help people make better choices and strengthen communities. However, House Bill 169 is a far cry from an approach based on the facts, costs the state $19 million and will worsen racial disparities in our justice system.
HB 169 does three main things: It significantly increases criminal penalties for gang recruitment in Kentucky, increases criminal penalties for a range of other crimes if the person convicted can be shown to be a gang member and radically reduces the level of proof needed to claim a person is in a gang. The bill includes enhancements for some misdemeanors as well, including resisting arrest and criminal mischief.
The harsher penalties in HB 169 are not grounded in evidence that they will work to deter gangs. On the House floor, lawmakers supporting HB 169 talked about “sending a message” to gangs and expressed confidence young people would think twice before becoming a gang member and committing related crimes if HB 169 passes. However, the vast majority of deterrence research — research on what actually prevents criminal activity from occurring — does not support these claims.
The two research studies cited in committee as supporting this bill’s approach actually do not examine the impact of gang legislation on crime. David Abrams, one of the researchers cited, has even written about the negative impact of very long sentences on recidivism, the return to prison of those formerly incarcerated.
The experience of other states suggests rather than reducing gang activity, harsher penalties may intensify it as gang solidarity becomes an important strategy for surviving long prison sentences. This should give Kentucky legislators pause, but on the House floor last week the bill sponsor asked state representatives not to be swayed by the example of California, which was the first state to pass legislation of this kind in 1988 and set the example for many other states that have since followed suit. Crime and gangs did not decrease as a result of California’s gang legislation (nor in other states), but incarceration of persons of color and state costs grew.
One way HB 169 and California’s law are similar is the broad definition of gangs. HB 169 would change the definition in Kentucky to just three people — at least two of whom have been charged with crimes in the past five years. These crimes do not have to be specifically violent or drug-related but could include unpaid child support or forgery, for instance. Even according to federal law, a criminal street gang consists of five or more people who have committed crimes in the past five years that are either drug-related or violent. In HB 169, if this group of three has a name in common (or a leader or colors or a geographic location) and the commonwealth says they are a gang, then they can be charged as such.
In California, despite the increasing number of white gang members, it was largely persons of color who received gang sentence enhancements. By 2003, close to half of young African American males in Los Angeles County were in the gang database, often for reasons such as a “suspicious” nickname. Kentucky already disproportionately incarcerates African Americans, whom state-level data suggests are more likely to be charged with more serious crimes. HB 169 will worsen these disparities as sentence enhancements are applied discriminatorily to persons of color who fit the broad gang definition above. The racial residential segregation in Kentucky’s cities, highlighted in Richard Rothstein’s new book The Color of Law, is a related area of concern with HB 169 given geographic location can be a defining characteristic in this broad definition of “gang.”
Research shows interventions in young people’s lives — such as programs that focus on education, training and mentoring — are effective in preventing and reversing gang activity. The state of New York, for instance, was more effective at reducing violent crime than the rest of the country between 1999 and 2012 by implementing place-based, evidence-based interventions.
Partnerships with faith and community leaders already working to prevent violence can be an essential part of such a strategy, and our state has many strong, engaged leaders – some of whom provided testimony in committee in opposition to HB 169.
Kentucky is much better off spending dollars on such strategies, rather than pouring $19 million more into unproven approaches that lock up young people for longer periods of time and worsen racial inequality in our state.
Ashley Spalding, Ph.D., Senior Policy Analyst, Kentucky Center for Economic Policy
Christian Adair, M.Ed., Founder and Director, Alpha League
Kerby Neill, Ph.D., Child Psychologist, Board Member of the Central Kentucky Council for Peace and Justice
David M. Ward, J.D., President, Kentucky Association of Criminal Defense Lawyers