Big League Gangfighting in the Volunteer State

In The odds of finding a "pattern of criminal gang activity" we examined the likelihood of a gang member committing a crime, that he was caught doing, that was considered a felony, twice, within a five-year period, after committing a prior crime for which he was caught and convicted . . . 


I know, it's confusing . . . perhaps it will still be applied.


Despite my suspicions that the law will not be used heavily by prosecutors, I am impressed that it is law, and available. This is all part of the legislature's move to place criminal gang offenses within the state’s existing Racketeer-Influenced and Corrupt Organizations Act, or RICO, where convictions would be class B felonies with sentences ranging from at least 12 to 20 years (as we discussed in Gang Laws and their inability to be useful against real criminals.


While RICO was originally aimed at the Mafia, over the past four decades, prosecutors have used it against many organized crime groups: street gangs, gang cartels, corrupt police departments and even politicians. To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise. 


The TN Legislature appears to be making a shift toward acknowledgement that gangs are more of an organized crime problem than a juvenile delinquency problem.


BRAVO!


This shift puts us in, or at least heading toward, the Big Leagues, where states like New York, Illinois, and California (motivated by crime in New York, Chicago, and Los Angeles) have (and have had) similar laws.


Not so bravo


According to New York Criminal Procedure:  (b) A criminal act is "a part of" a pattern of criminal activity when alleged in a count of enterprise corruption when it is committed prior

  to commencement of the criminal action in which enterprise corruption is
  charged and was committed in furtherance of the same  common  scheme  or
  plan or with intent to participate in or further the affairs of the same
  criminal  enterprise  to  which  the crimes specifically included in the
  pattern are connected.

I take that to mean the crime has to be gang (or other organized crime group)-related.


Illinois defines a pattern as 2 or more gang-related criminal offenses committed in whole or in part within this State when: (1) at least one such offense was committed after the effective date of this Act;(2) both offenses were committed within 5 years ofeach other; and(3) at least one offense involved the solicitation tocommit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 1961."Course or pattern of criminal activity" also means one or more acts of criminal defacement of property under Section 21-1.3 of the Criminal Code of 1961, if the defacement includes a sign or other symbol intended to identify the streetgang.


So it appears Illinois requires the gang member to be careless enough to commit repeated crimes within the state, but they specifically include graffiti as a repeated offense?


California appears similar to ours with their Section 186.22(e), which defines a “pattern of criminal gang activity” as the “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the offenses [enumerated therein] . . . committed on separate occasions, or by two or more persons . . . .”

So where do we go from here?


What do you think?

Public disclaimer: I am a founding board member of the Tennessee Gang Investigator's Association.

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The odds of finding a "pattern of criminal gang activity"

According to Tennessee § 40-35-121. Criminal Gang Offenses—Enhanced Punishment—Procedure, a "Pattern of criminal gang activity" means prior convictions for the commission or attempted commission of, or solicitation or conspiracy to commit either:

• Two (2) or more criminal gang offenses that are classified as felonies; or
• Three (3) or more criminal gang offenses that are classified as misdemeanors; or
• One (1) or more criminal gang offense that is classified as a felony and two (2) or more criminal gang offenses that are classified as misdemeanors; and
• The criminal gang offenses are committed on separate occasions; and
• The criminal gang offenses are committed within a five-year period.

Put another way, it means the (presumably street-wise) gang member has to avoid conviction of all but two times he commits a felony in five years to keep from having this enhancement apply to his actions. 

To understand how easy this is, consider the arrest rate of people, generally, for all crimes, bearing in mind that gang members have a built-in mentoring and arrest avoidance program. 

The FBI reports an arrest rate based on the population. They reported in 2009 that the arrest rate was 4,478.0 arrests per 100,000 inhabitants of the total estimated United States population (violent crime was 191.2 per 100,000 and property crime was 571.1 per 100,000). That means that an estimated 4500 arrests were made for every 100,000 people, or 4 1/2 per 100 (4.5%).

This method of calculation shows arrest rates but what about the arrest percentage, or: How likely is a perpetrator to get arrested for committing a crime? 

This is often represented by a crime funnel. The funnel represents the much lower number of crimes detected and punished by the criminal justice system than the number actually committed. Early in the criminal justice system (where the police are), many arrests are made, but the number to be prosecuted shrinks as they are removed from the process. Some are dismissed, while others get referred for treatment or counseling. 

Here's an example:

Note that the basic numbers go like this. For every 1,000 crimes committed, 500 of them (that's half) are reported to the police. Of the 500 reported to the police, 100 arrests (that's 20% of the crimes reported and 10% of the crimes committed) are made.

And now that the police have done the hard work, the folks in the rest of the "system" take over.

Of the 100 arrests, about one-third (35%) are juveniles, and 30 of them are put on probation or have their cases dismissed. Though many gang members are juveniles, you can imagine how that wraps up -- stick with me for the adult analysis. 

Of the 100 arrests, about two-thirds (65%) are adults, and 25 of those cases are dropped. Of the 40 people remaining, prepared for court (a function of the Courts part of the Criminal Justice System), 10 jump bail, abscond, or otherwise take affirmative action to avoid further prosecution. From the remaining 30, 27 plead guilty in court, 2 who didn't are found guilty, and 1 (of 30 who remain of the 100 arrested for the 1000 crimes) is acquitted. 

Note, if you will, that acquitted is not the same as innocence -- it's the same as there wasn't enough evidence to support the charges. Note, also, that the court system is where multiple incidents can be combined into one and felonies can turn into misdemeanors.

Of the 29 people sentenced, 8 of them (about 27%) are placed on probation and 21 of them are incarcerated (both are functions of the Corrections part of the Criminal Justice System).

To make sure we have that locked in and comprehended -- for every 1000 crimes committed, 500 (half) get reported. Of the reported crimes, 100 arrests (one-fifth) are made. Of the people arrested, about 29 people (less than 30% of those arrested) are convicted, and 20 (one-fifth) are incarcerated. That's a little different than the FBI numbers, don't you think?

So, assuming a gang member doesn't get locked up for five years, they have to fight the odds of getting convicted of two separate felonies or three separate misdemeanors during that time OR they can be identified as being involved in a pattern of criminal gang activity.

What are the odds of that?

  

See also: 

Gang Laws and their inability to be useful against real criminals

A great civil law tool -- injunctions and related actions against gangs -- but what about civic involvement -- Southern Style!

It's not been covered too much in the news, but check out Metro Files Lawsuit Against Accused Gang Members: Metro's legal department has filed a lawsuit against the Kurdish Pride Gang (KPG) and several of their alleged members, asking that they be declared a public nuisance. Wouldn't it be nice if all the gangs and other organized crime groups -- heck, even regular everyday criminals -- could be declared a nuisance?


Unfortunately, there don't seem to be enough citizens who are 1) annoyed and 2) able to stand up for themselves. I completely support the MNPD's actions, but why is it they seem to be the only ones acting like gangs in our communities are a bad thing? These groups have been treated as if they are living the American Dream -- and unfortunately in many cases, they are. 


Typical responses to gang behavior include public (community or neighborhood based) official (using the criminal justice system) and legislative (local, state, and federal legislative bodies) action.  Local anti-gang legislation like civil abatement laws, injunctions, and restrictive ordinances rarely make an impact on gangs, though they often force a move out of "our neighborhood". With these injunctions, gang-free zones are sought (like public parks or neighborhoods). 


In this country, it′s not against the law to be a member of a gang. The First Amendment  gives us the right to join any group or club, assuming we meet their requirements. Implicit within this right is the right to associate with members of the group. That seems to indicate the right includes membership and affiliation with gangs and gang members. What is prohibited is the committing of crimes and other actions that gang members often do. In a nutshell, then, it's legal to be a member of a gang, but not to be an active member, as active gang members commit crimes (or their group would not "qualify" as a gang). The constitutional right to assemble allows us to gather (only) for lawful purposes. Thankfully, the courts have held that the government may prohibit people from associating in groups that engage in and promote illegal activities. 


With injunctions and related actions, the gang is sued as a public nuisance with evidence provided by the police and sometimes members of the community.   Injunctions have been seen to reduce gang member visibility, gang intimidation, and fear of crime by residents.   That works for the community, at least for a time, but we can do better.


The better strategies incorporate the community-based policing efforts that include mobilizing and interacting with community members in a coordinated effort.  When there is an established community policing effort (not unlike what it took to implement bike patrols, drug market interventions, and the use of Data-Driven Approaches to Crime and Traffic Safety -- DDACTS), prosecutors and police can include input from police, prosecutors, merchants, property owners, and other community members when devising strategies like obtaining injunctions, so there's more of a chance the affected parties are included in the decisions.  


Additional work to improve neighborhood cohesion and informal control is needed, but let's not depend entirely on the police to do it.   Gang injunctions should be used on a continuing basis and more resources should be directed into the enforcement and maintenance of gang injunctions, assuming they are effective, but at some point citizens need to get engaged in the process. It starts by teaching children (not just our own, unfortunately) that gangs are a bad thing. We need to change the paradigm, and that requires a relatively long-term commitment. 


The action against the KPG represents the first time a local government has sought to have alleged members declared a public nuisance since criminal gang behavior was added to the state's public nuisance law in 2009. This action (at least the use of injunctions in Nashville) has been planned for a few years. That serves as yet another reason that citizens need to get involved in the push-back effort against gangs. Citizen groups, as evidenced by Occupy Nashville, Wall Street, and so many others, don't have such a long and extended lead time waiting for the legislators, leadership, and courts to synchronize.


Other coverage by NPR here.


What do you think?

All grown up but still banging - when juvenile gang members become adults

Presenting today to the Tennessee Alliance for Children and Families, 8th Annual Education Conference “Achieving Success in the Face of Adversity.” 

Presentation titled All grown up but still banging: What issues can we expect if they don't "age out?”  in Nashville, TN on June 13, 2012. 

All grown up

View more PowerPoint from Carter Smith


Handouts at http://apsu.academia.edu/CarterSmith/Talks/88098/All_grown_up_but_still_banging_What_issues_can_we_expect_if_they_dont_age_out_? 

Gang Laws and their inability to be useful against real criminals

It has been my ongoing impression that the people who create gang laws think that gangs recruit exclusively from the lower-class, uneducated, unambitious parts of our society. Though some of the followers may be found in these populations, a good amount of gang leaders would make good non-gang (read: not criminal) leaders had they made different decisions. There's a term called 3G2 (Third Generation Gangs) that may explain why focusing on the low-hanging fruit (more on that another time) is not a good idea.


With that said, our lawmakers have a habit of offering us feel-good anti-gang laws that either have no teeth or no application. I think the placement of the law in the "Laws On Children, Youth And Families section is an indicator of this.


If the laws lack teeth, police officers cannot use them for what they were (maybe) intended. An example of the no-teeth part might be seen in Tennessee Code Annoted (TCA) 40-35-121, which I have been told is fairly useless as an enhancement guideline for sentencing.


The Code allows for serious gang-related crime to be charged/enhanced one (1) classification higher than the crime committed. The requirements to be met, however, are much steeper than simply showing the suspect is a gang-member. Moving the hurdle higher is like taking the teeth out of it, the law won't be used.


If the laws have no application, then they don't apply to the real world -- indicating the creation of the law was neither well-thought-out nor well-coordinated. An example of this no application part would be the federal legislation "intended" to prohibit active gang members from serving in the military. That's another topic for another day.


Lately, at least in Tennessee, there appears to be a shift. Not only are gang cops consistently busting their butts to identify and arrest criminal gang activity, but now the legislators are showing signs they are listening. 


The new law, introduced by Rep. Vince Dean, R-East Ridge, who introduced the bill along with Sen. Bo Watson, R-Hixson, would place criminal gang offenses within the state’s existing Racketeer-Influenced and Corrupt Organizations Act, or RICO, where convictions would be class B felonies with sentences ranging from at least 12 to 20 years. You should note, though, that cases big enough for RICO-like charges are likely to get the attention of the Federal Prosecutors, as noted by Sgt. Todd Royval. It was the federal RICO laws that were successfully used against the Mara Salvatrucha (MS-13) a few years back.


The measure expands RICO, previously restricted to child pornography and drug trafficking.


It redefines "racketeering activity" to include committing, attempting to commit, conspiring to commit or soliciting or coercing someone else to commit a criminal gang offense, including threatening or knowingly causing injury or death; receiving money or anything of value from the commission of an aggravated burglary; or from the illegal sale, delivery or manufacture of a controlled substance or firearm.


Note that it's the RICO laws that are being expanded, but the original law is being incorporated into it. It will take some time to see if the prosecutors can/will do something with this. I know they could not before this.


What do you think?


Public disclaimer: I am a founding board member of the Tennessee Gang Investigator's Association, headquartered in Hixson, so I might have a propensity to think gang cops don't get enough support.


Like the TNGIA on Facebook!


updated 6/13/12 -- removed dead link to news article (Anti-Gang Law Rarely Used: FoxMEMPHIS.com).

Gangs in Child Welfare

On Friday, I will be in a satellite and internet broadcast panel discussion hosted by the Tennessee Center for Child Welfare (TCCW). The panel will be addressing “Gangs in Child Welfare” on May 18, 2012. Available at the TCCW web site - http://video.tccw.org/video/gangs-child-welfare

•Overview and History of Gangs

•Carter Smith

•Ben Austin

•Meaning/Defining gangs

•Street gangs mentioned by Chaucer (1390) and Shakespeare (1602)

–little known of the members

•Generally accepted criteria for identifying groups as gangs:     

–Three or more members.    

–Members share group identity and other symbols.    

–Members view themselves as a gang, and they are recognized by others as a gang.   

–Permanence and organization.    

–Criminal activity.

•Gang Formation

•Individual needs

–physiological, safety, belongingness, esteem

•Individual responses

–To pressure/Strain

•Community needs

–Security/Economy

•Community responses

–Support/Conceal crime

–Hire/direct Law Enforcement

•Economic association

•Traditional gang organization not unlike traditional business organization

–Fills a void

–Serves community

–Depended upon

•Gangs engage in legitimate business activity.

–Startup funding from ill-gotten gains

–Often use legitimate business to launder money

–Nonetheless, gang businesses serve community

Gang Investigators’ Perceptions of Military-Trained Gang Members (MTGM)

My article, Gang Investigators’ Perceptions of Military-Trained Gang Members (MTGM), written with Dr. Yvonne Doll, Northcentral University, was published in Critical Issues in Justice and Politics  (Volume 5, Number 1, May 2012, ISSN 1940-3186). For access to the Journal - http://www.suu.edu/hss/polscj/CIJP.htm 

Preview at academia.edu - http://apsu.academia.edu/CarterSmith/Papers/1628541/Gang_Investigators_Perceptions_of_Military-trained_Gang_Members_MTGM_

Keywords: articles of gangs in the army, military crime, research articles, us military training gangs, gang-related activity in the us armed forces increasing, dod strategic plan for gangs in the military, army definition of gang, army enlistment, gang activity in the us military, street gangs in the military, percent of military personnel have gang association, gangs in the military

Abstract
Communities everywhere have experienced the negative effects of street gangs.  The presence of military-trained gang members (MTGMs) in the community increases the threat of violence to citizens.  The problem addressed in this study was the apparently growing presence of military-trained gang members in civilian communities.  The purpose of the study was to determine the perceived presence of military-trained gang members and to examine whether there was a relationship between the perceptions of gang investigators regarding the presence and the size of their jurisdictions, the proximity of their jurisdictions to a military installation, and the extent to which investigators participate in anti-gang activities.  The statistical analyses used to test the hypotheses in this study were Pearson and Spearman Correlation Coefficients, independent means t tests, and Ordinary Least Squares (OLS) Regression analysis.  Respondents reported a mean of 11% of the gang members in their jurisdictions were MTGMs.  The Army, Army National Guard, and Army Reserve were identified as the largest sources of MTGMs and the Bloods, Crips, and Gangster Disciples were the gangs most represented.  Recommendations included all branches of the military therein should adopt a uniform definition of gangs.  Military leaders should acknowledge the increase in gang-related crime affecting the military and address the problems caused for both military and civilian communities without attempting to quantify the threat level.  Military leadership should continuously examine the activities of all suspected military gang members to determine active gang affiliation for retention purposes while evaluating any gang affiliation for security clearances.    Military Law Enforcement liaison for recruiters should develop effective communication with local, state, and federal law enforcement agencies to assist with information sharing. 

For access to the complete article, contact the Journal - http://www.suu.edu/hss/polscj/CIJP.htm