Street Gang Safe Houses: A Survey of State Gang Statutes and the Absence Thereof in America

by Sean E. Harris, copyright 2009

Introduction

Firebombing last month attributed to gang violence may have been part of initiation for one female gang member, something that’s becoming more common in the city, police said. Dutchess Lykes, 19, reportedly was ordered to throw a Molotov cocktail ‘in order to be accepted into a gang,’ according to an affidavit filed in Hamilton County General Sessions Court.1

“Police said the cocktails were the result of an ongoing feud between the Bloods and

Gangster Disciples gang, and that known Blood members targeted homes of known Gangster

Disciples.”2

From drive-by shootings, home invasion robberies, operating prostitution rings, and

homicide, “Gangs are responsible for a significant portion of the crime in many urban

communities and an increasing number of suburban communities across the country.”3 And

by whatever name they may be recognized, be it Bloods4 or Crips,5 hopefully, through the

continued efforts of state legislatures and law enforcement across this nation, all of them will

one day be known in a court of law as “[A]ny ongoing organization, association or group of

three or more persons…which has as one of its primary objective or activities the

commission of one or more criminal activities.”6

1 Jacqueline Koch, Firebombings Linked to Woman’s Gang Initiation, CHATTANOOGA TIMES FREE PRESS (Tennessee), Oct. 17, 2009 at 1 available at LexisNexis and http://www.timesfreepress.com/news/2009/oct/17/firebombings-linked-to-womans-gang-initiation/?local. “Ms. Lykes and four others…face two counts of aggravated arson in connection with Sept. 29 firebombing at two residences on Tomahawk Trail.” id. 2 Id. 3NATIONAL GANG THREAT ASSESSMENT: 2009 ( 2009) 8, http://www.fbi.gov/publications/ngta2009.pdf. 4 Id. at 25. There are an estimated 7,000 to 30,000 Bloods members in the U.S. with Bloods gangs being active in 33 states. Id 5 Id. There are an estimated 30,000 to 35,000 Crips members with Crips Gangs operating in 41 states. Id. 6 VA. CODE ANN. §18.2-46.1 (West, Westlaw through end of 2009 Special Sess. I).

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This article will survey certain state gang statutes and examine whether state legislatures

have provided those statutes addressing gang activity in order to determine if those states

lacking such statutes should take action due to a gang presence in its state.

Section I presents the current status of gangs in the United States, the types of crimes

they commit, and the participation of juveniles in gangs. Section II discusses gang initiation

and recruitment. Section III gives an introduction to the responses that have been given

legislatively to the areas discussed in Sections I and II and explains generally what an anti-

recruitment and gang participation statute is. Section IV analyzes those states in the United

States that lack one of the three areas of gang statutes under analysis, those being a statutory

definition of a gang, a statutory penalty for gang recruitment, a statutory penalty for gang

participation, or in the alternative to a penalty for gang participation, a sentencing

enhancement. This section is broken down by region in which a brief overview for gang

activity in the region is discussed, followed by an analysis of each individual state lacking

one or more of the gang statutes subject to this article, noting the statutes the particular state

has, those it lacks, and whether there is gang activity or a gang presence in the state. Section

V briefly discusses an area for future research. Section VI will then discuss the statutory

forms states should either adopt outright if they are lacking statutes or change to if they

already have some form of statute in place.

Acknowledgement

This article was inspired by, and builds off of Chapter 14 of Lentz School Security, by

Mary A. Lentz who presented an overview of “14:2. State laws and gang activity”; an article

which provides a comparison of gang statutes from several, but not all, states; including gang

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definitions, recruitment, school policies, and property seizures related to gangs.7 While her

actual analysis was not utilized in the writing of this article, the idea of comparing statutes

and conducting a statutory survey would not have come about without her initial work.

However, before discussing the results of the statutory survey conducted for this article

and whether or not gang activity is present in the states lacking one or more of the statutes

surveyed, some background information on gangs is necessary.

Section I. Overview of Gangs

Juvenile gangs have been in the United States since the 19th Century8 with what is

believed to be the first youth gang in the country forming in the 1820s.9 But what is a gang

exactly? The National Gang Center cites to criteria used by several researchers in addressing

that very question, criteria including that

The group has three or more members, generally aged 12-24. Members share an identity, typically linked to a name, and often other symbols. Members view themselves as a gang, and they are recognized by others as a gang. The group has some permanence and a degree of organization. The group is involved in an elevated level of criminal activity.10

The National Gang Threat Assessment for 2009 has found that “Approximately 1 million

gang members belonging to more than 20,000 gangs were criminally active within all 50

states and the District of Columbia as of September 2008.” 11 And while the approximation

7 Mary A. Lentz, §14:2. State Laws and Gang Activity, LENTZ SCHOOL SECURITY (2007-2008 ed.), Westlaw. 8 DONALD J. SHOEMAKER, JUVENILE DELINQUENCY 223 (Rowman & Littlefield Publisher, Inc. 2009) (2009) available at http://books.google.com/books?id=-kLsl369264C&pg=PA223&lpg=PA223&dq=gangs+19th+century&source=bl&ots=GkqUfoxjtS&sig=V19RV6_hFIOuyfv7pb1gnS0UnSY&hl=en&ei=XffiSsSOMYOa8AborpzzAQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAsQ6AEwADgU#. 9 Id. “The first youth gang in America is thought to be a gang called the Forty Thieves, which developed in New York City in the 1820s.” Id. 10 Frequently Asked Questions About Gangs, http://www.nationalgangcenter.gov/About/FAQ#q1 (last visited Nov. 26, 2009) (answering “What is a gang?” on FAQ page). 11 NATIONAL GANG THREAT ASSESSMENT:2009, supra note 3 at iii.

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was later characterized by the assessment as a conservative estimate, these numbers are a

200,000 increase from those in 2005.12 The assessment credited this increase in the number

of gang members being identified to four possible sources, which included better reporting

by law enforcement and also, a key topic of this discussion, gang recruitment.13

Aside from strong numbers, as stated earlier, “Gangs are responsible for a significant

portion of the crime in many urban communities…across the country,” for in addition to drug

trafficking, gangs participate in “[A] host of other criminal activities such as auto theft,

assault, alien smuggling, burglary, drive-by shootings, extortion, homicide, identity theft,

insurance fraud, mortgage fraud, operating prostitution rings, and weapons trafficking.”14

Within this melee of criminality, according to the National Youth Gang Survey Analysis,

a web resource reflecting analysis from ongoing National Youth Gang Surveys,15 as reported

in a statistical analysis chart, 36.5% of gang members were under the age of 18 in 2006.16

Also for the year 2006, this resource reflected that adult gang members dominated the make-

up of gangs in larger cites, while juvenile gang members dominated the makeup of those in

smaller cities and rural counties.17

12 Id. at 6.

Gang membership in the United States was conservatively estimated at 1 million member as of September 2008, based on analysis of federal, state and local law enforcement reporting-an increase from an estimated 800,000 members in 2005. Current estimates include approximately 900,000 gang members residing within local communities across the country and more than 147,000 documented gang members incarcerated in federal, state and local correctional facilities, according to state and federal corrections data.

Id. 13 Id. The other sources were gang members being released from prison and increased awareness of gangs. Id. 14 Id. at 8. 15 National Youth Gang Survey Analysis, http://www.nationalgangcenter.gov/Survey-Analysis#tableOfContents (last visited Nov. 26, 2009) (giving a relatively current look at Youth Gang Surveys.) 16 National Youth gang Survey Analysis, http://www.nationalgangcenter.gov/Content/Images/Graphics/Graphs/age_gangmembers.pdf. (describing the exact percentages reflected in the chart at National Youth Gang Survey Analysis, http://www.nationalgangcenter.gov/Survey-Analysis/Demographics#anchorage, (last visited Dec. 2, 2009)). 17 National Youth Gang Survey Analysis, http://www.nationalgangcenter.gov/Content/Images/Graphics/Graphs/age_gangmembers_areatype.pdf

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As these stats have touched on the quantitative side of gang membership, the following

section discusses another area related to gang membership, gang initiation and recruitment.

Section II. Gang Initiation and Recruitment

“Gangs use the initiation rite as a means of determining if the inductee is mentally and

physically strong enough to be worthy of membership.”18 This article began with the

discussion of a gang initiation carried out by firebombing the homes of rival gang

members.19 This was not an isolated incident, nor isolated to the state of Tennessee.20 In fact

potential members can be inducted in a variety of fashions including being “Beat in”, “Sex

in”, “Blessed in”, or must commit such crimes as armed robbery, murder, rape or a drive by

shooting.21 “Female inductees are frequently ‘sexed in’ by having intercourse with multiple

members of the gang.”22 Worse than that, “It has been reported that females, on occasion,

have been required to consent to sex with a person known to be HIV positive.”23

In addition to the issues surrounding gang initiation, gang recruitment has been attributed

to the increases in membership of gangs24 and is still being engaged in across the nation,

from 43-year old Theodore Olds, who “[U]sed his daughter to recruit gang members inside

(describing the exact percentages reflected in the chart at National Youth Gang Survey Analysis, http://www.nationalgangcenter.gov/Survey-Analysis/Demographics#anchorage, (last visited Dec. 2, 2009).). The analysis for 2006 found that persons under 18 made up 64.9% of gangs in rural counties, and 68.4% in smaller cities. Id. 18 Robert Walker, Initiations, http://www.gangsorus.com/initiations.html (last visited Nov. 26, 2009) (explaining gang initiations). 19 Koch, supra note 1. 20 Two More Arrested in Gang-Related Firebombing of N. Portland Home, http://www.kgw.com/news-local/stories/kgw_102209_news_firebombing_more_arrests.2424053ed.html. On April 22, 2009 an “explosive device was thrown into a home with a family of nine inside.” Id. It was reported on October 22, 2009 that detectives felt the firebombing “stemmed from an attempted gang initiation.” Id. “The victim claims, in January gang members sprayed his home…with bullets. Id. They’ve also vandalized his car and threatened four of his son’s in an effort to recruit them into a Hmong gang.” Id. 21 Walker, supra note 18. 22 Id. 23 Id. 24 NATIONAL GANG THREAT ASSESSMENT:2009, supra note 3, at 6. “Increased gang membership is most likely the result of gang recruitment efforts and the release of incarcerated gang members however….” Id.

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Fairfax High School,”25 to efforts by the Hmong Gang in Portland, Oregon26. As for the

incident involving Olds, according to the search warrant affidavit, “two students have

identified Olds and his daughter as attempting to recruit them into the gang.”27

Given the number of gang members in the country, the crimes they commit, and the

effects of gang recruitment, the next section will discuss the responses states have made to

address these issues legislatively.

Section III. Response

Many state legislatures, in responses to these issues have taken action in the form of

legislation and have defined statutorily what gangs are28, provided penalties for street gang

recruitment29, and penalties for gang participation either through participation statutes30,

sentencing enhancements31, or both32. These three forms of statues were those surveyed

state by state for this article and the subject of the remaining discussion. But, before gettin

to that analysis, in order to give an introduction to what these types of statutes actually

consider and entail, Virginia’s statutory scheme will be u

g

tilized.

25 Paul Wagner, Gang Recruiting Charges for Dad, Teen, Sept. 30, 2009, http://www.myfoxdc.com/dpp/news/local/093009_gang_recruiting_charges_for_fairfax_dad_daughter# 26 Two More Arrested in Gang-Related Firebombing of N. Portland Home, supra note 20. 27 Wagner, supra note 26. 28 See VA. CODE ANN. §18.2-46.1 (West, Westlaw through End of 2009 Special Session I.), ARK. CODE ANN. §5-74-103 (West, Westlaw through end of 2009 Reg. Sess.). 29 VA. CODE ANN. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I), ARK. CODE ANN. §5-74-203 (West, Westlaw through end of 2009 Reg. Sess.). 30 VA. CODE ANN. §18.2-46.2 (West, Westlaw through End of 2009 Special Session I), Ga. Code Ann. §16-5-4 (West, Westlaw through the 2009 Regular Session). 31 ARK. CODE ANN. §5-74-104 (West, Westlaw through end of 2009 Reg. Sess.), MISS. CODE ANN. §97-44-19 (West, Westlaw through end of the 2009 Regular and 1st to 3rd Extraordinary Sessions). 32 CAL. Penal CODE §186.22 (West, Westlaw through c. 652 of the 2009 portion of the 2009-2010 Reg. Sess., the end of 2009-2010 1st, 2nd and 4th Ex. Sess., urgency legislation through c. 31 of the 2009-2010 3rd Ex. Sess. Urgency legislation though c. 31 of the 2009-2010 3rd Ex. Sess., and c. 2 of the 7th Ex. Sess., Gov. s. Reorg. Place No. 1 of 2009, Prop. 1F, approved at the 5/19/2009 election, and propositions on the 6/8/2010 ballot received as of 11/15/2009) (The effective date of this law will be January 1, 2011). (providing the statutory provision that penalize gang participation, provides a sentencing enhancement, and provides the definition of “criminal street gang” under Chp. 11. Street Terrorism Enforcement and Prevention Act.). CAL. Penal CODE §182.5 (West, Westlaw through c. 652 of the 2009 portion of the 2009-2010 Reg. Sess., the end of the 2009-2010 1st, 2nd and 4th Ex. Sess., urgency…) (providing for gang participation charge under the Chp. Covering “Conspiracy” in the code.)

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In addressing gang participation, in Virginia,

A. Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony.

B. Violation of this section shall constitute a separate and distinct offense. If the acts or activities violating this section also violate another provision of law, a prosecution under this section shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby.33

In Virginia, a

Criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.34

In addressing gang recruitment, in Virginia,

A. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor. Any person age 18 years or older who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 6 felony.

33 VA. CODE ANN. §18.2-46.2(West, Westlaw through End of 2009 Special Session I). 34 VA. CODE ANN. §18.2-46.1 (West, Westlaw through End of 2009 Special Session I).

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B. Any person who, in order to encourage an individual (a) to join a criminal street gang, (b) to remain as a participant in or a member of a criminal street gang, or (c) to submit to a demand made by a criminal street gang to commit a felony violation of this title, (i) uses force against the individual or a member of his family or household or (ii) threatens force against the individual or a member of his family or household, which threat would place any person in reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. The definition of “family or household member” set forth in § 16.1-228 applies to this section.35

Virginia does not provide for a sentencing enhancement. However, for two examples of

a sentencing enhancement, the Mississippi statute provides in part,

(2) Any person who is convicted of a felony or an attempted felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be imprisoned for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for that offense.36

In Tennessee, the state’s sentencing enhancement has a different form, providing that

(b) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed. (c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.

35 VA. CODE ANN. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I). 36 MISS. CODE ANN. §97-44-19 (West, Westlaw through end of the 2009 Regular and 1st to 3rd Extraordinary Sessions)

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(d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.37

These three categories of statutes are the subject of the survey analysis to follow. For the

purpose of this article, a state is designated to have addressed gang activity if it provides for

either a gang participation provision or a sentencing enhancement provision. Also, statutory

provisions providing aggravating and mitigating circumstances and other provisions not

directly addressing gangs were not considered as satisfying the three categories of statutes

subject to this survey. With these parameters set out, and examples of the types of statutes

considered in this survey having been provided, the results of the state by state survey

analysis follows below.

Section IV. Analysis

Unlike Virginia, some states have not taken up the sword of justice to address the issues

of gang recruitment and participation statutorily.38 While these states may not be ignoring

the issues of gangs in general, they are failing to take advantage of the full power of the

justice system as other states have.39 The purpose of this analysis is to put legislators,

criminologists, and law enforcement personnel, of a given state, on notice that there is a gang

problem in that state and not all of the legislative tools are being utilized. The analysis to

follow will accomplish this by noting each state lacking one or more the three types of

37 TENN. CODE ANN. §40-35-121 (West, Westlaw through end of 2009 First Reg. Sess.). 38 i.e. Hawaii, Maine, Vermont 39 i.e. LA. REV. STAT. ANN. §15:1403 (Westlaw through the 2009 Regular Session) (providing sentencing enhancement for gang participation), LA. REV. STAT. ANN. §15:1403.1 (Westlaw through the 2009 Regular Session) (providing penalty for gang recruitment), LA. REV. STAT. ANN. §15:1404 (Westlaw through the 2009 Regular Session) (providing definition of a “criminal street gang” as used in Chapter on Criminal Street Gangs), GA. CODE ANN. §16-15-4 (West, Westlaw through the 2009 Regular Session) (providing a definition for and penalizing Gang Participation and Recruitment), GA. CODE ANN. §16-15-3 (West, Westlaw through the 2009 Regular Session) (providing definition of “Criminal Street gang”).

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statutes mentioned above and then briefly analyzing some of the gang activity in each of

those states if any exists. The first section is composed of states from the Southeast part of

the United States.

Southeast United States

“Approximately 9,871 gangs with more than 172,360 members are criminally active in

the Southeast Region, according to 2008 NDTS (National Drug Threat Survey) data and

interviews with law enforcement.”40 Current trends in this area of the country are showing

battles for territory between Hispanic and African American gangs and it is estimated that in

the future the Hispanic gangs in this area will continue to expand the drug trade.41 “The

most significant gangs operating in the region are Crips, Gangster Disciples, Latin Kings,

Surenos 13, and UBN.”42 Of the states in the Souteast region, which, based on a graphic

provided in the NGTA, consist of Arkansas, Louisiana, Tennessee, Mississippi, Alaba

North Carolina, South Carolina, Georgia, and Florida

ma,

43, the states of Arkansas44,

Louisiana45, Georgia46, and Florida47 provide the statutory provisions that are the subject of

40 NATIONAL GANG THREAT ASSESSMENT: 2009 (2009) 20, http://www.fbi.gov/publications/ngta2009.pdf (giving, in this section, an overview of the Southeast Region of the United States and a gang membership graphic, with this region, based on the graphic provided, being made up of the states of Ark., La., Tenn., Miss., Ala., N.C., S.C., Ga., and Fl. Id.). 41 Id. 42 Id. 43 Id. 44 See ARK. CODE ANN. §5-74-103 (West, Westlaw through end of 2009 Reg. Sess.) (providing a definition of “criminal gang” under the Arkansas Criminal Gang, Organization or Enterprise Act), ARK. CODE ANN. §5-74-104 (West, Westlaw through end of 2009 Reg. Sess.) (defining and penalizing gang enhancement penalty), ARK. CODE ANN. §5-74-202 (West, Westlaw through end of 2009 Reg. Sess.) ( defining “criminal gang” under Subchapter on Recruiting Gang Members) and ARK. CODE ANN. §5-74-203 (West, Westlaw through end of 2009 Reg. Sess.) (providing statutory provision covering gang recruitment.). 45 LA. REV. STAT. ANN. §15:1403 (Westlaw through the 2009 Regular Session) (providing sentencing enhancement for gang participation), LA. REV. STAT. ANN. §15:1403.1 (Westlaw through the 2009 Regular Session) (providing penalty for gang recruitment), LA. REV. STAT. ANN. §15:1404 (Westlaw through the 2009 Regular Session) (providing definition of a “criminal street gang” as used in Chapter on Criminal Street Gangs). 46 GA. CODE ANN. §16-15-4 (West, Westlaw through the 2009 Regular Session) (providing a definition for and penalizing Gang Participation and Recruitment), GA. CODE ANN. §16-15-3 (West, Westlaw through the 2009 Regular Session) (providing definition of “Criminal Street gang”).

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this analysis. As discussed below, the remaining states do not, failing to provide one or mor

of the gang provisions being analyzed. The first state analyzed is

e

Alabama.

not

Alabama

The state of Alabama’s criminal code provides for the criminal activity of gang

recruitment as well as a definition of a “streetgang”48 as it relates to that section.49 In the

state of Alabama, a violation of that section is Class C felony.50 The state however does

appear to provide a penalty for streetgang participation or some form of sentencing

enhancement.

With Alabama lacking the penalty for gang participation, the question then is whether or

not the state has gang activity, which it in fact does. In Alabama, of those counties reporting,

as displayed in a graphic in the 2009 National Gang Threat Assessment, two are shown to

have between 500-2,499 gang members,51 Jefferson and Madison.52 Two other counties in

47 See FLA. STAT. ANN. §874.03 (West, Westlaw through Chapter 2009-270(End)) (defining “criminal gang” and other related definitions), FLA. STAT. ANN. §874.04 (West, Westlaw through Chapter 2009-270 (End)) (providing sentencing enhancement), FLA. STAT. ANN. §874.05 (West, Westlaw through Chapter 2009-270(End)) (penalizing gang recruitment). 48 ALA. CODE §13A-6-26 (Westlaw through End of 2009 Regular and First Special Session, except Act 2009-513). Part (a) states

For purposes of this section, the term “streetgang” means any combination, confederation, alliance, network, conspiracy, understanding, or other similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity.

§13A-6-26 (Westlaw). 49 §13A-6-26 (Westlaw) Part (b)

(b) A person who expressly or by implication threatens to do bodily harm or does bodily harm to a person, a family member or a friend of the person, or any other person, or uses any other unlawful criminal means to solicit or cause any person to join or remain in a streetgang is guilty of the crime of compelling streetgang membership.

§13A-6-26 (Westlaw). Note how this statute requires heightened requirements, where recruitment by itself is not enough, but rather some form of threat or criminal means must be utilized. Id. 50 §13A-6-26 (Westlaw). 51 NATIONAL GANG THREAT ASSESSMENT 2009.,supra note 40, at 20. Information based on graphic provided on this page. 52 Alabama County Map. http://www.censusfinder.com/mapal.htm (last visited Nov. 27, 2009) (providing a county map of Alabama used to note the counties highlighted from the National Gang Threat Assessment that

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Alabama are shown to have between 2,500 and 3,499 gang members,53 Mobile and

Tuscaloosa.54 Even recent law enforcement operations in the state making headlines show

that there is a gang problem that needs to be addressed to the fullest extent possible in the

state.55 Following Alabama, is Mississippi.

Mississippi

The State of Mississippi gives a very comprehensive definitional section on gangs in its

state code. It provided the definition for “streetgang”, “gang member” and makes note of the

role of gang leadership in its definition of “streetgang related”.56 The code also provides for

penalties or sentencing enhancements for crimes committed to basically further the interests

of the gang, basing those penalties in most instances on the underlying offense in conjunction

were unnamed in the graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT 2009. supra note 40, at 20). 53 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. Information based on graphic provided on this page. 54 Alabama County Map, supra note 52. (providing a county map of Alabama used to note the counties highlighted from the National Gang Threat Assessment that were unnamed in the graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20). 55 Erin Stock, Immigrants Arrested as Raids Target Gangs, The Birmingham News (Alabama), September 27, 2009 at 15A available at LexisNexis and http://blog.al.com/birmingham-news-stories/2009/09/immigrants_arrested_as_raids_t.html

An operation targeting street gangs has led to the arrests of 42 immigrants in north and central Alabama in nearly a year, including 23 picked up earlier this month in a four-day sweep, according to U.S. Immigration and Customs Enforcement. The initiative, known as Operation Community Shield, has netted a total of 86 arrests in the state since it began in 2005 as a partnership among ICE, state authorities and local law enforcement. All have been in Jefferson, Shelby and Morgan counties. The 42 most recent arrests came since last Oct. 1.

Id. Most of the charges brought against the suspects arrested in the state have been administrative ones, such as being in the U.S. without documentation, ICE spokesman Temple Black said in response to an information request from The Birmingham News. Some have been charged with crimes such as having a weapon and returning after having been deported. All of them had ties to ''transnational gangs'' such as MS-13, Sureno-13, Vatos Locos and the Latin Kings, Black said.

Id. 56 MISS. CODE ANN. §97-44-3 (West, Westlaw through End of the 2009 Regular and 1st to 3rd Extraordinary Sessions).

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with, again in most instances, a mandatory minimum of one year.57 The code, however, does

not provide a penalty for gang recruitment. The code does provide for some civil actions58

and damages that relate to gangs, with the damages provision appearing to apply even in

criminal situations59, but it is unclear if these civil provisions would address the issue of

penalizing gang recruitment.

57 MISS. CODE ANN. §97-44-19 (West, Westlaw through End of the 2009 Regular and 1st to 3rd Extraordinary Sessions).

(1) Any person who intentionally directs, participates, conducts, furthers, or assists in the commission of illegal gang activity shall be punished by imprisonment for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for an underlying offense and may be fined an amount not to exceed Ten Thousand Dollars ($10,000.00). Any sentence of imprisonment imposed pursuant to this section shall be in addition and consecutive to any sentence imposed for the underlying offense. (2) Any person who is convicted of a felony or an attempted felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be imprisoned for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for that offense. (3) Any person who is convicted of an offense other than a felony which is committed for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct or enterprise by gang members, shall, in addition and consecutive to the penalty provided for that offense, be imprisoned for an additional period of not more than one (1) year. (4) Any person who knowingly and willfully sells or buys goods or performs services for a criminal street gang in furtherance of illegal activity shall be punished by imprisonment for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for the underlying offense and may be fined an amount not to exceed Ten Thousand Dollars ($10,000.00). (5) The court may elect to suspend all or a part of any additional mandatory punishment or enhanced punishment provided for in this chapter to impose alternative punishment in the form of properly supervised community service or placement in an appropriate adolescent offender program, if available, only in an unusual case where the interest of justice would best be served, and if the court specifies on the record and enters into the minutes the circumstances and reasons that the interests of justice would best be served by that suspension of enhanced punishment.

§97-14-19 (Westlaw). 58 MISS. CODE ANN. §97-44-5(West, Westlaw through End of the 2009 Reuglar and 1st to 3rd Extraordinary Sessions). 59 MISS. CODE. ANN. §97-44-13 (West, Westlaw through End of the 2009 Regular and 1st to 3rd Extraordinary Sessions).

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Lacking the recruitment provision, the question again is whether Mississippi has gang

activity or a gang presence in the state, with the answer being yes. Mississippi has six

counties reflecting between 500-2,499 gang members60, and has, within its State, gangs such

the Gangster Disciples,”[O]ne of the largest gangs in Mississippi”61 62, and the Simon City

Royals, whose members were recently arrested on charges for, among other things,

conducting gang activity63. As for the Gangster Disciples, they are a Chicago born street

gang that “[I]s structured like a corporation and is led by a chairman of the board. Gang

membership is estimated at 25,000 to 50,000; most members are African American males

from the Chicago Metropolitan area. The gang is active in 110 cities in 31 states.”64

While Mississippi certainly has taken a great step though its current gang legislation,

more can be done to address what is still an evident gang problem within their state.

Following Mississippi is Tennessee.

Tennessee

60 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 61 Kathleen Baydala, Jackson Gang Suspect Arrested in Tchula, THE CLARION-LEDGER (Jackson, MS), July 9, 2009 at 2B. “A 36 year-old Jackson homicide suspect was in custody Wednesday after being arrested by U.S. marshal fugitive task force in Tchula. Christopher Robertson was arrested…and charged in the June 29 shooting death of Ke’Aunte Scott, 16.” Id. “Authorities have not said why they believe Robertson may have killed Scott, though Robertson is a reputed gang member. ‘He is an admitted Black Gangster Disciple,’ Womack said. Gangster Disciples make up one of the largest gangs in Mississippi.” Id. 62 Big 4: Gangster Disciples, Vice Lords, Crips, Bloods, March 23, 2008 http://www.commercialappeal.com/news/2008/mar/23/big-4-gangster-disciples-vice-lords-crips-bloods/ . The Gangster Disciples are “Also known as Black Gangster Disciples”. Id. 63 Mark F. Bonner, Accused Richland Gang Head in Custody, THE CLARION-LEDGER (Jackson, MS), July 17, 2008, at 1A available at LexisNexis. “The Chicago Crime Commission’s gang Book says the Simon City Royals are probably the Windy City’s oldest predominantly white street gang.” Id. “[T]he gang-known for its black and royal-blue colors-is primarily entrenched in drug and gun sales in Illinois. However, in recent years, the gang has founded satellite operations throughout Mississippi, especially in areas around the Gulf Coast, published reports indicated.” Id. “Last Thursday night, the gang’s alleged activity culminated during a 20-on-three street fight. Richland police descended on the residence and arrested eight…on charges including…conducting gang activity….” Id. 64 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 25.

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The state of Tennessee provides a legal statutory definition of a criminal gang and other

related definitions65, provides for a sentencing enhancement,66 and even a penalty for gang

initiates,67 but fails to provide a straight forward criminal offense for gang recruitment.

As for gang recruitment, in Tennessee, it is an act that could establish a nuisance68 with a

class C misdemeanor penalty for violating a permanent injunction.69 However other states,

such as Virginia, discussed earlier, have addressed recruitment activities without having to go

through nuisance and injunction measures70.

Aside from recruitment, Tennessee’s enhancement statute is quite narrow, being limited

to what it terms as “Criminal gang offense”, which is

any violation of Tennessee law:(A) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or

65 TENN. CODE ANN. §40-35-121 (West, Westlaw through end of 2009 First Reg. Sess.). 66 §40-35-121 (Westlaw). “ “(b) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.”§4-35-121 (Westlaw). “(d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.” §40-35-121 (Westlaw). There are several other provisions for enhancements for gang leaders provided in the statute. §40-35-121(Westlaw) 67 §40-35-121 (Westlaw).

(c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.

§40-35-121(Westlaw). 68 TENN. CODE ANN. §29-3-101 (West, Westlaw through end of 2009 First Reg. Sess.). “(2) "Nuisance" means that which is declared to be such by other statutes, and, in addition thereto, means:… (B) A criminal gang, as defined by § 40-35-121(a)(1), which regularly engages in gang related conduct.” §29-3-101(Westlaw).

‘Gang related conduct’ occurs when one or more criminal gang member(s), as defined by § 40-35-121(a)(2), regularly engages in the following:…(vii) Taking any action to recruit gang members or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace, or destroy the personal property of anyone as an incentive to join a gang;

§29-3-101(Westlaw). 69 TENN. CODE ANN. §29-3-111 (West, Westlaw through end of 2009 First Reg. Sess.). “If any person…violates any permanent injunction…such person commits a Class C misdemeanor.” §29-3-111 (Westlaw). 70 VA. CODE ANN. §18.2-46.3 (West, Westlaw through end of 2009 Special Session I).

16

persons and specifically includes rape of a child, aggravated rape and rape; or (B) That results, or was intended to result, in the defendant receiving income, benefit, property, money or anything of value from the illegal sale, delivery or manufacture of a controlled substance or firearm;.71

This arguably means that the only times gang members will be charged under the purview of

the statute is through certain acts committed during the preparation of an offense or an

offense that is related to drug and gun sales. However, one aspect that makes this statute

different, and arguably more effective from a prosecutor’s perspective, is that there is no

mentioning of the offenses being committed for the benefit of the gang, which, as seen in

other statutes is generally an element that must be shown.72

Nonetheless, Tennessee lacks one of the three statutory provisions, and the question again

is whether or not Tennessee has gang activity or gang presence, and the answer is yes.

According to a graphic provided in the 2009 NGTA, Tennessee indicates, of those counties

reporting, two with between 3,500-9,999, 1 with 500-2,499 members, and over 25 counties

with between 1-499 gang members.73 Next, is South Carolina.

South Carolina

South Carolina provides for the definition of a criminal gang, criminal gang member,

pattern of criminal gang activity, and gang related incident.74 The state also provides a

71 TENN. CODE ANN. §40-35-121 (West, Westlaw through end of 2009 First Reg. Sess.). 72 VA. CODE ANN. §18.2-46.2 (West, Westlaw through End of 2009 Special Session I).

A. Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony.

§18.2-46.2 (Westlaw). See Also Miss. Code Ann. §97-44-19 (West, Westlaw through End of 2009 Regular and 1st to 3rd Extraordinary Sessions). 73 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 74 S.C. CODE ANN. §16-8-230 (Westlaw through End of 2009 Reg. Sess.).

17

statute that addresses gang recruitment75, but provides no indication of a statute for gang

participation or a sentencing enhancement.

South Carolina’s recruitment statute however is not truly much of a recruitment statute at

all, for it does not criminalize the recruitment itself, rather recruiting an individual via

physical violence.76 This means that recruitment essentially is not a criminal act, while

doing it by means of physical violence or with a firearm is. It is important to note howeve

the statute is not worthless when violence is used, as mentioned in the Hmong gang

incident

r

espite

77 provided in the footnotes under the discussion of recruitment. However, d

75 S.C. CODE ANN. §16-8-240 (Westlaw through End of 2009 Reg. Sess.).

(A) It is unlawful for a criminal gang member to use or threaten to use physical violence against another person with the intent to coerce, induce, or solicit that person or another person to actively participate in criminal gang activity, or to prevent another criminal gang member from withdrawing from or leaving a criminal gang. A criminal gang member who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than one thousand dollars or imprisoned not more than two years, or both. A criminal gang member convicted for a second or subsequent offense pursuant to this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both. (B) A criminal gang member who uses a firearm, any other deadly weapon, or physical violence to coerce, induce, or solicit another person to actively participate in a criminal gang, or to prevent another criminal gang member from withdrawing or leaving a criminal gang, in addition to the punishment prescribed in subsection (A), may be punished by an additional fine of not more than ten thousand dollars or by imprisonment for an additional period of not more than ten years, or both. (C) If the person solicited, recruited, coerced, or threatened in violation of this section is under the age of eighteen, an additional term of three years may be imposed in addition and consecutive to the penalty prescribed for a violation of this section. (D) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of the actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member. (E) Nothing in this section limits prosecution under any other provision of law. I

§16-8-240 (Westlaw). 76 §16-8-240 (Westlaw). 77 Two More Arrested in Gang-Related Firebombing of N. Portland Home, supra note 20

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its limitations, the statute is considered a recruitment statute for the purpose of this analysi

however, South Carolina should look to adopting a more general gang recruitment statute,

like that used in Virginia

s,

78.

While the state does provide for a government civil action against gangs for certain

injuries suffered to the government,79 it lacks a direct criminal penalty for gang participation

like, for instance, in Virginia.80

Lacking such a statute, the question again is does South Carolina report gang activity or

presence in the state, and the answer, like for the other states in this section is yes. South

78 VA. CODE ANN. 18.2-46.3 (West, Westlaw through end of 2009 Special Session I).

A. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor. Any person age 18 years or older who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 6 felony. B. Any person who, in order to encourage an individual (a) to join a criminal street gang, (b) to remain as a participant in or a member of a criminal street gang, or (c) to submit to a demand made by a criminal street gang to commit a felony violation of this title, (i) uses force against the individual or a member of his family or household or (ii) threatens force against the individual or a member of his family or household, which threat would place any person in reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. The definition of “family or household member” set forth in § 16.1-228 applies to this section.

§18.2-46.3 (Westlaw). 79 S.C. CODE ANN. §16-8-270 (Westlaw through End of 2009 Reg. Sess. ).

(A) A civil cause of action is created in favor of the State of South Carolina, a county, municipality, or another political subdivision, or an agency or instrumentality of them, that sustains any damage, impairment, or injury proximately caused by a pattern of criminal gang activity as defined in this article, or the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The cause of action created by this section may be brought against a criminal gang, a criminal gang member, or any other person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, or any other person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. (B) Except as provided in this section, an action for injunction, damages, or other relief filed pursuant to this section must proceed according to the common law, statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court.

§16-8-270 (Westlaw). 80 VA. CODE ANN. §18.2-46.2 (West, Westlaw through End of 2009 Special Session I).

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Carolina indicates three counties with 500-2,499 gang members81, and one county,

Orangeburg82, with 3,500-9,999 gang members83. A recent article on gangs and crime in

Anderson County, South Carolina provides every reason for stronger statutes in the state,

stating,

Currently, there are between 300 and 400 known gang members in Anderson County, Mark Gregory said. “But for every one member we know about, there are at least two more we probably don’t know about,” he said. “Also, there are at least 25 gangs now documented as being in the county.” Gangs known to be operating in the county include the Bloods, Crips, Folk Nation, Brick City Boys, Black Mafia and Insane Disciples. The Insane Disciples are a set, or support group, for the Folk Nation.84

Hopefully in the near future South Carolina will begin taking steps to legislatively

continue to address issues such as this. Following South Carolina is North Carolina.

North Carolina

The state of North Carolina provides for the penalty of gang participation and the

definition of a gang85, however, it fails to penalize gang recruitment. It has two provisions,

that appear to address such an issue, but they are statutes that criminalize the act of soliciting

an individual to engage in criminal street gang activity.86 As defined in N.C. Gen. Stat. Ann.

§14-50.16,

"criminal street gang activity" means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit an act or acts, with the specific intent that

81 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 82South Carolina-Detailed County Maps, http://www.sciway.net/maps/cnty/ (last visited Nov, 28, 2009) (providing county map used to match the name of the county with the highlighted county in the 2009 National Gang Threat Assessment graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20 ). 83 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 84 Rick Spruill, Task Force Says Gangs in Anderson are Real, Independent Mail, October 25, 2009, http://www.independentmail.com/news/2009/oct/25/task-force-says-gangs-anderson-are-real/ (giving an overall look at the gang activity in Anderson County). 85 N.C. GEN. STAT. ANN. §14-50.16 (West, Westlaw through S.L. 2009-577(end) of the 2009 Regular Session.). 86 N.C. GEN. STAT. ANN. §§14-50.17, 50.18 (West, Westlaw through S.L. 2009-577(end) of the 2009 Regular Session).

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such act or acts were intended or committed for the purpose, or in furtherance, of the person's involvement in a criminal street gang or street gang. An act or acts are included if accompanied by the necessary mens rea or criminal intent and would be chargeable by indictment under the following laws of this State:….87 The difference is crucial, as these statutes are punishing someone for getting someone

else to commit a crime, as opposed to getting someone else to join a gang, such as in

Virginia88.

With North Carolina lacking one of the statutes, the question is again, does the state have

gang activity or a gang presence, and the answer is yes. According to a graphic provided in

the 2009 NGTA, North Carolina has over 25 counties with between 1-499 gang members,

three with 500-2,499, and one with 2,500-3,499 gang members.89

For the purposes of this article, the sentencing enhancement provision for misdemeanor

offenses90 is not being addressed nor discussed, as North Carolina has already provided a

gang participation penalty. With North Carolina rounding off this section, analysis now

moves to the west coast.

Pacific

“Approximately 6,900 gangs with more than 237,000 members are criminally active in

the Pacific Region, according to 2008 NDTS data and interview with local law enforcement

officials.”91 “The most significant gangs operating in the Pacific Region are 18th Street,

Bloods, Crips, La Erne, Nuestra Familia, and Hells Angels.”92 The Pacific Region for the

purposes of this discussion reflects the NGTA Pacific Region, consisting of Nevada,

87 §14-50.16 (Westlaw). 88 VA. CODE ANN. §18.2-46.3 (West, Westlaw through end of 2009 Special Session I). 89 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 90 N.C. GEN. STAT. Ann. §14-50.22 (West, Westlaw through S.L 2009-577 (end) of the 2009 Regular Session.). 91 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 19. 92 Id.

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California, and Hawaii.93 California94 and Nevada95 provide for the statutory provisions

that are the subject of this analysis. Hawaii does not.

Hawaii

Hawaii is one of the several states in the country that does not provide any of the gang

statutes subject to this discussion. There is no provision giving the definition of a gang, no

statute against gang recruitment, participation or one providing for a sentencing

enhancement. Hawaii does have statutes that consider “the history and characteristics of the

defendant”96. This statute is also referenced in regards to whether multiple terms of

imprisonment should run consecutively or concurrently97. Hawaii also has a case which

appears to acknowledge the ability to introduce “membership” evidence at sentencing98, but

93 Id. 94 CAL. Penal CODE §186.22 (West, Westlaw through c. 652 of the 2009 portion fo the 2009-2010 Reg. Sess., the end of 2009-2010 1st, 2nd and 4th Ex. Sess., urgency legislation through c. 31 of the 2009-2010 3rd Ex. Sess. Urgency legislation though c. 31 of the 2009-2010 3rd Ex. Sess., and c. 2 of the 7th Ex. Sess., Gov. s. Reorg. Place No. 1 of 2009, Prop. 1F, approved at the 5/19/2009 election, and propositions on the 6/8/2010 ballot received as of 11/15/2009) (The effective date of this law will be January 1, 2011). (penalizing gang participation, provides a sentencing enhancement, and provides the definition of “criminal street gang” under Chp. 11. Street Terrorism Enforcement and Prevention Act.) Cal. Penal Code. §186.26 (West 2009) (providing for the penalty for gang recruitment.) This provisions was considered a gang recruitment provision for the purposes of this article. CAL. Penal CODE §182.5 (West, Westlaw through c. 652 of the 2009 portion of the 2009-2010 Reg. Sess., the end of the 2009-2010 1st, 2nd and 4th Ex. Sess., urgency…) (providing for gang participation charge under the Chp. Covering “Conspiracy” in the code.) 95 NV Legis 112 (2009) (providing amendment, already approved by the Governonr on May 19, 2009, that will amend Nev. Rev. Stat. Ann. §193.168 which will, as it does currently (See NEV. REV. STAT. ANN. §193.168 (West, Westlaw through the 2007 74th Regualr Session and the 25th Speical Session (2008) fo the Neveda Legislature and technical correction received from the Legislature Counsel Bureau through theh 25th Speical Session (2008). ), provide for sentencing enhancement and define criminal gang as used in this section, and soon, via the amendment “Sec.2. chapter 201 of NRS”, as stated in the bill, will then include a gang recruitment charge). 96 HAW. REV. STAT §706-606 (Westlaw with amendments through the 2009 Second Special Session). 97 HAW. REV. STAT. §706-668.5 (Westlaw, with amendments through the 2009 Second Special Session). 98 81 Hawai’I 309, 323-324 916 P.2d 1210, 1223-1224 (1996). “In United States v. Lemon, 723 F.2d 922 (D.C.Cir.1983), the United States Court of Appeals for the District of Columbia outlined a three-part test to determine the sufficiency of “membership” evidence at sentencing.” Id. at 1224, 916 P.2d at 323.

The reasoning of Lemon controls the determination as to whether there was sufficient evidence to establish a reasonable correlation between Vinge's association with the Hawaiian Home Boys and the imposition of consecutive terms of imprisonment. Like the defendant in Lemon, Vinge was given a harsher sentence, in part, for his mere association with a group. The prosecution, in the instant case, never established, either during Vinge's trial or at his sentencing hearing, that the Hawaiian Home Boys were engaged in, or even endorsed,

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despite these provisions, this discussion is about statutory responses to gang activity, not

aggravating99 and mitigating factors at sentencing.

With the state in its current statutory status, the question is does Hawaii have gang

activity, and the answer is yes. The graphic provided in the 2009 National Gang Threat

Assessment indicates each island reports having between 1-499 gang members.100

Additionally, according to a 2002 Hawaii Drug Threat Assessment, it was also reported that

In Hawaii there are more than 140 street gangs with over 1,500 members. Most gang-related crime is attributed to Filipino, Hispanic, Native Hawaiian, Samoan, and Tongan street gangs. These gangs distribute most drugs at retail level throughout Hawaii.101

Gang activity is even making recent news in Hawaii over controlling drug trafficking in

Chinatown.102

Hawaii cannot ignore its gang problems and has to take steps to address them now before

they worsen. Adopting the three statutes discussed above would be a step in the right

direction. Leaving Hawaii, analysis moves to the north east part of the county.

illegal activities or that Vinge's criminal actions were in furtherance of any such illegal activities.

Id. at 324, 916 P.2d at 1225. 99 Id. at 324, P.2d at 1225

Because Vinge's mere association with the Hawaiian Home Boys bore no reasonable relationship to the consecutive sentences imposed and because Vinge's supposed “gang-related activity” clearly served as an aggravating factor in imposing his sentence, we hold that the sentencing court exceeded its statutory authority when it considered Vinge's ‘membership’ with the Hawaiian Home Boys as a basis for sentencing Vinge to consecutive terms of imprisonment.

Id. 100 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. 101 Hawaii Drug Threat Assessment: May 2002, http://www.justice.gov/ndic/pubs07/998/overview.htm (last visited Nov. 28, 2009) (providing information relating to the Hawaii Drug Threat Assessment as of May 2002). 102 Leila Fujimori, Gangs Will Lose, HPD Chief vows: Rival Drug Dealers are Spilling Blood in an Effort to Control Chinatown’s Street, HONOLULU START BULLETIN, Posted April 7, 2009, http://www.starbulletin.com/news/20090407http://www.starbulletin.com/news/20090407_Gangs_will_lose_HPD_chief_vows.html_Gangs_will_lose_HPD_chief_vows.html. “A San Francisco-based gang is fighting with local gangs for control of drug trafficking in Chinatown, triggering the recent spate of violence, Honolulu Police Chief Boisse Correa Said Yesterday.” Id.

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New England

“Approximately 640 gangs with more than 17, 250 members are criminally active in the

New England Region according to 2008 NDTS data and local law enforcement reporting.”103

“The most significant gangs operating in the New England Region are Hells Angels, Latin

Kings, Outlaws, Tiny Rascal Gangster Crips, and UBN.”104 UBN stands for United Blood

Nation.105

New England arguably, if based just on the presence of absence of states with the gang

statutes subject to this article, could be the most fertile grounds for gang activity in the

country. The states making up this region based on the graphic provided by the 2009 NGTA

are Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island.106 Of

the six states that make up this region, as discussed in the sections below, only one state,

New Hampshire provides all the statutes subject to this analysis, providing a penalty for gang

recruitment107, as well as a statutory provision that gives a section specific definition of a

criminal street gang, and providing for specific sentencing provisions at jury trials for acts

committed as a gang member or for the benefit of a gang, although it is not clear is such

provisions are enhancements or not108. The first state under analysis is Maine.

Maine

103 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 104 Id. 105 Id. at 27. “Bloods is a universal term that is used to identify both West Coast Bloods and United Blood Nation (UBN).” Id. “United Blood Nation (UBN) is a loose confederation of street gangs, or sets….Membership is estimated to be between 7,000 and 15,000 along the U.S. eastern corridor.” Id. 106 Id. at 17 107 See N.H. REV. STAT. ANN. §644:20 (Westlaw updated with laws through the end of the 2009 Reg. Sess., not including changes and correction made by the State of New Hampshire, Office of Legislative Services) (penalizing gang recruitment). 108 N.H. REV. STAT. ANN. §651:6 (effective January 1, 2010) (Westlaw updated with laws through the end of the 2009 Reg. Sess., not including changes and correction made by the State of New Hampshire, Office of Legislative Services) (defining “Criminal Street Gang” however, such definition is section specific).

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The State of Maine has no statutory provision defining gangs, nor ones addressing and

penalizing gang recruitment, nor ones providing for either a sentencing enhancement for

gang participation or an actual gang participation offense.

With that being the case, it is necessary to note that Maine does have gang activity as

discussed hereafter. According to the graphic provided in the 2009 NGTA, every county

except three, indicate the presence of between 1-499 gang members.109 Of the three that do

not, one reports zero, and two did not report at all.110 According to an article in Portland

Press Herald, “Federal prosecutors say members and supporter of the Iron Horsemen

funneled drugs from Massachusetts to Maine, where they were distributed throughout the

state. The ring operated from at least 2004 until December 2007.”111 The article also

mentioned that “The Iron Horsemen is one of the largest active motorcycle clubs in Maine”

and that “Along with other clubs, including the Hells Angels, the Saracens and the Bandidos,

the Iron Horsemen are classified by law enforcement agencies as ‘outlaw motorcycle

gangs.’”112 However, according to the article, “Current and former members of the Iron

Horsemen in Maine say the club is not a gang….”113

Maine also has indications of street gangs as well. An article from nine years ago

reflected the current gang situation in Bangor, Maine at that time, mentioning local youths

adopting the names of street gangs such as the Crips, Bloods and Latin Kings.114 However

109 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 110 Id. 111 Trevor Maxwell, Iron Horesemen Drug Trial Pushed Back Until March; Prosecutor Say Members and Supporters Funneled Drugs to Maine Between 2004 and 2007, PORTLAND PRESS HERALD (Maine). December 31, 2008 at B1 available at LexisNexis. 112 Id. 113 Id. 114 Jeff Tuttle, Are Gangs Among Us? Group ‘Colors’ Make Inroads into Bangor, BANGOR DAILY NEWS (Maine), August 26, 2000 available at LexisNexis.

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officials did agree that there was “no direct organizational ties to those violent, big city

gangs.”115 Leaving Maine, the next state analyzed is Vermont.

Vermont

Vermont, like Maine, is another state in the country that does not have any statutes

addressing gang recruitment or participation and neither defines gangs nor provides some

form of a sentencing enhancement. Like the other states in this analysis, the question is

invariably, “Is there a gang problem in that state?” To answer the question , St. Albans, Vt.

would say, if it could, absolutely, as a story, posted in 2008 by NBC WPTZ, reported that

“Chief Gary Taylor said members of the national criminal street gangs like the Bloods, Los

Solidos, and the Latin Kings are operating in the city.”116 He also stated that St. Albans had

a homegrown gang, the Franklin County White Boys, and as for gang activity, he stated that

“there are strong indications about a recent drug bust and an affiliation between the Latin

Kinds (Kings) and a group out of Yonkers, New York City.”117 At the close of the story,

Chief Taylor stated an important observation, stating “I think that there’s a certain segment

of society who would rather that we not say those sort of things, but the truth is the truth, and

I think we’re compelled to speak out when we’re aware of something.”118 Outside of this

report, 10 counties in Vermont have reported between 1 and 499 gang members in their

counties,119 and despite a graphic in the NGTA indicating that Franklin County120 reports 0

115 Id. 116 Have Street Gangs Come to Vermont?”: St. Albans Police Thing So, Posted May 29, 2008, http://www.wptz.com/news/16428799/detail.html http://www.wptz.com/news/16428799/detail.html. 117 Id. 118 Id. 119 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 120 Vermont County Map-Vermont Map, http://county-map.digital-topo-maps.com/vermont.shtml (last visited Nov. 28, 2009) (displaying counties in Vermont and used to find out which county was Franklin County on the NGTA graphic. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17.).

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gang members121, the report on St. Albans above, a city in Franklin County122, indicates

otherwise. Next is Massachusetts.

Massachusetts

Massachusetts also lacks comprehensive gang statutes as well, providing for a very

narrow gang recruitment statute123 that can be easily bypassed, and showing no indication of

a gang participation statute or sentencing enhancement, or a clear cut definition of what a

street gang is.

The gang recruitment statute provided by Massachusetts, if it can be called that, is

extremely narrow when compared to a state such as Virginia124. First, the person “recruited”

has to be a minor and second, the coercive action by the suspect has to be assault and battery

committed “for the purpose of causing or coercing such child to join or participate in a

criminal conspiracy…, including but not limited to a criminal street gang or other

organization or three or more.”125 In Virginia, the simple act of recruiting, basically asking,

is enough, in conjunction with the remaining elements, to satisfy the act.126

121 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 122 Franklin County VT Cities, Towns, & Neighborhoods, http://vermont.hometownlocator.com/vt/franklin/ (last visited Nov. 28, 2009) (listing Saint Albans as a Incorporated Place in Franklin County. Id.). 123 MASS. GEN. LAWS. ANN. ch. 265, § 44 (West, Westlaw through Chapter 155 of the 2009 1st Annual Sess.).

Whoever commits an assault and battery on a child under the age of eighteen for the purpose of causing or coercing such child to join or participate in a criminal conspiracy in violation of section seven of chapter two hundred and seventy-four, including but not limited to a criminal street gang or other organization of three or more persons which has a common name, identifying sign or symbol and whose members individually or collectively engage in criminal activity, shall, for the first offense, be punished by imprisonment in the state prison for not less than three nor more than five years or by imprisonment in the house of correction for not more than two and one-half years; and for a second or subsequent offense by imprisonment in the state prison for not less than five nor more than ten years.

§44 (Westlaw). 124 Va. Code Ann. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I). 125 §44 (Westlaw) 126 §18.2-46.3 (Westlaw). In part, “A. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor.” §18.2-46.3 (Westlaw).

27

Additionally, this statute fails to give a clear cut definition of a street gang. It states “a

street gang or other organization of three or more persons.”127 Is a street gang an

“organization of three or more persons which has a commonname” 128 or is it something

separate from that?

Without a strong gang recruitment statute, a clear cut definition of a criminal street gang,

and no punishment or sentencing enhancement indicated for engaging in or participating in

gang activity, Massachusetts is failing to fully address the very real gang presence in its state.

As indicated in the NGTA, the state indicates four counties with between 500-2,499 gang

members, those being Worcester, Middlesex, Essex and Bristol. 129 130 Suffolk County131,

where Boston is located, indicated between 2,500-3,499 gang members132.

Just in recent months, gangs have been making headlines in some form or fashion in

Massachusetts. While not indicating if it was gang related, on October 26, 2009 two

members of the Latin Kings gang were shot at two different locations in Holyoke133. On

October 8, 2009, in Springfield, “More than a dozen Members of the city’s most troubling

street gangs were arrested Thursday.”134 “Early morning arrests by the Western

Massachusetts Gang Task Force honed in on that neighborhood and it three pervasive street

127 §44 (Westlaw). 128 §44 (Westlaw). 129 Massachusetts County Map-Massachusetts Map, http://county-map.digital-topo-maps.com/massachusetts.shtml (last visited Nov. 29, 2009) (providing a county map of Mass. used to match the name of the counties to those nameless counties on the map of Massachusetts in the NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009. supra note 40, at 17). 130 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 131 Massachusetts County Map-Massachusetts Map, supra note 129 (providing a county map of Mass. used to match the name of the counties to those nameless counties on the map of Massachusetts in the 2009 NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17) 132 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 133 Mike Plaisance, 2 Gang Members Shot in Holyoke, THE REPUBLICAN (Mass.), October 27, 2009, http://www.masslive.com/chicopeeholyoke/republican/index.ssf?/base/news-23/1256633497270330.xml&coll=1. 134 Stephanie Barry, 13 Suspected Gang Members Arrested in Springfield Drug Sweep, October 8, 2009, http://www.masslive.com/news/index.ssf/2009/10/nine_suspected_gang_members_ar.html.

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gangs: the Eastern Avenue, Sycamore Street and Bristol Street ‘posses’”135. And on

September 25th, 2009, in Cambridge, “Police said gang members stabbed a 16-year-old boy

in the neck,” with the victim telling the police “his attackers were members of the Latin

Kings Street gang”136.

However, in a recent development in Massachusetts, the City Council of Springfield is

taking matters into their own hands in addressing the gang problem in its city as “The City

Council gave first-step approval…to an ordinance” which “specifically prohibits gang related

conduct, particularly recruitment.”137 “Under the ordinance any person involved in gang

activity is subject to a $100 fine for a first offense, a $200 fine for a second offense and a

$300 fine for the third and subsequent offense.”138 While this ordinance will only be

addressing the issue financially, it will be interesting to see how this ordinance, and similar

ordinances that seek to tackle these issues financially, fair in the long run. Hopefully, this

ordinance will do more than tackle a local gang problem and generate revenue, but will send

a message to the state legislature that the cities and townships of Massachusetts want and

need more measures in tackling the gang problem in the state. Following Massachusetts in

Rhode Island.

Rhode Island

Rhode Island, like the states of Vermont and Maine do not provide any statutes

addressing gang recruitment, gang participation, or provide a definition of a street gang or in

the alternative to a penalty for gang participation, a gang sentencing enhancement provision. 135Id. The Article went onto state that “Investigators estimate there are 300 members collectively, and among them, they have amassed 264 adult arraignment.” Id. 136 George P. Hassett, Cambridge Cops Investigate Three Stabbings, WICKED LOCAL CAMBRIDGE, Posted October 1, 2009, http://www.wickedlocal.com/cambridge/news/x366032106/Cambridge-cops-investigate-three-stabbings-in-Cambridge. 137 Peter Goonan, Anti-Gang Measure Makes Progress, THE REPUBLICAN, October 20, 2009, http://www.masslive.com/metrowest/republican/index.ssf?/base/news-22/125602690719230.xml&coll=1 138 Id. Final passage will be considered in November. Id.

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Like the other states discussed in this section, Rhode Island is not immune to gang

problems, as evidenced by all five counties of Rhode Island according to the 2009 NGTA,

having between 1-499 gang members.139 According to the July 2003 Rhode Island Drug

Threat Assessment,

Generally, gangs in Rhode Island are local in nature and not connected to or affiliated with large, nationally recognized street gangs in other U.S. cities. According to Providence Police Department Narcotic Unit, Bloods, Crips, Eastside, Latin Kings, Southside, Taylor Street, and Westend are the primary street gangs that distribute drugs in Providence.140

According to a recent 2009 article in the Providence Journal Bulletin, the gang issues are not

just centralizing themselves in the Providence area, but are present in other areas of Rhode

Island as well, such as “Woonsocket, Pawtucket, Central Falls, and Cranston.”141 In addition

to the spread in the state is also the presence of violence, evidenced by the recent gang feuds

in Providence that left five people wounded from gun shots back in September.142 Next is

Connecticut.

139 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 17. 140 Rhode Island Drug Threat Assessment: July 2003, http://www.justice.gov/ndic/pubs3/3979/overview.htm (last visited Nov. 29, 2009). 141 W. Zachary Malinowski, Gangwithoutborders, July 27, 2009, THE PROVIDENCE JOURNAL, Pg 1 available at LexisNexis and http://www.projo.com/news/content/SUBURBAN_GANGS_07-27-09_DAF0D4L_v24.398a2a8.html

The ongoing battles between violent street gangs such as the Young Bloods, Hanover Boyz, Asian Outlaw Boyz, MS-13 and Providence Street Boys know no boundaries. It’s no secret that most of the state’s 1,400 gang members are scattered across several Providence neighborhoods in the West End, Smith Hill…, but there is growing number ling in Woonsucket…and Cranston.

Id. 142

A simmering feud among several street gangs erupted in violence…and left five people…with gunshot wounds…. Sgt. Micheal P. Wheeler, head of the Providence Police Gang Unit, said that investigators suspect that the gunfire involved members of the Dark Side Rascals who have been battling with the Hanover Boyz and the Providence Street Boys in the West End.

Id.

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Connecticut

Connecticut fails to provide a statutory response for gang recruitment and gang

participation or sentencing enhancement in the state. It provides a less than adequate

definition of what a gang is, which is even then section specific,143 and like the other states in

New England, has a gang presence in the state as indicated by a July 2002 Connecticut Drug

Threat Assessment which stated that

Organized street gangs distribute drugs at the retail level in Connecticut. Some gangs, such as Latin Kings, are nationally affiliated, and others, such as 20 Luv, have no national affiliation. The most significant gangs distributing drugs in Hartford are Latin Kings, Los Solidos, Ñeta, and 20 Luv. Local law enforcement officials report that Latin Kings distribute drugs in New London, New Britain, Meriden, and Danbury. Los Solidos, Ñeta, and 20 Luv distribute drugs in Meriden, and law enforcement officials in New London report that Ñeta members distribute drugs in their jurisdiction. In addition to these established gangs, new gangs are forming, and other gangs such as New York City-based Bloods are expanding into Connecticut, according to the Connecticut Southeastern Gang Activities Group. The Asian gangs Born to Kill, Cambodian Crips, Exotic Foreign Cambodian Crips (EFCC), Fuk Ching, and United Bamboo Gang have recently established chapters in Connecticut and are known to distribute drugs. These Asian gangs are considered the fastest growing gangs in the state.144

Even in the past months, gangs continue to make headlines in Connecticut, from a

shooting at a birthday party at a church hall in Bridgeport,145 to the arrest of a suspected

leader of the Grape Street Crips, a gang in New Haven that “Detectives believe…in recent This article detailed how after Nick Neang and two members of the Dark Side Rascals were fired upon, gunmen, two hours later, who police believe were Dark Side Rascal members, fired into a party that contained members of the Hanover Boyz and Providence Street Boys. Id. 143 Conn. Gen. Stat. Ann. §29-7n (West, Westlaw through the 2009 Jan. Reg. Sess., June Sp. Sess. And June 19 Sp. Sess., and through September Sp. Sess. Public acts 09-1 to 09-4). “(a) For the purposes of sections…, ‘gang’ means a group of juveniles or youth who, acting in concert with each other, or with adults, engage in illegal activities.” §29-7n. 144 Connecticut Drug Threat Assessment: July 2002, http://www.justice.gov/ndic/pubs07/997/overview.htm, (last visited Nov. 29, 2009). 145 Daniel Tepfer, Gang Battle at Birthday Party, CONNECTICUT POST ONLINE, June 15, 2009 available at LexisNexis. “Gunfire erupted at an East Side church hall during a birthday party Friday night as gangs form opposite sides of the city squatted off, police said.”Id. “The event was crashed by members of the rival East Side and West Side gangs.” Id.

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months…have been organizing, recruiting members and expanding throughout the city under

the direction of Brown and his associates.”146

Connecticut needs to implement gang participation and gang recruitment statutes to

address these problems. Leaving the north east, the next states under analysis are from the

middle of the country.

Central

The Central Region in the NGTA is composed of 13 states.147 “More than 5,800 gangs

with approximately 22,400 members are criminally active in the Central Region, according to

NDTS 2008 data and interviews with local law enforcement officials.”148 That is the

equivalent of two Army Divisions.149 “The most significant gangs operating in the Central

Region are Chicago-based Gangster Disciples, Latin Kings, Vice Lords and Black P.

Stones.”150 Of the states in the Central Region, only North Dakota151, Kansas152, Iowa153,

146 City Cops Arrest Suspected Gang Leader, NEW HAVEN REGISTER (Connecticut), October 23, 2009 available at http://www.nhregister.com/articles/2009/10/23/blotter/doc4ae18945350c1238961945.txt. Brown “faces two counts of possession of narcotics, and sale within 1,500 of school, violation of probation.” Id. 147 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. States include, North Dakota, South Dakota, Nebraska, Kansas, Minnesota, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, Ohio, and Kentucky. Id. 148 Id. 149 DEPARTMENT OF THE ARMY PAMPHLET 10-1: ORGANIZATION OF THE UNITED STATES ARMY, (1994) 53, http://www.army.mil/usapa/epubs/pdf/p10_1.pdf. A chart stated that a division is between 10,000-15,000 soldiers. Id. 150 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 151 See N.D. CENT. CODE §12.1-06.2-03 (Westlaw, through the 2009 Regular Session) (penalizing gang recruitment), N.D. CENT. Code §12.2-06.2-02 (Westlaw, through the 2009 Regular Session) (penalizing gang participation), N.D. CENT. CODE §12.1-06.2-01 (Westlaw, through the 2009 Regular Session) (defining “Criminal Street Gang” as used in the “Criminal Street Gangs” Chapter and other related definitions.) 152 See KAN. STAT. ANN. §21-4227 (Westlaw, through 2009 Regular Session) (defining and penalizing gang recruitment), KAN. STAT. ANN. §21-4226 (Westlaw, through 2009 regular Session) (providing definition of criminal street gang “As used in K.S.A. 21-4225 through 21-4229….” §21-4226.), KAN. STAT. ANN. §21-4704 (Westlaw, though 2009 Regular Session) (providing a subsection specific definition of a “criminal street gang”, and also providing what for purposes of this article will be considered a sentencing enhancement, in the form of a presumption of imprisonment, “If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.” §21-4704.) This presumption is being considered outside the realm of aggravation and mitigation which this article does not consider enhancement. 153 See IOWA CODE ANN. §723A.3 (West, Westlaw through Acts form the 2009 Reg. Sess.) (penalizing gang recruitment), IOWA CODE ANN. §723A.2 (West, Westlaw through Acts from the 2009 Reg. Sess.) (penalizing

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and Indiana154 provide the statutes that are the subject of this discussion and the remainder do

not, as discussed below.

South Dakota

The State of South Dakota defines the term “Street Gang” and “Pattern of Street Gang

Activity” in its code155, and also provides a sentencing enhancement ,156 but fails to address

gang recruitment.

The question then is does South Dakota have the presence of gangs or gang activity, and

a look at the news in the state indicates that South Dakota is not immune to the street gang.157

158 Hopefully in the future South Dakota will solidify its statutory framework by adopting a

recruitment provision. Following South Dakota is Nebraska.

Nebraska

Nebraska essentially provides no gang statues to address recruitment, participation or

enhancement, and the definition of a street gang that is provided in the code, is limited to the

street gang participation), IOWA CODE ANN. §723A.1 (West, Westlaw through acts from the 2009 Reg. Sess.) (defining “Criminal Street Gang” as used in the Criminal Street Gangs Chapter). 154 See IND. CODE ANN. §35-45-9-5 (West, Westlaw through end of 2009 1st Special Sess.) (penalizing gang recruitment), IND. CODE ANN. §35-45-9-3 (West, West law through end of 2009 1st Special Sess.) (penalizing gang participation/gang activity), IND. CODE ANN. §35-45-9-1 (West, Westlaw through end of 2009 1st Special Sess.) (defining criminal gang). 155 S.D. CODIFIED LAWS §22-10A-1 (West, Westlaw through the 2009 Regular Session and Supreme Court Rule 09-09). “(1) "Street gang," any formal or informal ongoing organization, association, or group of three or more persons who have a common name or common identifying signs, colors, or symbols and have members or associates who, individually or collectively, engage in or have engaged in a pattern of street gang activity;” §22-10A-1. 156 S.D. CODIFIED LAWS §22-10A-2 (West, Westlaw through the 2009 Regular Session and Supreme Court Rule 09-09). “The penalty for conviction of any offense shall be reclassified to the next highest classification in the penalty schedule if the commission of such offense is part of a pattern of street gang activity.” §22-10A-2. 157 SF Gang Unity Makes Hundreds of Arrests, http://www.keloland.com/News/NewsDetail6371.cfm?Id=0,78592. In Sioux Falls, South Dakota, in the last two years, the Sioux Falls Police Department has “…identified 27 active gangs in the city and more than 200 members.” id. 158 Gang Members Among 9 Arrested in Drug Bust, Keloland Television. http://www.keloland.com/News/NewsDetail6371.cfm?Id=0,66856 (last visited Nov. 29, 2009). In Sioux Falls, the bust up of drug ring by Sioux Falls Drug Task Force netted drugs at an estimated street value of $165,000 and included the arrest of two members of the Latin Kings Street Gang. Id.

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juvenile code, and is subject to proposed legislation.159 That proposed legislation is to

address the gang issues facing the state of Nebraska.160 However this legislation appears to

show no indications of penalizing gang participation or for recruiting potential gang

members.

Given the holes in the code, as for whether or not there is a gang presence then in the

state or gang activity, 18 Nebraska counties indicate between 1-499 gang members, one

between 500-2,499, and one between 2,500-3,499.161 Also recent gang activity in the state

shows the presence of the Suernos gang162.

There is however some legislation of note in Nebraska that is potentially pending.

Legislative Bill 508 is to tackle the issues surrounding gang initiation and in part gang

recruitment.163 Its current status is however unknown, being first read in January of 2009.164

More important than the statute itself is the fact that legislators are realizing that there is a

problem and that statutes are a method that can be used to address that problem. Hopefully

159 NEB. REV. STAT. §43-245 (Westlaw, current with all 2009 legislation) (Amended by 2009 Neb. L.B. 63, approved by the Governor May 27, 2009) and provided as follows).

(4) Criminal street gang means a group of three or more people with a common identifying name, sign, or symbol whose group identity or purposes include engaging in illegal activities; (5) Criminal street gang member means a person who willingly or voluntarily becomes and remains a member of a criminal street gang;

§43-245. 160 Neb. Governor Signs Bill Aimed at Gang Violence, May 27, 2009 http://www.ktiv.com/Global/story.asp?S=10431606 “Nebraska Gov. …signed a bill that promises stiffer penalties meant to reduce gang violence. Penalties for more than a dozen crimes will increase under the bill (LB63) signed Wednesday. Also, several new gun, gang and graffiti-related laws will be created.” Id. 161 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 162 Law Enforcement Breaks Up Hispanic Street Gang, Posted June 2, 2009, http://www.kptm.com/Global/story.asp?S=10474965&nav=menu606_2. “Federal agents team up with Omaha police to haul in nearly 70 guns and bust three-dozen alledged gang members and their associates. The 14-month-long investigation targeted members of the Hispanic street gang knows as the Surenos.” Id. The 36 were either associates or members of Suerno and “[a]ll but five were in the U.S. illegally.” Id. 163 LEGISLATIVE BILL 508, 2, http://uniweb.legislature.ne.gov/FloorDocs/Current/PDF/Intro/LB508.pdf (last visited Nov. 29, 2009). 164 Id. at 1.

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in the near future this bill, and other addressing gang activity, will be adopted. Next is

Missouri.

Missouri

Missouri has provided a statutory response to gangs in its state by providing code

sections that define a “criminal street gang”165, penalize gang participation166, and address

sentencing for felonies and misdemeanors committed in association with the gang167. The

state however does not indicate any statute directly addressing gang recruitment.

As asked before, the question becomes does Missouri have a gang presence, is there

activity in the state, and that question can be answered by the fact that 18 counties in

Missouri indicate between 1-499 gang members168, Jackson County169 indicates between

2,500-3,449170, and Saint Louise County171 indicated between 3,500-9,999 gang members172.

Even a Columbia gang has made recent headlines with 16 gang members being “federally

indicted on charges of drug trafficking conspiracies, drive by shootings and illegal possession

165 MO. ANN. STAT §578.421 (West, Westlaw/Vernon’s through the end of the 2009 First Regular Session of the 95th General Assembly, pending corrections received from the Missouri Revisor of Statutes. Constitution is current through the November 4, 2008 General Election). 166 MO. ANN. STAT. §578.423 (West, Westlaw/Vernon’s through the end of the 2009 First Regular Session of the 95th General Assembly, pending corrections received from the Missouri Revisor of Statutes. Constitution is current through the November 4, 2008 General Election). 167 MO. ANN. STAT §578.425 (West, Westlaw/Vernon’s through the end of the 2009 First Regular Session of the 95th General Assembly, pending corrections received from the Missouri Revisor of Statutes. Constitution is current through the November 4, 2008 General Election) 168 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15 169 Missouri County Map with Administrative Cities, http://geology.com/county-map/missouri.shtml (last visited Nov. 29, 2009) (providing map used to identify the county name of counties indicated in the graphic in the 2009 NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009. supra note 40, at 15). 170 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 171Missouri County Map with Administrative Cities, supra note 169. (providing map used to identify the county name of counties indicated in the graphic in the 2009 NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009. supra note 40, at 15). 172 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15.

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of firearms….”173 Given the level of gang activity in the state, a recruitment statute would

again assist the state in its battle against gangs. Following Missouri is Wisconsin.

Wisconsin

The State of Wisconsin has also taken action to begin addressing the gang issues facing

its state by statutorily defining the term “Criminal Gang”174, “Criminal Gang Activity”175,

and in a partial way addresses issues of gang solicitation, by making it a Class I felony to

“intentionally solicit a child to participate in criminal gang activity.”176 Wisconsin, in

addition to its criminal statutes, also provides several statutes that involving enjoining gang

members maintaining a building that is a public nuisance177, as well allowing civil actions

that may be taken against gang members178. However, these statutes are civil and not

punitive in nature. However, despite these provisions, Wisconsin does not provide a statute

addressing either gang participation, or in the alternative, a sentencing enhancement, or a

clear penalty for gang recruitment. The state provides such participation as an aggravating

factor at sentencing179, but this analysis does not consider such statutes as qualifying as a

participation or enhancement statute.

173 Jillian Land, CPD Combats Gang Activity, THE MANEATER, September 4, 2009 http://www.themaneater.com/stories/2009/9/4/cpd-combats-gang-activity/ (This is s student paper for MU). 174 WIS. STAT. ANN. §939.22 (West, Westlaw through 2009 Act 27, Acts 29 through 41, and Acts 43 through 49, published 10/20/2009 ) (Amended or to be amended by 2009 Wis. Act 28). 175 WIS. STAT. ANN. §941.38 (West, Westlaw through 2009 Act 27, Acts 29 through 41, and Acts 43 through 49, published 10/20/2009 ) . 176 §941.38 (Westlaw) 177 WIS. STAT. ANN. §823.113 (West, West law through 2009 Act 27, Acts 29 through 41, and Acts 43 through 49, published 10/20/2009 ) 178 WIS. STAT. ANN. §895.444 (West, West law through 2009 Act 27, Acts 29 through 41, and Acts 43 through 49, published 10/20/2009). 179 WIS. STAT. ANN. §973.017 (West, West law through 2009 Act 27, Acts 29 through 41, and Acts 43 through 49, published 10/20/2009) (Amended or to be amended by 2009 Wis. Act 28).

(c) The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in 939.22(9), with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22(9g).

§973.017 (Westlaw)

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Lacking such statutes, it is important to note, as has been done throughout this analysis,

that Wisconsin is not without gang issues, with 26 counties indicating between 1-499 gang

members, 3 counties in the state indicating between 500-2,499 gang members, and two

counties, outside the Chicago, Illinois area, indicating between 2,500-3,499 gang

members.180 In Madison, Wisconsin, “A recent assessment by the police department’s two-

officer Gang Unit indicated more than 900 confirmed Madison gang members and another

500 people consider associates of the gang members.”181 Also, aside from gang numbers

that cannot be ignored, neither can recent gang headlines, such as indictments being filed ou

of Racine against members of the North Side Gangsters and North Side Vice Lords amon

others

t

g

182, or the reporting that “Eighteen alleged gang members in Milwaukee are facing

federal charged for drug trafficking and violence over a 12-year period,” with the men

allegedly being “members of the Westlaw and Six Trey street gangs.”183 Next is Illinois.

Illinois

The State of Illinois provides a statutory definition for a “streetgang”, however such

definition falls under a Chapter on Civil Liabilities, 184 and the state has also provided a

180NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 181 Steven Verburg, Police Chief: Gang up on Gangs; A New Unit Would Fight Issue on the Rice, Wray Says, WISCONSIN STATE JOURNAL, July 11, 2009 at A3 available at :LexisNexis and http://www.madison.com/wsj/topstories/457974. (providing article addressing actions considered to being taken in Madison to address the gang issues there). 182 John Disdrick and Raquel Rutledge, Indictments Filed Against 41 Alleged Racine Gang Members, JOURNAL SENTINEL Posted on October 22, 2009, http://www.jsonline.com/news/milwaukee/65567462.html “Forty-one men were charged Thursday in federal court with being part of violent, drug-dealing gangs in Racine….” Id. “The latest indictment, unsealed Thursday, targeted two gangs: the North Side Gangsters and the North Side Vice Lords.” Id. “Beside drug dealing, the 41 defendants are suspected in more than 200 acts of violence, including shooting and homicides, all to protect drug-dealing turn in Racine, official said.” Id. “All but six of the 41 defendants were charged with being part of a drug-dealing conspiracy….” Id. The first move by law enforcement in Operation Cracked Cane, “came in June 2008 when 16 members of Racine’s Midtown 12th Street Gangster Disciples were indicted.” Id. 183 18 Alleged Gang Members Face Federal Charges, CHICAGO TRIBUNE, October 20, 2009, http://archives.chicagotribune.com/2009/oct/20/news/chi-ap-wi-gangindictment. 184 740 ILL. COMP. STAT. ANN. 147/10 (West, Westlaw through 96-816, with the exception of 96-741, 96-743…). Defines “Streetgang” or “organized gang” or “gang” or “criminal street gang” as “any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, or 3

37

limited recruitment statute185. In addition to these two statutes, as set out in the Illinois

Streetgang Terrorism Omnibus Prevention Act, in the Civil Liabilities Chapter of the code,

the state provides a civil cause of action that can be brought against a gang186 and also

provides statutory provisions for injunctive relief and damages187. The state of Illinois also

provides sentencing guidelines for “A forcible felony if the offense was related to the

activities of an organized gang”188, as well as holding the fact that “the defendant committed

an offense related to the activities of an organized gang” as an aggravating factor.189 Also, if

an offense committed by a minor “was related to or in furtherance of the criminal activities of

an organized gang or was motivated by the minors…allegiance to an organized gang” then

the court has set out mandatory community service time if the minor is not committed to the

Department of Juvenile Justice, and also applies loss of driving privileges when “the offense

or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity.” 147/10 185 720 ILL. COMP. STAT. ANN. 5/12-6.4 (West, Westlaw through 96-816, with the exception of 96-741…) (Effective January 1, 2010). (This section will be changed from it’s 2009 version and go into effect Jan. 1, 2010, as such I provided the 2010 version.) (The statute is limited in the sense that the act of recruitment must be carried out by the threat of using physical force, and only applies to minors and acts on school grounds. 5/12-6.4. When compared to a broader statute, like the recruitment statute in Virginia, Va. Code Ann. 18.2-46.3 (West, Westlaw through End of 2009 Special Session I), it is clear how narrow the Illinois statute is. ) 186 740 ILL. COMP. STAT. ANN. 147/20 (West, Westlaw through 96-816, with the exception of 96-741…) 187 740 ILL. COMP. STAT. ANN. 147/35 (West, Westlaw through 96-816, with the exception of 96-741…). (It is uncertain whether or not these damages or this code, being under a civil liabilities chapter could reach criminal actions.) 188 730 ILL. COMP. STAT. ANN. 5/5-5-3 (West, Westlaw through 96-816, with the exception of 96-741…) (Effective Aug. 13, 2009). This is the version of the statute effective as of August 13, 2009 and does not relate to early versions of the statute.

(2) A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:….

5/5-5-3 189 730 ILL. COMP. STAT. 5/5-5-3.2 (West, Westlaw through 96-816, with the exception of 96-741…) (effective July 1, 2010).

38

was committed in furtherance of the criminal activities of an organized gang…and…the

offense involved the operation or use of a motor vehicle or the use of a driver’s license.”190

Despite these provisions that are addressing gang issues in the state, the legislature has

not provided a statutory enhancement or a gang participation offense in the alternative.

Granted, the state has provided a penalty for those engaging in a “streetgang criminal drug

conspiracy”191, but this is limited to drug offenses192.

The question as to whether or not Illinois then has gang activity or the presence of gangs,

must be answered in the affirmative with gangs such as the Vice Lord Nation193 and the

Gangster Disciples194 operating in Chicago. Illinois also has 8 counties reflecting between

500-2,499 members, and in the counties surrounding the Chicago area, 1 has between 2,500-

3,499 gang members, another between 3,500-9,999, and the County holding Chicago has

10,000 or more gang members.195 Following Illinois, is Ohio.

Ohio

Ohio provides a definition of a “Criminal Gang”196, penalizes gang participation as a

felony in the second degree197, and provides for what appears to be a separate sentencing

190 705 ILL. COMP. STAT 405/5-710 (West, West law through 96-816, with excpetion of 96-741…). (effective January 1, 2010). 191 720 ILL. COMP. STAT. 570/405.2 (West, Westlaw through 96-816, with the exception of 96-741…). 192 720 ILL. COMP. STAT. 570/401 (West, Westlaw through 96-816, with the exception of 96-741…) (Effective January 1, 2010). The current version will only be effective until then. 193 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 27. “Vice Lord Nation based in Chicago, is a collation of structured gangs located in 74 cities in 28 states, primarily in the Great Lakes Region. Led by a national board, the various gangs have an estimated 30,000 to 35,000 members....” Id. “The main source of income is street-level distribution of cocaine, heroin, and marijuana.” Id. 194 Gangster Disciples, http://foia.fbi.gov/foiaindex/gangsterdisciples.htm. (last visited Nov. 29, 2009) “Gangster Disciples is one of the most violent of four African-American gangs that hang out on the south side of Chicago. They are known for their violence and the distribution of crack cocaine.” Id. 195 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 196 OHIO REV. CODE ANN. §2923.41 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09.)

39

enhancement, or rather what the code terms a “mandatory prison term”198, as set out in Ohio

Rev. Code Ann. §2929.14199, as long as the procedures of §2941.142 are followed200. Ohio

also provides civil remedies in addressing gangs through enjoining the gangs201 and then

allowing punishment for violating injunctions202. However, the State has not addressed the

issue of gang recruitment.

Ohio is not without gang problems such that not having the statute would be a nonissue

for instance, in Dayton, an article in Dayton Daily News discussed the arrest of a member of

the Dayton View Hustlers who fired a shot at funeral goers of Raymond “Bryrd” McDaniel’s

back in May 2009, with the article pointing out that “Nearly half of Dayton’s 15 homicides

this year are gang-related, and there is evidence gangs are expanding their turf outside the

city’s limit, authorities said.”203 Also, back in August, an article reported about the “first

known presence of a national gang” in Cleveland, the Latin Kings, with 12 of 34 people

197 OHIO REV. CODE ANN. §2923.42 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09). 198 OHIO REV. CODE ANN. §2941.142 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09). 199 OHIO REV. CODE. ANN. §2929.14 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09).

(I) If an offender who is convicted of or pleads guilty to a felony that is an offense of violence also is convicted of or pleads guilty to a specification of the type described in section 2941.142 of the Revised Code that charges the offender with having committed the felony while participating in a criminal gang, the court shall impose upon the offender an additional prison term of one, two, or three years.

§2929.14 (Westlaw) 200 §2941.142 (Westlaw). 201 OHIO REV. CODE ANN. §3767.02 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09). 202 OHIO REV. CODE ANN. §3767.07 (West, Westlaw/Baldwin’s through 2009 File 9 of the 128th GA (2009-2010), apv. By 11/24/09 and filed with the Secretary of State by 11/24/09). 203 Lucas Sullivan, Gang Violence Ignores ‘Who Dies in Crossfire’; Not Even Funeral are Safe From Turf Battles, Police Say, DAYTON DAILY NEWS, May 17, 2009 at A1 available at: LexisNexis and http://www.daytondailynews.com/news/dayton-news/police-gang-violence-getting-bolder-122634.html

40

indicted on drug charges being affiliated with the gang.204 Outside of the headline, based on

a graphic provided in the 2009 NGTA, Ohio shows three counties with 500-2,499 gang

members205, and one county, Cuyahoga, where Cleveland is located206, with between 3,500-

9,999 gang members207. Next is Minnesota.

Minnesota

Minnesota provides for the definition of a gang as it applies in section §609.229 and

provides a sentencing enhancement and a possible mandatory minimum sentence208, but does

not provides a penalty for gang recruitment.

With that being the case, Minnesota is not without a gang presence in the state. 5

counties, according a graphic in the 2009 NGTA indicate between 500-2,499 gang members,

one county in the area of Minneapolis indicated between 2,500-3,499 gang members, and

over 20 counties indicate between 1-499 gang members.209

Over 16 known criminal gangs and 300 active gang members operate in the CEE VI jurisdiction, which covers parts of seven counties in southwest Minnesota. Ardoff also says the common theme in all rural Minnesota gang activity is drug dealing and “the big focus of the gang activity is drug distribution.” And with rural gangs dealing popular street drugs like marijuana and methamphetamine, CEE VI Task Force officer Don Schmidy says they’re slowly infiltrating greater Minnesota.210

Michigan 204 Peter Krouse, SWAT Descends on Drug Gang; Pre-Dawn Raids Result in 29 Arrests; Drug Ring Tied to Latin Kings, PLAIN DEALER, August 14, 2009, at B1 available at: http://www.cleveland.com/news/plaindealer/index.ssf?/base/cuyahoga/1250238790222100.xml&coll=2 205 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 206 Ohio County Map with Administrative Cities, http://geology.com/county-map/ohio.shtml (last visited Nov. 29, 2009) (providing graphic used to identify county name on a 2009 NGTA graphic. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15). 207 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 208 MINN. STAT. ANN. §609.229 (West, Westlaw current with laws of the 2009 Regular Session). 209 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 210 Matt Standal, Willmar Authorities Warn: Rural Gangs Steadily on the Rise. http://ksax.com/article/stories/S1233625.shtml?cat=10230 (last visited Nov. 29, 2009) (reporting on rural gangs as well as briefly mentioning the Surenos gang and suspected Sur 13 member Daniel Loera.)

41

The state of Michigan provides for the definition of “gang” as well as a charge of gang

participation, a charge that can carry up to 20 years in prison211, but the state fails to provide

for the penalty of gang recruitment. Mich. Comp. Laws Ann. §750.411v also provides a

section specific definition of the term “gang”212, and is arguably a recruitment statute,

however, it penalizes recruiting someone to help the gang in committing a felony213, not to

become a member.

The question then, as to whether or not Michigan has a gang presence can be answered in

the affirmative as evidenced by the graphic in the 2009 NGTA which indicates at least 15

counties with between 1-499 gang members, 2 with 500-2,499, 1 with 2,500-3,499, and Kent

County214 indicating between 3,500-9,999 gang members215. Following Michigan is

Kentucky.

Kentucky

The Kentucky code defines the term “Criminal Gang” as it is used in the chapter on

Inchoate Offenses and punishes gang recruitment216, however it does not provide a

sentencing enhancement, or in the alternative, a penalty for gang participation.

Kentucky is not without a gang presence, however, as shown in the 2009 NGTA, there is

not one county, of those that reported, indicating over 499 gang members in the state, with at

least 20 counties indicating 1-499 gang members.217 Also, in a July 2002 Drug Threat

211 MICH. COMP. LAWS ANN. §750.411u (West, Westlaw through P.A. 2009, No. 151, of the 2009 Regular Session, 95th Legislature). 212 MICH. COMP. LAWS ANN. §750.411v (West, Westlaw through P.A. 2009, No. 151, of the 2009 Regular Session, 95th Legislature). 213 §750.411v ( Westlaw). 214 Michigan County Map with Administrative Cities, http://geology.com/county-map/michigan.shtml (last visited Nov. 29, 2009) (proving map used to identify a county name of a country on a 2009 NGTA map. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15). 215 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15. 216 KY. REV. STAT. ANN. §506.140 (West, Westlaw/Baldwin’s through end of 2009 legislation). 217 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 15.

42

Assessment, it was stated that “Overall, gang-related violence associated with drug

distribution and territorial dispute throughout Kentucky has decreased and, in some cases,

disappeared entirely except in the largest cities.”218

The assessment also stated that “While some of the street gangs in Kentucky adopt the names of nationally recognized gangs, their affiliation to these gangs are suspect. According to law enforcement authorities in Lexington, some of the gangs in their area have connection to gangs in Detroit. For Knox-Radcliff and Bowling Green law enforcement authorities report that young people who have recently moved into the state from Chicago and Detroit brought gang culture and affiliations with them.219

Kentucky is arguably one of the few states in this analysis that is on the edge as to

whether or not immediate action in having full statutory gang coverage must occur.

However, the presence is still there and still very real, and should not be underestimated.

Leaving the midsection of the nation, analysis continues further west.

North West

The north west region, based on the 2009 NGTA, is composed of the states of

Washington, Oregon, Idaho, Montana and Wyoming and Alaska.220 “Approximately 2,093

gangs with more than 36,650 members are criminally active in the Northwest Region,

according to 2008 NDTS date and interviews with local law enforcement.”221 According to

the NGTA, “The most significant gangs operating in the Northwest Region are Bloods, Crips

(74 Hoover and Rolling 60s), Gangster Disciples, Nortenos, and Surenos gangs, including

Brown Pride, Florencia 13, and Varrio Locos 13.”222 Of those states in the Northwest, only

218 Kentucky Drug Threat Assessment: July 2002, http://www.justice.gov/ndic/pubs1/1540/overview.htm (last visited Nov. 29, 2009). 219 Id. 220 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18. 221 Id. 222 Id.

43

Idaho223, Montana224, and Alaska225 provide the statutory provisions that are the subject of

this discussion. The remainder of the states in this region lack one or more of the statutes,

starting with Washington.

Washington

The state of Washington code provides for the definition of a criminal street gang.226 It

however does not provided for a sentencing enhancement or participation penalty, providing

only similar activity as an aggravating factor to “Considered by a Jury—Imposed by the

Court”.227 The code also does not penalize the act of recruiting gang members. It partially

addresses the issue with a gang intimidation statute limited in scope both by its own terms228

223See IDAHO CODE ANN. §18-8504 (Westlaw through (2009) Chs. 1-334(end) and SJR 101 that are effective on or before July 1, 2009) (defining and penalizes gang recruitment), IDAHO CODE ANN. §18-8503 (Westlaw through (2009) Chs. 1-334(end) and SJR 101 that are effective on or before July 1, 2009) (providing a sentencing enhancement), IDAHO CODE ANN. §18-8502 (Westlaw through (2009) Chs. 1-334(end) and SJR 101 that are effective on or before July 1, 2009) (providing definition of “criminal gang” as used in the chapter entitled Idaho Criminal Gang Enforcement Act.) 224 See MONT. CODE ANN. §45-8-403(Westlaw through all 2007 legislation) (defining and penalizing gang recruitment), MONT. CODE ANN. §45-8-404 (Westlaw through all 2007 legislation) (providing gang participation statute), MONT. CODE ANN. §45-8-402 (Westlaw through all 2007 legislation) (providing definition of “criminal street gang” as used in the Montana Street Terrorism and Enforcement Act). 225 ALASKA STAT. §12.55.137 (Westlaw through the 2009 First Regular Session and First Special Session of the 26th Legislature) (providing for a sentencing enhancement on misdemeanors committed “…for the benefit of, at the direction of, or in association with a criminal street gang….” §12.55.137 (Westlaw)), ALASKA STAT. §11.61.160 (Westlaw through the 2009 First Regular Session and First Special Session of the 26th Legislature) and Alaska Stat. §11.61.165 (Westlaw through the 2009 First Regular Session and First Special Session of the 26th Legislature) (providing in both provisions penalties for gang recruitment), ALASKA STAT. §11.81.900 (Westlaw through the 2009 First Regular Session and First Special Session of the 26th Legislature) (providing the definition under Title 11 for “criminal street gang”.) 226 WASH. REV. CODE ANN. §9.94A.030 (West, Westlaw current with all 2009 legislation). 227 WASH REV. CODE ANN. §9.94A.535 (West, Westlaw current with all 2009 legislation). (Part of this statute has been found unconstitutional but not the portion that is being utilized in this article.) “(aa) The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership.” §9.94A.535. (Westlaw) 228 WASH. REV. CODE ANN. §9A.46.120 (West, Westlaw current with all 2009 legislation).

A person commits the offense of criminal gang intimidation if the person threatens another person with bodily injury because the other person refuses to join or has attempted to withdraw from a gang, as defined in RCW 28A.600.455, if the person who threatens the victim or the victim attends or is registered in a public or alternative school. Criminal gang intimidation is a class C felony.

§9A.46.120 (Westlaw). (N.B. this statutory provision references a different definition of “gang” then that provided for in §9.94A.030.) The statute is arguably limited because of the school requirement, in that it

44

and when compared to a recruitment statute like that in Virginia229. Granted, Washington

does have a statute addressing “Coercion”230 it is still not the same as a gang recruitment

statute like that provided in Virginia231.

With Washington’s statutory scheme in its current condition, it is important to note the

gang presence and activity in Washington with 6 counties indicating between 500-2,499 gang

members232, and King County233, indicating between 3,500-9,999 gang members234. In

Grant County, “According to officials, in the past six years the expanse of the county has

made it a ‘quasi-safe haven’ for between 20-25 Latino gangs, that identify with either the

Norteno or Sureno brands. Officials have documented 350 know gang members, and as

many as 200 more gang associates.”235 According to Grant County Undersheriff John

Turley, “’Our intelligence tells us there has been a big push by California prison gangs to

bolster their population.” Since January of 2009 five gang related homicides have been

appears that if neither attend school this statute is inapplicable. §9A.46.120 (Westlaw). This statute also partially gets to recruitment, but again, aside from the school element, see §9A.46.120, is limited when compared to a recruitment statute like VA. CODE ANN. 18.2-46.3 which does not require the threatening of bodily injury. VA. CODE ANN. 18.2-46.3 (West, Westlaw through End of 2009 Special Session I). Granted, it is understood that these are two different statutes as Washington as §9A.46.120 is clearly getting at gang intimidation. WASH. REV. CODE ANN. §9A.46.120 (Westlaw). 229 See VA. CODE ANN. 18.2-46.3 (West, Westlaw through End of 2009 Special Session I). 230 WASH. REV. CODE ANN. §9A.36.070 (West, Westlaw current with all 2009 legislation). “(1) A person is guilty of coercion if by use of a threat he compel or induced a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in.” §9A.36.070 (Westlaw). (The statue goes on to define threat). 231 VA. CODE ANN. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I). “Any person who solicits, invites, recruits, encourages or otherwise causes attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor.” §18.2-46.3 (Westlaw). 232 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18. 233Washington County Map, http://www.mapsofworld.com/usa/states/washington/washington-county-map.html (last visited Nov. 29, 2009) (providing map used to locate a county on a graphic in the 2009 NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18). 234 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18. 235 Sara Leaming, Drawing A Line; With Five Gang-related Homicides and More than 30 Drive-by Shootings Since January, Far-flung Grant County is Facing a Growing Threat to Public Safety, SPOKESMAN REVIEW, August 9, 2009 at A1 available at LexisNexis and http://www.spokesman.com/stories/2009/aug/08/grant-county-crossfire-gang-war/.

45

inv 30 gang-related drive-by

shootings.”

pecific.236 Aside from this definition

9

en at Gresham apartment complex239.” Referring back to the first article

estigated, and “At the same time, there have been more than

But Washington is not alone, as Oregon is discussed next.

Oregon

The state of Oregon does provides a definition of a “gang” however it is under a Title

concerning Education and Culture and is section s

however, Oregon does not provide a penalty for gang recruitment or provisions addressing

gang participation or a sentencing enhancement.

Like the state of Washington discussed above, Oregon too has a gang presence, with 1

counties indicating between 1-499 gang members and 4 counties indicating between 500-

2,499 gang members.237 In recent news reports in the state, gang rivalries have made the

headlines in Portland, with arrests being made after a gang fight between the Locos North

Side Nortenos and the Compton Varrio tortilla Flats238, as well an article mentioning a

rivalry between the Bloods and the Crips which “led to the New Year’s Eve Killing of two

18-year-old m

236 OR. REV. STAT. ANN. §336.109 (West, Westlaw through 2009 Regular Session Enrolled Acts approved aneffective through August 23, 2009). “(2) As used in this section, “gang” means a group that identifies itself through the use of a name, unique appearance or language, including hand signs, the claiming of geographical

d

sults in criminal activity.” §336.109.

ted in Gang Beating at Park, THE OREGONIAN, October 30, 2009 at Local

gang

rcement team.” Id. “…eight to 10

g War: ‘We Have a Crisis’, THE SUNDAY OREGONIAN, January 11, 2009 at

d/index.ssf/2009/01/police_civic_leaders_sound_ala.html (discussing the

territory or the espousing of a distinctive belief system that frequently re237 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18.. 238 Stephen Beaven, 4 Teens ArresNews available at : Lexis Nexis http://www.oregonlive.com/news/index.ssf/2009/10/police_arrest_four_after_south.html . “The Nortenosoriginated in North California and the Tortilla Flats began in Southern California, making the two sworn enemies, said Officer Russ Corno, a member of Portland police gang enfoNortenos attacked three teens affiliated with the Tortilla Flats gang.” Id. 239 Maxine Bernstein, Portland Gana01 available at: LexisNexis and http://www.oregonlive.com/portlanrise in gang violence in Portland.)

46

mentioned above, the three victims who w s of the Tortilla Flats gang were 13, 14,

ot

a

here to

o DCI.”244 Additionally, the

ere affiliate

and 15 years old.240

Following Oregon is Wyoming.

Wyoming

Wyoming fails to provide statutes defining a gang, penalizing gang recruitment, and

codifying either gang participation charges or sentencing enhancements.

Based on the information in the 2009 NGTA, in looking at the question of whether or n

Wyoming has a gang presence or problem, the answer would probably be not as bad as other

states. 12 counties show gang members, but all 12 only indicate between 1-499 gang

members per the 12 counties, with 6 counties reporting 0 gang members241. However, the

citizens of Cheyenne may beg to differ with the idea that the problem is not that bad, for in

recent article in the Wyoming Tribune Eagle, it was reported that there are a total of 18 gangs

in Cheyenne, 186 gang members and an additional 39 associates.242 According to the article,

“The gang culture seen in Cheyenne and elsewhere in the state comes primarily from Los

Angeles, but also from places like northern California and Chicago. ‘They’re coming

hide from those communities they’ve fled,’ Cheyenne Police Chief Bob Fecht said.”243 The

article also indicated that “A loosely allied group of ‘sets,’ Sureno gangs are predominant

affiliation in Cheyenne and across the state, according t

240 Stephen Beaven, supra note 238. 241 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 18. (The statistic in regards to those counties

states, however, it was only worth

eal van Cassel Gangs are for Real, WYOMING TRIBUNE EAGLE, ww.wyomingnews.com/articles/2008/06/10/featured_story/01top_061008.txt (last visited Nov. 29,

Sureno is Spanish for ‘southerner,’ a note to the gangs’ roots in southern California and in opposition to imary rival, the Nortenos, from northern California.” Id.

reporting no gang members could have been mentioned for several other mentioning here.) 242 Michhttp://w2009). 243 Id. 244 Id. “their pr

47

No oted

that “The gangs in Cheyenne are primarily ‘hybrid’ and ‘homegrown’ gangs, emulating West

west region

-

and Texas, in the area of Houston.250 The state of Texas251 and Arizona252

rtenos, the rivals of the Suernos, are also present in Cheyenne.245 The article also n

Coast gang culture they hear about on the Internet”246

Leaving this section of the county, the next section address the area to the south.

Southwest

As represented in a graphic in the 2009 NGTA, the states composing the Sout

of the United States includes Texas, Oklahoma, New Mexico, Arizona, Colorado, and

Utah.247 “Approximately 5,297 gangs with nearly 111,000 members are criminally active in

the Southwest Region, according to 2008 NDTS data and local law enforcement

reporting.”248 “The most significant gangs operating in the region are Bario Azteca, Latin

Kings, Mexikanemi, Tango Blast, and Texas Syndicate.”249 Two states in this region have a

county indicating 10,000 or more gang members, those states being Arizona, in the Phoenix

Glendale area,

245 Id. 246 Id. 247 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21. 248 Id. 249 Id. 250 Id. 251 See TEX. Penal CODE ANN. §71.02 (Vernon, Westlaw through the end of the 2009 Regular and First Called Session of the 81st Legislature) (providing a sentencing enhancement, and despite the offense being “organized criminal activity”, street gangs were still considered in defining a violation of that section. §71.02 (Westlaw).), TEX. Penal CODE ANN. §71.01 (Vernon, Westlaw through the end of the 2009 Regular and First Called Session of the 81st Legislature) (defining “criminal street gang” as it is used in chp. 71 on Organized Crime.), and TEX. Penal CODE ANN. §71.022 (Vernon, Westlaw through the end of the 2009 Regular and First Called Session of the 81st Legislature) (providing the penalty for street gang recruitment). 252See ARIZ REV. STAT. ANN. §13-1202 (Westlaw through the First Regular Session and First through Third Special Sessions of the Forty-Ninth Legislature(2009)) (providing for a narrow gang recruitment statute that penalizes a person who “threatens or intimidates by word or conduct to:…induce or solicit another person to participate in a criminal street gang.” §13-1202 (Westlaw).), ARIZ. REV. STAT. ANN. 13-709.02 (Westlaw through the First Regular Session and First through Third Special Sessions of the Forty-Ninth Legislature(2009)) (providing a sentencing enhancement in section (c)), and ARIZ. REV. STAT. ANN. 13-105 (Westlaw through the First Regular Session and First through Third Special Sessions of the Forty-Ninth Legislature(2009)) (defining “Criminal Street Gang” as used in the Title 13. Criminal Law). Because the state provided for statutory provisions for the three statutes subject to this analysis, any possible gang participation statute under Arizona law was not researched.

48

however, given that fact, fortunately has all the gang provisions for the statutes subject to th

analysis. The remaining states do not, lacking one or more of the provisions, starting with

New Mexico.

New Mexico

The state of New Mexico presently

is

has no gang statutes that define a gang, criminalize

cing

ing

is

ties indicating

between 1-499 gang members, three with 500-2,499, and 1 with 3,500-9,999.258

Hopefully in the near future New Mexico’s legislature will look to bolstering its code

with the gang provisions discussed throughout this article. Colorado is the next state under

analysis, and that state could heed the same suggestion in certain areas.

gang recruitment or participation, or in the alternative to participation, provide a senten

enhancement. The state does have a State Supreme Court Case that has factored gang

activity into the sentencing a person as an adult.253 However, this does not fall within the

categories of the statutes considered.

New Mexico, despite lacking theses statutes, is not without the presence of gangs,

evidenced for instance after an ICE sweep arrested thirty seven in Deming, includ

individuals with ties to gangs such as Sur 13, Eastside Locos and the Bloods.254 Deming,

in Luna County New, Mexico.255 Luna County256 indicates between 1-499 gang members in

a graphic provided in the NGTA257. New Mexico has a total of 16 coun

253 State v. Sosa, 123 N.M. 564, 570, 943 P.2d 1017, 1023 (1997). “Sosa’s previous history, which included evidence of gang activity and use of firearms, coupled with perjury during trial, also supported sentencing as an adult.” Id. 254 Kevin Buey, ICE Sweep Net 37 Arrests in Area, All Gang Related, DEMING HEADLING, Ocutber 16, 2009 at News available at Lexis Nexis. 255 Deming New Mexico, http://www.cityofdeming.org/ (last visited Nov. 29, 2009) (showing that Deming was in Luna County New Mexico). 256 New Mexico County Map with Administrative Cities, http://geology.com/county-map/new-mexico.shtml (last visited Nov. 29, 2009) (showing map used to match the county name with the shape of county in a2009 NGTA graphic on pg 21. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21 ). 257 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21. 258NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21.

49

Colorado

Colorado, under and as used in its Gang Recruitment Act, has provided the definition of a

criminal street gang259 and defined and penalized gang recruitment of minors260, how

the state does not indicate

ever,

a provision covering either gang participation or providing a

do

re

r more

bers265. That is enough to fill up over half of the Madison Square Garden

sentencing enhancement.

As asked throughout this article, the question is given its missing statute, does Colora

have a gang problem? “Colorado is home to 12, 471 confirmed gang members who a

affiliated with 110 street gangs” according to the director of the Colorado Bureau of

Investigation (CBI) as reported in an article appearing in the Rocky Mountain News back in

2007.261 These numbers arguably must have been of some concern to the city of Denver,

who according to the CBI, in an article published in the same year, reported that Denver “is

home to 8,811 confirmed gang members who are affiliated with 78 gangs.”262 According to

a graphic provided by the 2009 NGTA263, Denver County264, Colorado, has 10,000 o

gang mem

Arena.266

259 COLO. REV. STAT. ANN. §18-23-101 (West, Westlaw through the end of the First Regular Session of the 67th General Assembly (2009)). (It is likely that as this section opens “As used in this article, unless the context otherwise requires:” that the gang definition is section specific.§18-23-101 (Westlaw).) 260 COLO. REV. STAT. ANN. §18-23-102 (West, Westlaw through the end of the First Regular Session of the 67th General Assembly (2009)). 261 Chris Barge and Daniel Chacon, Colorado has 110 gangs, 12,741 Members, Says CBI Database, ROCK MOUNTAIN NEWS, January 19, 2007, http://www.policeone.com/gangs/articles/1205056-Colorado-has-110-gangs-12-741-members-says-CBI-database/ (last visited Nov. 29, 2009). 262 Christopher N. Osher, Gang Heirs Drive Reckless Rise to Power Denver Police Say that Sons of Bloods and Crips who came from L.A. are Leading Gangs now with an Unheralded Penchant for Rash Violence. Cops Fear a Crime Wave May be “One Incident Away”, THE DENVER POST, January 21, 2007 at A-01 available at LexisNexis. (discussing gangs and gang crime in the City of Denver). 263 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21. 264Colorado County Map with Administrative Cities, http://geology.com/county-map/colorado.shtml, (last visited on Nov. 29, 2009) (showing map used to identify Denver County on the NGTA Graphic. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21). 265 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21. 266 Guest Relations/FAQ, http://www.thegarden.com/faq/index.html (last visited Nov. 29, 2009). “For basketball events in the Arena, the seating capacity is 19,763….” Id.

50

Following Colorado is Oklahoma.

s,

ose

to provide a penalty for gang participation or in

uced

l

ld to the

schools, and require” him or her, “to report that activity to law

as

er

Oklahoma

The Oklahoma state code, under the Chapter on Contributing to Delinquency of Minor

has provided a definition of a criminal street gang, and has also penalized the act of th

who “knowingly or willfully cause, aid, abet, encourage, solicit, or recruit a minor to

participate, join, or associate with any criminal street gang,…, or any gang member for the

purpose of….”.267 The state however fails

the alternative a sentencing enhancement.

However, with two recent House Bills, it appears that the state legislature has

acknowledged that the legislative response to the gangs is a viable option and has introd

bills that will “allow property known to be affiliated with gang activity to be seized, if

owners cannot prove the property is not connected” to activity by the gang, and another bil

which would “require school employees to report suspected gang activity of a chi

superintendent of

enforcement.”268

Indeed, Oklahoma has the presence of gangs and gang activity, as indicated in Tulsa,

which estimates 5,000 gang affiliates in the city; affiliates being those the article describes

having ties to a gang but are uninitiated.269 This estimate is said to be “about 1,000 few

than the number of gang members or affiliates in the Oklahoma City area, according to

267 OKLA. STAT. ANN. tit. 21, §856 (West, Westlaw through Chapter 460 (End) of the First Regular Session of

22, 2009 at 10A available at: LexisNexis and

rly 5,000 in Tulsa Area Tied to Gangs, TULSA WORLD, November 23, 2008, at

ww.tulsaworld.com/news/article.aspx?articleID=20081123_11_A1_hTheys180366.

the 52nd Legislature (2009). 268 Bills Take Aim at Gang Crime, THE OKLAHOMAN, Januaryhttp://newsok.com/in-brief-oklahoma-bills-take-aim-at-gang-crime/article/3339775?custom_click=pod_headline_crime . 269 David Schulte, Police Say NeaA1 available at: LexisNexis and http://w

51

numbers provided by the Oklahoma City Police Department.”270 As for criminal activity, 17

out of 64 homicides in Tulsa in 2007 “’involved victims and/or suspects that have some type

of gang association,’”

tent

tudent not being a member of any gang but being in the wrong place at the wrong

m

The next state under analysis is Utah.

ainer

iminal penalty for gang participation, or a

12 counties with between 1-499 gang members, 2 with 500-2,499, and the county holding

271 according to the Tulsa Area Gangs Summary 2007. 272 “[F]or the

first 10 months of 2008, police reported 74 gang-related cases involving shooting with in

to kill,…and 23 gang-related cases of assault with a deadly weapon.”273 Then, in other

headlines, in September of 2009, an Oklahoma City University Student was killed in a

shooting that arose out of a gang war between the GBC gang and the gang known as Juarito,

with the s

ti e.274

Utah

The State of Utah provides for the definition of a “Criminal Street Gang”275, and

penalizes gang recruitment276. The state also considers gang activity in its unlawful det

actions.277 However, it does not provide a cr

sentencing enhancements in the alternative.

The questions as to whether or not Utah has gang activity or at least a gang presence can

be answered in the affirmative as based on a graphic provided in the 2009 NGTA, Utah has

270 Id. 271 Id. 272 Id. 273 Id. 274 Nolan Clay, Oklahoma City Police Name Suspect in OCU Student’s Death, NewOk:Powered by the OKLAHOMAN, October 31, 2009, http://newsok.com/oklahoma-city-police-name-suspect-in-ocu-students-death/article/3413527. “Prosecutors say Wahnee…”, the victim, “…was not part of any gang and was just visiting Saavedra, a friend from high school, at the wrong time. Police said Saavdera belong to the GBC gang.” Id. 275 UTAH CODE ANN. 76-9-802 (West, Westlaw through 2009 General Session and 2009 First Special Session). 276 UTAH CODE ANN. 76-9-803 (West, Westlaw through 2009 General Session and 2009 First Special Session). 277 UTAH CODE ANN. 78B-6-810 (West, Westlaw through 2009 General Session and 2009 First Special Session).

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Salt Lake City reflects between 3,500-9,999 gang members.278 According to the James M.

Winder, Salt Lake County’s Sheriff’s Office,

Gangs in Salt Lake County are primarily influenced by two areas of the country: Los Angeles and Chicago. The Salt Lake metropolitan area could be referred to as a "Secondary Gang City" because it has the same affiliations as these influential gang cities, but with local mutations. In fact, the gang culture found in Salt Lake is one of the most diverse in the western United States. Major California affiliations in the area include the Surenos, Nortenos, Crips, and Bloods. Chicago affiliations include both the Folks and the People. Additionally, the Salt Lake metro area has Southeast Asian gangs, Polynesian gangs, racist and non-racist skinheads, motorcycle gangs, Straight Edgers, and extremist groups like Animal Liberation Front.279

The March 2003 Utah Drug Threat Assessment, as it references street gangs, states that street

gangs, along with outlaw motorcycle gangs, and Mexican criminal groups “distribute illicit

drugs at the retail level in Utah.”280 The report also states that “Street gangs are retail

distributors of methamphetamine, heroin, powdered and crack cocaine, marijuana, and

MDMA.”281 The assessment notes that “Surenos 13 and Tongan Crip Regulators are

significant street gangs in Utah.”282

Utah rounds out the discussion of this area of the county, and the final region for analysis

is on the east coast.

East

278 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 21. 279An Overview of Gangs in Salt Lake, http://www.slsheriff.org/lawenforcement/investigations/metrogang/overview.html, (last visited Nov. 29, 2009). 280 Utah Drug Threat Assessment: March 2003 http://www.justice.gov/ndic/pubs3/3619/overview.htm (last visited Nov. 29, 2009). 281 Id. 282 Id.

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The East Region, as broken up by a graphic in the 2009 NGTA, includes New York,

Pennsylvania, New Jersey, Delaware, West Virginia, Maryland, and Virginia.283 “More than

2,900 gangs with approximately 73,650 members are criminally active in the East Region,

according to NDTS 2008 data and interviews with local law enforcement officials.”284

Several different gangs operate in the region and include the Latin Kings, UBN, Crips, Neta

and MS-13.285 In this region, the states of Virginia286, Maryland287, Delaware288, New

Jersey289, and the District of Columbia290 provide the statutory provisions that are the subject

of this analysis. The remaining states lacking one or more of the statutes subject to this

analysis are discussed below, starting with West Virginia.

West Virginia

283 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 16 284 Id. 285 Id. 286 See Va. Code Ann. §18.2-46.1(West, Westlaw through End of 2009 Special Session I), (defining “Criminal Street Gang”), Va. Code Ann. §18.2-46.2(West, Westlaw through End of 2009 Special Session I), (penalizing gang participation), Va. Code Ann. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I), (penalizing gang recruitment). 287 See Md. Code Ann., Criminal Law §9-802 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (penalizing recruitment/solicitation in a gang), Md. Code Ann., Criminal Law §9-801 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (defining “Criminal gang” and related definitions), Md. Code Ann., Criminal Law §9-804 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (penalizing gang participation). 288 See Del. Code Ann. tit. 11§616 (Westlaw through 77 Laws 2009, chs.1 214. Revisions to 2009 Acts made by the Delaware Code Revisions were unavailable at time of publication) (providing a definition of “Criminal Street Gang” as used in that section and providing for gang participation penalty and sentencing enhancements), Del. Code Ann. tit 11§617 (Westlaw through 77 Laws 2009, chs.1 214. Revisions to 2009 Acts made by the Delaware Code Revisions were unavailable at time of publication) (providing a definition of a “criminal youth gang” and penalizing gang recruitment of juveniles among other things). 289See N.J. Stat. Ann. §2C:33-28 (West, Westlaw with laws effective through L.2009, c. 143 and J.R. No. 10) (penalizing gang recruitment) N.J. Stat. Ann. §2C:33-29 (West, Westlaw with laws effective through L.2009, c. 143 and J.R. No. 10) (providing the crime of gang criminality, essentially a gang participation charge. This section also defines “Criminal Street Gang”) §2C:33-29 (Westlaw). There is an issue currently with §2C:33-28 in that the statute currently uses the definition of “criminal street gang” used in §2C:44-3, however that section of the statute has been deleted. N.J. Stat. Ann. §2C:44-3 (West, with laws effective through L.2009, c. 143 and J.R. No. 10). In the proposed legislation, 2C:33-28 will add a definition of a Criminal Street Gang, still cross referencing to 2C-44-3. 2008 NJ S.B. 779 (NS). 290 D.C. Code §22-811 (Westlaw, through October 4, 2009) (penalizing gang recruitment), D.C. Code §22-951(through October 4, 2009) (providing a broader gang recruitment charge and a penalty for that broader charge, penalizing gang participation, and defining “criminal street gang).

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West Virginia currently provides no gang statutes addressing issues of gang participation,

gang recruitment, defining a gang, or in the alternative to a participation offense, a

sentencing enhancement.

At first glance, it would appear that West Virginia’s gang problem is arguably not

substantial, for although, as indicated in a graphic provided in the 2009 NGTA, 19 counties

in West Virginia report between 1-499 gang members, no county in the state reports more

than that.291 However, recent headlines may not correlate with the opinion of a lack of a

substantial problem, as evidenced by a recent article in the Charleston Gazette which stated,

Local gang problems have gotten worse in recent years as an influx of gangster from other cities works to turn Charleston into a hotbed of street-crime-activities. Gangs in Charleston run the gamut from the infamous Latin Kings and the Bloods and Crips, to the Charleston-area ‘304 boys,’ a homegrown gang.292

However, Sgt. Tim Palmer, said that “Gang culture has changed over the years and

caused gang members to see themselves as a single gangster, as opposed to a member of

a gang.”293 In addition to this article, the West Virginia Drug Threat Assessment for

August 2003 stated gangs in West Virginia include Bloods, Pagan’s Motorcycle Club,

West Side Posse294, and “Other OMGs295 in West Virginia, including the Lost Souls,

Brothers of the Wheel, Avengers, Apache, and Gosh Ryders/Riders.296

291 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 16. 292 Kathryn Gregory, Police in City Report More Gang Activity; Special Enforcement Unit on Front Line, CHARLESTON GAZETTE, April 13, 2009 at P1A available at: LexisNexis and http://www.wvgazette.com/News/200904120240. (discussing gangs in Charleston and the Special Enforcement Unit). 293 Id. 294West Virginia Drug Threat Assessment: August 2003-Overview, http://www.justice.gov/ndic/pubs5/5266/overview.htm, (last visited Nov. 29, 2009). “West Side Posse is a local street gang based in Charleston. It is composed primarily of African American males. West Side Posse members transfer and distribute drugs, primarily cocaine, heroin, and marijuana.” Id. 295Motorcycle Gangs, http://www.justice.gov/criminal/gangunit/gangs/motorcycle.html (last visited Nov. 29, 2009). “Outlaw Motorcycle Gangs (OMGs) are organizations whose members use their motorcycle clubs as conduits for criminal enterprise. OMGs are highly structured criminal organizations….”Id. 296 West Virginia Drug Threat Assessment: August 2003, supra note 294.

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While the state legislature has not taken action on the three statute subject to this

discussion, Charles Town is attempting to implement a gang ordinance “based upon similar

legislation that already has been approved in Virginia.”297 Such an effort is hopefully an

indication of the future trend of counties and the state to begin addressing the gang presence

in the state legislatively. Next is Pennsylvania.

Pennsylvania

Pennsylvania currently has no statutory provisions specifically defining a gang,

penalizing gang recruitment or participation, or in the alternative to participation, a

sentencing enhancement. The state does address “Corrupt Organizations”, however the

provisions of this statute mainly target racketeering and its relation to enterprises.298 The

state also provides for the crime of “Corruption of Minors”, but that statute’s language does

not mention gangs and also defines part of the offense broadly as “Whoever…by any act

corrupts or tend to corrupt the morals of any minor.”299 Provisions, like those in Virginia or

Maryland, are more pointed toward gangs300. As such, Pennsylvania, for the purposes of this

article, fails to provide the gang statutes subject to this discussion; however it is possible that

Pennsylvania addresses the issues of criminal street gangs through another statutory scheme.

297 Naomi Smoot, Street Gang Ordinance Under Analysis, THE JOURNAL, Posted November 13, 2009, http://www.journal-news.net/page/content.detail/id/527812.html?nav=5006 . “The ordinance contains language that defines potential gang activity and enable officials to do further investigation, and question the individuals involved in the situation,…” according to Police Chief Barry Subelsky. Id. The Chief stated the city does not have a gang problem and that the ordinance was not drawn up due to a problem, but that, as Subelsky states, “We wore this just in anticipation of needing to use it.”Id. 298 18 PA. Cons. Stat. Ann. §911 (West, Westlaw/Purdon’s through Act 2009-45). 299 18 Pa. Cons. Stat. Ann. §6301 (West, Westlaw/Purdon’s through Act 2009-45). 300 See Va. Code Ann. §18.2-46.1(West, Westlaw through End of 2009 Special Session I), (defining “Criminal Street Gang”), Va. Code Ann. §18.2-46.2(West, Westlaw through End of 2009 Special Session I), (penalizing gang participation), Va. Code Ann. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I), (penalizing gang recruitment). See Md. Code Ann., Criminal Law §9-802 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (penalizing recruitment/solicitation in a gang), Md. Code Ann., Criminal Law §9-801 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (defining “Criminal gang” and related definitions), Md. Code Ann., Criminal Law §9-804 (West, Westlaw through all chapters of the 2009 Regular Session of the General Assembly) (penalizing gang participation).

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Given its statutory status on gangs, or rather lack thereof, Pennsylvania does not lack the

presence of gangs, with two counties, one in the Pittsburgh area, and one in the Philadelphia

area, reporting between 500-2,499 gang members, and over 15 counties reporting between 1-

499 gang members.301 Even in recent headlines, gangs are making news in some capacity,

from 3 members of the Bloods Street gang, two of them high school students, being charged

in the murder of Allen Fernandez, “a man police believe was a fellow gang member”302, to

an article on the murder of a man believed to be a Latin Kings member, the first homicide

Bethlehem in two years

in

303. In regards to the Bethlehem homicide story, “Less than 24 hours

after the stabbing of Ezequiel De Jesus, Bethlehem police officers and fire crews encountered

near-riots at two arsons near the crime scene as gang members sought revenge.”304

Hopefully, given such statistics and recent headlines, Pennsylvania will begin to take

some legislative action to address the gang issues in its state. The same is to be said about

New York, discussed below.

New York

The state of New York does not provide statutory provisions for the acts of gang

participation, recruitment, defining a gang, or in the alternative to gang participation, a

sentencing enhancement. New York may have other statutory provisions to address these

issues, however, because there is no direct statutory provisions alluding these specific gang

statutes under this analysis, New York, as difficult as it is to believe, is deemed to be a state

that does not provide the statutes that are subject to this analysis.

301 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 16. 302 Jenniver Borrasso, Students Charge in Alleged Gang Murder, posted August 20, 2009, http://www.wnep.com/wnep-lacka-west-scranton-students-gang-shooting,0,137340.story. 303 Pamela Lehman, Man Slain in Bethelhem was Latin King, Police Said, THE MORNING CALL, November 14, 2009, http://www.mcall.com/news/all-a1_4homicide.7082020nov14,0,2468405.story. “Bethlehem police say Lopez-Ortiz plunged a knife into the chest of De Jesus, 24, of Allentown during a dispute Nov. 5….” id. “Police don’t believe Lopez-Ortiz belongs to any gang….” Id. 304 Id.

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The question then becomes does New York have a gang presence, or indicate gang

activity in the state? According to the graphic provided in the 2009 NGTA, the County of

New York305 indicates between 500-2,499 gang members, the neighboring Kings306 county

indicates between 3,500-9,999 gang members, and the neighboring counties of the Bronx307

and Queens308 County indicate between 2,500-3,499 gang members309. Outside of these

counties, 6 other counties in New York indicate between 500-2,499 gang members.310

As for criminal activity, in a November 19th 2009 article in the New York Daily News,

five individuals, four reputed members of the Gorilla Stone Blood, a gang “affiliated with the

Bloods and known to terrorize residents and merchants along 169th St. in Morrisania” were

all “held without bail, on attempted murder charges” following a shooting which ended in

their target being struck in the lung and a 15 year old girl being struck in the head with a

bullet.311 The shooting happened on November 16th 2009312 with the shooter being 16-year

old Carvett Gentles, who according to an earlier article, is a fellow gang member of the four

other individuals.313 The 15 year old girl that was shot was a bystander who was hit with a

305 New York County map with Administrative Cities, http://geology.com/county-map/new-york.shtml, (last visited Nov. 29, 2009). (providing map used to match a nameless county in a 2009 NGTA graphic on pg 16 of the NGTA. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 16). 306 Id. 307 Id. 308 Id. 309 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 16. 310 Id. 311 Dorian Block, Joe Jackson, Sarah Armaghan and Rich Schapiro, Morther of Baby-Fraced Shooting Suspect in Stray-bullet Shooting of Vada Vasquez Breaks Down in Court, DAILY NEWS, published November 19, 2009, http://www.nydailynews.com/news/ny_crime/2009/11/19/2009-11-19_mother_of_babyfaced_shooting_suspect_in_straybullet_shooting_of_vada_vasquez_bre.html. 312 Wil Cruz, Sarah Armaghan, Rocco Parascandola and Rich Schapiro, Jail Fight Sparked Shooting of 15-year-old Vada Vasquez, Hit by Stray Bullet, DAILY NEWS, November 18, 2009, http://www.nydailynews.com/news/ny_crime/2009/11/18/2009-11-18_jail_fight_sparked_bronx_shooting.html (This article was published online on November 18th, 2009 at 0400, making the “Monday” in which she was struck presumably the prior Monday, November 16th, 2009. Id. This is why this date was used.) 313 Rocco Parascandola, Will Cruz, Sarah Armaghan and Rich Schapiro, Baby-faced Teen Arrested as Alleged Gunman in Stray-Bullet Shooting of Bronx Girl, Vada Vasquez, DAILY NEWS, published Nov 18th, 2009, http://www.nydailynews.com/news/ny_crime/2009/11/18/2009-11-18_nypd_arrests_3_more_suspects_in_straybullet_shooting_of_bronx_girl_vada_vasquez.html.

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stray bullet.314 The five men “were charged with attempted murder, assault and criminal use

of a gun.”315 The men ranged from ages 16 to 23.316 Although it is unclear where this

incident occurred, the shooter was held without bail in a Bronx Criminal Court317, also

another article stated the 15 year older girl “and a friend were on their way home Monday

from her school, Bronx Latin in Morrisania, when a hooded gunman on a bike began firing at

Tyone Creighton.”318 Morrisania is also located in New York319.

New York, hopefully in the near future will being to implement a statutory scheme to

address the gang issues it faces in the state.

Section V. Area for Further Research

This article was undertaken to determine which states lacked gang statutes and if those

states had gang issues, presence or activity. The purpose was to put citizens, legislators, and

academians in each of those states on notice of the void in their respective codes that needed

to be filled. However, more research in this area can be done. An analysis of the states that

provide the statutes subject of this article could be useful in measuring their differences and

similarities in statutory language. Also, an analysis of the effectiveness of the statutes in

each state could be undertaken in an effort to give state legislators guidance on future

amendments for those states that have these statutes, and a framework for those states that do

314 Id. 315 Id. 316 Id. 317 Dorian Block, supra note 311. 318 Wil Cruz, supra note 312. 319Morriasania, http://maps.google.com/maps?sourceid=navclient&rlz=1T4DKUS_enUS214US214&q=Morrisania&um=1&ie=UTF-8&hq=&hnear=Morrisania,+New+York,+NY&gl=us&ei=J2EMS8PSJoLIlAfv04ihBA&sa=X&oi=geocode_result&ct=title&resnum=1&ved=0CAoQ8gEwAA (last visited Nov. 29, 2009) (showing a map and listing Morrisania as an area in New York, New York. Id.)

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not, based on what is and is not working. The following section discusses several statutes

that should be considered by these legislatures however in the interim.

Section VI. Solution

As has been discussed throughout this article, many states lack gang statutes, and many

states that provided the statutes subject to analysis have limitations in application. The

obvious solution, and hope, is that those states lacking provisions adopt them. However,

there are several state statutes that should be considered by all the states that in the opinion of

this author will effectively address the issues of gang activity. States that do not have

statutes in similar format and provision should be encouraged to adopt these statutes outright,

or amend their current statutory provisions accordingly.

As for gang recruitment, Virginia’s gang recruitment statute320 is very broad when

compared to a gang recruitment statute like that in Louisiana321. In Louisiana, an individual

is only guilty of gang recruitment if there is not only some act of recruitment, but also that

there be the requirement of “the violation of any law,” “as a condition of initiation,

admission, membership, or continued membership.”322 Virginia’s recruitment statute, as

written out earlier, does not have this conditional language.323 In Virginia, as long as the

element of a criminal street gang being in existence as it is defined under the code324 is

proven, and an individual simply looks at a stranger on the street and say “Will you join my

gang?,” that is enough to charge that person with gang recruitment325. That is the activity

that legislatures must be and should addressing across all states, and when conditions and 320 Va. Code Ann. §18.2-46.3 (West, Westlaw through End of 2009 Special Session I), (penalizing gang recruitment). 321 LA. REV. STAT. ANN. §15:1403.1 (Westlaw through the 2009 Regular Session) (providing penalty for gang recruitment). 322 §15:1403.1 (Westlaw). 323 §18.2-46.3(Westlaw). 324 VA. CODE ANN. §18.2-46.1 (West, Westlaw through End of 2009 Special Session I). 325 §18.2-46.3(Westlaw).

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add-ons get in the way of that, state legislatures must begin to look to other states for

revisionary options in drafting a broader statute. Virginia is a perfect rubric to utilize in that

undertaking.

As for defining what a gang is statutorily, states should look to the definitions provided

by the North Dakota State Code and Virginia State Code, take the best parts of those statutes

described below, and develop the remainder of the definition as the state deems fit.

In North Dakota, “Criminal street gang” means

any ongoing organization or group of three or more persons, whether formal or informal, that acts in concert or agrees to act in concert with a purpose that any of those persons alone or in any combination commit or will commit two or more predicate gang crimes one of which occurs after August 1, 1995, and the last of which occurred within five years after the commission of a prior predicate gang crime.326

As for “predicate gang crime”, that is defined as “the commission, attempted commission, or

solicitation of any felony, misdemeanor crime of violence, or misdemeanor crime of

pecuniary gain.”327 These two provisions, taken together create a much broader definition of

criminal street gang when compared to a state such as Virginia328 and is the portion of this

statute that other states should look to adopt. Virginia’s definition of a criminal street gang,

defined earlier in this article, has a key differences that make North Dakota’s statute superior.

First, Virginia has a long yet narrower list of “predicate criminal acts” that list specific code

sections that will qualify as a “predicate criminal act”.329 When taking that list, compared to

North Dakota’s “predicate gang crimes” being any felony, and any misdemeanor involving

326 N.D. CENT. CODE §12.1-06.2-01 (Westlaw, through the 2009 Regular Session) (defining “Criminal Street Gang” as used in the “Criminal Street Gangs” Chapter and other related definitions.) 327 §12.1-06.2-01 (Westlaw) 328 §18.2-46.1 (Westlaw). 329 VA. CODE ANN. §18.2-46.1 (West, Westlaw through End of 2009 Special Session I).

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violence or pecuniary gain330, it is clear that North Dakota’s definition should target a

broader spectrum of criminality.

Other elements of Virginia’s definition however should be utilized. First, two elements

that must be proven in Virginia are that the organization “has as one of its primary objectives

or activities the commission of one or more criminal activities” and that members of that

gang, either as individuals or as a group, “engaged in the commission of…two or more

predicate criminal acts, at least one of which is an act of violence, provided such acts were

not part of a common act or transaction.”331 While I would remove the requirement that one

of the predicate acts must be a crime of violence, these two elements together cover a broader

scope and give a clearer indication to prosecutors what must be proven as compared to that of

North Dakota’s element which requires that the organization “acts in concert or agrees to act

in concert with a purpose that any of those persons alone or in any combination commit or

will commit two or more predicate gang crimes.”332 As such, these provisions discussed

above should be looked to by other states to include in their provisions. The second element

to take from Virginia’s definition of a criminal gang is that there are no time constraints of

proving the two underlying predicate offenses333 as say in North Dakota which in regards to

the “two or more predicate gang crimes” mentioned above, one must occur “after August 1,

1995, and the last of which” must occur “within five years after the commission of a prior

predicate gang crime.”334

330 §12.1-06.2-01 (Westlaw) 331 §18.2-46.1(Westlaw). 332 N.D. CENT. CODE §12.1-06.2-01 (Westlaw, through the 2009 Regular Session) (defining “Criminal Street Gang” as used in the “Criminal Street Gangs” Chapter and other related definitions.) 333 §18.2-46.1(Westlaw). 334 §12.1-06.2-01 (Westlaw)

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As for the remaining elements in defining this term, the states should have the freedom to

adjust their statutes as they deem fit but should look to other states, like Virginia, to

determine other gaps that must be filled and also include the provisions discussed above,

which should make a stronger statute, regardless on which form a statutes gang definition

takes.

Lastly, in regards to sentencing enhancements and gang participation statutes, one is not

per se better than the other in form, however, individually, depending on whether a state

utilizes an enhancement statute or a gang participation statute, there are some state statutory

provisions and elements that could be used as examples for other states and make a states

statute if it already has one stronger.

As for gang participation, Virginia’s gang participation statute is a good rubric for states

lacking such a statute, as it is straight forward and encompasses not only those gang

“members” “who knowingly and willfully participates in any predicate criminal act

committed for the benefit of, at the direction of, or in association with any criminal street

gang” but also “Any person who actively participate in…a criminal street gang.”335 This

means that Virginia’s participation statute does not require membership as an element of the

offense. Having this broader provision can help make the statute more effective in

addressing gang activity and addresses tactics that may be used by gangs to sidestep the

statute by never having permanent members. Such a provision should be adopted by the

states that already provide a similar provisions, or even a sentencing enhancement.

Also, for participation or enhancement penalties, the state should ensure not to limit

itself to a predicate acts list, like in Virginia336, or like in Montana’s Code, whose gang

335 VA. CODE ANN. §18.2-46.2 (West, Westlaw through End of 2009 Special Session I). 336 §18.2-46.2 (Westlaw).

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participation penalty is only triggered by felony offenses.337 This was discussed previously

in relation to predicate acts and defining criminal gangs above, and if a state instead makes

its predicate acts broader like in North Dakota338, it should have a stronger participation or

enhancement statute because of it.

As for sentencing enhancements, a state’s provisions should reflect the provisions

mentioned above in reference to both sentencing enhancements and gang participation

charges. As for an example of an ideal sentencing enhancement provision, South Dakota’s

statute is simple, stating in full, “The penalty for conviction of any offense shall reclassified

to the next highest classification in the penalty schedule if the commission of such offense is

part of pattern of street gang activity.”339 A “pattern of street gang activity” in short, in

South Dakota, involves “the commission…by any member or members of a street gang of

two or more felony or violent misdemeanor offenses on separate occasions within a three-

year period for the purpose of furthering gang activity.”340 The great aspect of South

Dakota’s sentencing enhancement statute, from a prosecutors; perspective, is it states “any

offense”341, and is not limited to predicate acts like in Virginia’s gang participation statute342.

Conclusion

This article surveyed state gang statutes and examined whether state legislatures had

provided statutes addressing gang activity in an effort to determine if those states lacking

gang statutes faced a gang presence such that the legislatures needed to take action.

337 MONT. CODE ANN. §45-8-404 (Westlaw through all 2007 legislation) (providing gang participation statute). 338 N.D. CENT. CODE §12.1-06.2-01 (Westlaw, through the 2009 Regular Session) (defining “Criminal Street Gang” as used in the “Criminal Street Gangs” Chapter and other related definitions). 339 S.D. CODIFIED LAWS §22-10A-2 (West, Westlaw through the 2009 Regular Session and Supreme Court Rule 09-09). 340 S.D. CODIFIED LAWS §22-10A-1 (West, Westlaw through the 2009 Regular Session and Supreme Court Rule 09-09). 341 §22-10A-2 (Westlaw). 342 VA. CODE ANN. §18.2-46.2 (West, Westlaw through End of 2009 Special Session I).

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In every state lacking one or more the gang statutes subject to this article, there was a

presence of gangs and, in most instances, gang activity in the state. There were very few

states, mainly those of Kentucky and West Virginia, in which the idea of not having a drastic,

immediate need for the implementation of the gang statutes discussed in the analysis was

considered, but the evidence of a gang presence was still in those states. For the remaining

states lacking the provisions, such considerations were not given and the need to fully flex

the legislature’s power in those states is dire and should be exercised as soon as possible.

Overall, nine states, Hawaii, Maine, Vermont, Rhode Island, Wyoming, New Mexico,

West Virginia, Pennsylvania, and New York failed to provided any of the gang statutes

subject to analysis. Eight states, Mississippi, Tennessee, North Carolina, South Dakota,

Missouri, Ohio, Minnesota, and Michigan lacked only gang recruitment provisions. Seven

states, Alabama, South Carolina, Illinois, Kentucky, Colorado, Oklahoma, and Utah lacked

only provisions providing a sentencing enhancement or penalizing gang participation. One

state, Massachusetts, lacked only a provisions clearly defining a gang and provisions

addressing gang participation or in the alternative a sentencing enhancement. Five states,

Connecticut, Wisconsin, Nebraska, Washington, and Oregon, lacked both gang recruitment

provisions and those provisions addressing gang participation or sentencing enhancements.

Twenty states, Arkansas, Louisiana, Georgia, Florida, California, Nevada, New Hampshire,

North Dakota, Kansas, Iowa, Indiana, Idaho, Montana, Alaska, Texas, Arizona, Virginia,

Maryland, Delaware, New Jersey, and the District of Colombia provided statutory provisions

for all three of the categories that were the subject of this analysis.

The numbers provided above, hopefully, will change in the near future, as legislators and

law enforcement personnel become more aware of the gang presence and problems in their

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respective states and how other states have addressed the issue. These numbers need to

change. These numbers must change.