PLEASE SEE ATTACHMENTS
Assignment: Criminal Organization Legislation
Combating gangs and organized crime groups is a daunting task for a variety of reasons, one of which is the lack of cooperation from witnesses in criminal investigations. Witnesses are often hesitant to testify against gang members and organized crime figures because they fear that they or their family will be harmed. With little help from witnesses, the criminal justice system tends to rely heavily on legislation created through local, state, and federal bodies. For example, legislation such as the Racketeer Influenced and Corrupt Organizations (RICO) statute and even the U.S. Patriot Act is designed to target existing gangs and organized crime groups, levying hefty sentences on those convicted. Other legislation is designed to deter crimes committed by gangs and organized crime groups by targeting core issues that contribute to the development and proliferation of these groups.
For this Assignment, assume you have been asked to moderate an upcoming political debate between two candidates concerning crime. One area of concern, and a topic that will be addressed in the debate, is the sufficiency of current legislation to address gang and organized crime violence.
PLEASE FOLLOW ALL DIRECTION TO PUT THIS PAPER TOGETHER I HAVE ATTACHED READING MATERIAL FOR YOU TO USE. AND MAKE SURE YOU REFERENCE YOUR WORK. ALSO, THERE IS READING AT THE TOP OF THIS PAPGE AS WELL TO READ OVER. THIS IS A 500 TO 750 WORD COUNT WHICHEVER YOU CHOOSE. AND MAKE YOUR OWN SELECTION OF GANG MEMBER OR ORGANIZED CRIME AS YOUR TOPIC THANKS….
To prepare:
Select one gang or organized crime statute at the federal, state, or local level and research it.
Submit a 500- to 750-word paper that addresses the following:
Write an introductory statement that reviews the statute and summarizes its intent.
Prepare three questions toward the supporting side of the statute and three questions toward the opposing side of the statute.
Respond to one question from the supporting side of the statute and one question from the opposing side of the statute.
Based on your responses, what conclusions can you draw about the efficacy of legislation related to combating criminal organizations?
O R I G I N A L P A P E R
Deterring Gang-Involved Gun Violence: Measurin
g
the Impact of Boston’s Operation Ceasefire on Street
Gang Behavior
Anthony A. Braga • David M. Hureau • Andrew V. Papachristo
s
Published online: 20 March 2013
� Springer Science+Business Media New York 2013
Abstract
Objectives The relatively weak quasi-experimental evaluation design of the original
Boston Operation Ceasefire left some uncertainty about the size of the program’s effect on
Boston gang violence in the 1990s and did not provide any direct evidence that Boston
gangs subjected to the Ceasefire intervention actually changed their offending behaviors.
Given the policy influence of the Boston Ceasefire experience, a closer examination of the
intervention’s direct effects on street gang violence is needed.
Methods A more rigorous quasi-experimental evaluation of a reconstituted Boston
Ceasefire program used propensity score matching techniques to develop matched treat-
ment gangs and comparison gangs. Growth-curve regression models were then used to
estimate the impact of Ceasefire on gun violence trends for the treatment gangs relative to
comparisons gangs.
Results This quasi-experimental evaluation revealed that total shootings involving
Boston gangs subjected to the Operation Ceasefire treatment were reduced by a statisti-
cally-significant 31 % when compared to total shootings involving matched comparison
Boston gangs. Supplementary analyses found that the timing of gun violence reductions for
treatment gangs followed the application of the
Ceasefire treatment.
Conclusions This evaluation provides some much needed evidence on street gang
behavioral change that was lacking in the original Ceasefire evaluation. A growing body of
scientific evidence suggests that jurisdictions should adopt focused deterrence strategies to
control street gang violence problems.
Keywords Gang violence � Guns � Deterrence � Problem-oriented policing
A. A. Braga
Rutgers University, Newark, NJ, USA
A. A. Braga (&) � D. M. Hureau � A. V. Papachristos
John F. Kennedy School of Government, Harvard University, 79 John F. Kennedy Street,
Cambridge, MA 02138, USA
e-mail: Anthony_Braga@harvard.edu
A. V. Papachristos
Yale University, New Haven, CT, USA
123
J Quant Criminol (2014) 30:113–139
DOI 10.1007/s10940-013-9198-x
Introduction
Boston received national acclaim for its innovative approach to preventing youth violence
in the 1990s (see, e.g. Butterfield 1996; Witkin 1997). The well-known Operation
Ceasefire
initiative was an interagency violence prevention program that focused enforcement and
social service resources on a small number of gang-involved offenders at the heart of the
city’s youth violence problem (Kennedy et al. 1996). The Ceasefire ‘‘pulling levers’’
focused deterrence strategy was associated with a near two-thirds drop in youth homicide
in the late 1990s (Braga et al. 2001; Piehl et al. 2003) and was soon embraced by the U.S.
Department of Justice as an effective approach to crime prevention. In his address to the
American Society of Criminology, former National Institute of Justice Director Jeremy
Travis (1998) announced ‘‘[the] pulling levers hypothesis has made enormous theoretical
and practical contributions to our thinking about deterrence and the role of the criminal
justice system in producing safety.’’ Subsequently, the basic elements of the Boston
Ceasefire framework has been applied in many American cities through federally spon-
sored violence prevention programs such as the Strategic Alternatives to Community
Safety Initiative and Project Safe Neighborhoods (Dalton 2002).
The evaluation of Boston’s Operation Ceasefire, however, has been greeted with both a
healthy dose of skepticism (Fagan 2002; Rosenfeld et al. 2005) and some support (Cook
and Ludwig 2006; Morgan and Winship 2007). The relatively weak quasi-experimental
evaluation design of the original implementation leaves some uncertainty about the size of
Ceasefire’s effect on gang violence in Boston and does not provide any direct evidence that
Boston gangs subjected to the Ceasefire intervention actually changed their offending
behaviors (Ludwig 2005; Wellford et al. 2005). Given the influence of the Operation
Ceasefire experience on policing and violence prevention policy, a more rigorous exam-
ination of the intervention’s effects on street gang behavior in Boston is sorely needed.
In this paper, we take advantage of unique data on gangs and gang-involved gun
violence in Boston in a quasi-experimental evaluation of the group-level violence pre-
vention effects of a reconstituted Operation Ceasefire strategy implemented in 2007. As
compared to previous evaluations of Operation Ceasefire that focused solely on aggregate
rates of violence, our quasi-experimental evaluation focuses squarely on the gangs that
were targeted for treatment. Propensity score matching techniques were used to develop
matched Ceasefire treatment gangs and comparison gangs. Growth-curve regression
models were then used to estimate the impact of Ceasefire on gun violence trends for the
treatment gangs relative to comparisons gangs. We find that the Ceasefire intervention was
associated with statistically significant reductions in gun violence trends for treatment
gangs relative to gun violence trends for the comparison gangs. A supplementary analysis
examined the specific timing of the Ceasefire intervention as applied to each matched
treatment gang and found that sharp reductions in gun violence immediately followed the
intervention.
Literature Review
The Boston Gun Project and Operation Ceasefire
The Boston Gun Project was a problem-oriented policing enterprise expressly aimed at
taking on a serious, large-scale crime problem—homicide victimization among young
people in Boston. Like many large cities in the United States, Boston experienced a large
114 J Quant Criminol (2014) 30:113–139
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sudden increase in youth homicide between the late 1980s and early 1990s. The Project
began in early 1995 and implemented what is now known as the ‘‘Operation Ceasefire’’
intervention, which started in the late spring of 1996 (Kennedy et al. 1996). Led by the
Boston Police Department (BPD), a working group of law enforcement personnel, youth
workers, and Harvard University researchers diagnosed the youth violence problem in
Boston as one of patterned, largely vendetta-like (‘‘beef’’) hostility amongst a small
population of chronic offenders, and particularly among those involved in loose, informal,
mostly neighborhood-based gangs. These gangs represented less than 1 % of the city’s
youth between the ages of 14 and 24, but were responsible for more than 60 % of youth
homicide in Boston.
The focused deterrence strategy behind Operation Ceasefire was designed to prevent
violence by reaching out directly to gangs, saying explicitly that violence would no longer
be tolerated, and backing up that message by ‘‘pulling every lever’’ legally available when
violence occurred (Kennedy 1997, 2011). The chronic involvement of gang members in a
wide variety of offenses made them—and their groups—vulnerable to a coordinated
criminal justice response. The authorities could disrupt street drug activity, focus police
attention on low-level street crimes such as trespassing and public drinking, serve out-
standing warrants, cultivate confidential informants for medium- and long-term investi-
gations of gang activities, deliver strict probation and parole enforcement, seize drug
proceeds and other assets, ensure stiffer plea bargains and sterner prosecutorial attention,
request stronger bail terms (and enforce them), and bring potentially severe federal
investigative and prosecutorial attention to gang-related drug and gun activity. Rather than
simply dealing with individual offending, groups were held accountable for outbreaks of
serious gun violence.
Simultaneously, youth workers, probation and parole officers, and later churches and
other community groups offered gang members services and other kinds of help. These
partners also delivered an explicit message that violence was unacceptable to the com-
munity and that ‘‘street’’ justifications for violence were mistaken. The Ceasefire Working
Group delivered this message in formal meetings with gang members (known as ‘‘forums’’
or ‘‘call-ins’’), through individual police and probation contacts with gang members,
through meetings with inmates at secure juvenile facilities in the city, and through gang
outreach workers. The deterrence message was not a deal with gang members to stop
violence. Rather, it was a promise to gang members that violent behavior would evoke an
immediate and intense response. If gangs committed other crimes but refrained from
violence, the normal workings of police, prosecutors, and the rest of the criminal justice
system dealt with these matters. But if gang members persisted in their violent behaviors,
the Working Group concentrated its enforcement actions on their gangs.
The idea of the Ceasefire ‘‘crackdowns’’ specifically but the focused deterrence model
more generally was not to eliminate gangs or stop every aspect of gang activity, but rather
to control and deter serious violence among specified groups (Kennedy 1997). To do this,
the Working Group explained its actions against targeted gangs to other gangs, as in ‘‘this
gang did violence, we responded with the following actions, and here is how to prevent
anything similar from happening to you.’’ The ongoing Working Group process regularly
watched the city for outbreaks of gang violence and framed any necessary responses in
accord with the Ceasefire strategy. As the strategy unfolded, the Working Group continued
communication with gangs and gang members to convey its determination to stop violence,
to explain its actions to the target population, and to maximize both voluntary compliance
and the strategy’s deterrent power.
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Operation Ceasefire Deterrence Mechanisms
Deterrence theory posits that crimes can be prevented when the costs of committing the
crime are perceived by the offender to outweigh the benefits (Gibbs 1975; Zimring and
Hawkins 1973). Most discussions of the deterrence mechanism distinguish between
‘‘general’’ and ‘‘special’’ deterrence (Cook 1980). General deterrence is the idea that the
general population is dissuaded from committing crime when it sees that punishment
necessarily follows the commission of a crime. Special deterrence involves punishment
administered to criminals with the intent to discourage them from committing crimes in the
future. Much of the literature evaluating deterrence focuses on the effect of changing
certainty, swiftness, and severity of punishment associated with certain acts on the prev-
alence of those crimes (see, e.g. Apel and Nagin 2011; Blumstein et al. 1978; Cook 1980;
Nagin 1998; Paternoster 1987).
In addition to any increases in certainty, severity, and swiftness of sanctions associated
with gun violence, the Operation Ceasefire strategy sought to gain deterrence through the
advertising of the law enforcement strategy, and the personalized nature of its application.
The effective operation of general deterrence is dependent on the communication of
punishment threats to the public. As Zimring and Hawkins (1973) observe, ‘‘the deterrence
threat may best be viewed as a form of advertising’’ (p. 142). A key element of the strategy
was the delivery of a direct and explicit ‘‘retail deterrence’’ message to a relatively small
target audience regarding what kind of behavior would provoke a special response and
what that response would be.
1
The available research suggests that deterrent effects are ultimately determined by
offender perceptions of sanction risk and certainty (Nagin 1998). As described above,
Operation Ceasefire was targeted on very specific behaviors by a relatively small number
of chronic offenders who were highly vulnerable to criminal justice sanctions. The
approach directly confronted violent gang members and informed them that continued
offending will not be tolerated and how the system will respond to violations of these new
behavior standards. Face-to-face meetings with offenders are an important first step in
altering their perceptions about sanction risk (Horney and Marshall 1992; Nagin 1998). As
McGarrell et al. (2006) suggest, direct communications and affirmative follow-up
responses are the types of new information that may cause offenders to reassess the risks of
committing crimes.
In their recent essay on the limits of lengthy prison stays to deter crime, Durlauf and
Nagin (2011, p. 40) suggest that ‘‘strategies that result in large and visible shifts in
apprehension risk are most likely to have deterrent effects that are large enough not only to
reduce crime but also apprehensions.’’ Focused deterrence strategies, such as Boston’s
Operation Ceasefire, are identified by Durlauf and Nagin (2011) as having this charac-
teristic. Moreover, they suggest that these ‘‘carrot and stick approaches’’ to crime pre-
vention creatively use positive incentives, such as social services and job opportunities, to
reward compliance and facilitate nonviolent behavior. Durlauf and Nagin (2011) conclude
their discussion of the promise of focused deterrence strategies with a call for additional
research and evaluation on the crime reduction benefits of these new approaches.
1
Wright et al. (2004, p. 184) offer a clever metaphor of this perspective: ‘‘A restaurant owner can sell more
prime rib by lowering its price, but not to vegetarian patrons. The price of prime rib here represents the
situational inducement toward ordering meat, but vegetarianism represents a predisposition away from it,
and thus the effect of meat pricing significantly varies by level of meat eating.’’
116 J Quant Criminol (2014) 30:113–139
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Evaluation Evidence
A large reduction in the yearly number of Boston youth homicides followed immediately
after Operation Ceasefire was implemented in mid-1996. A U.S. Department of Justice
(DOJ)-sponsored evaluation of Operation Ceasefire revealed that the intervention was
associated with a 63 % decrease in the monthly number of Boston youth homicides, a
32 % decrease in the monthly number of shots-fired calls, a 25 % decrease in the monthly
number of gun assaults, and, in one high-risk police district given special attention in the
evaluation, a 44 % decrease in the monthly number of youth gun assault incidents (Braga
et al. 2001). The evaluation also suggested that Boston’s significant youth homicide
reduction associated with Operation Ceasefire was distinct when compared to youth
homicide trends in most major U.S. and New England cities (Braga et al. 2001). In a
companion paper to the main impact evaluation, Piehl et al. (2003) developed an econo-
metric model that evaluated all possible monthly break points in the time series to identify
the maximal monthly break point associated with a significant structural change in the
trajectory of the time series. Controlling for trends and seasonal variations, the timing of
the ‘‘optimal break’’ in the monthly counts of youth homicides time series was in the
summer months after Ceasefire was implemented in 1996.
Given the high profile of the Boston experience, the Ceasefire evaluation has been
reviewed by a number of researchers and the relationship between the implementation of
Ceasefire and the trajectory of youth homicide in Boston during the 1990s has been closely
scrutinized. Fagan (2002) suggested that some of the decrease in homicide may have
occurred without the Ceasefire intervention in place as violence was decreasing in most
major U.S. cities. In support of this perspective, Fagan (2002) presented a simple time-
series graph on youth gun homicide in Boston and in other Massachusetts cities that
suggested a general downward trend in gun violence may have existed before Ceasefire
was implemented. Using growth-curve analysis to examine predicted homicide trend data
for the 95 largest U.S. cities during the 1990s, Rosenfeld et al. (2005) found some evidence
of a sharper youth homicide drop in Boston than elsewhere but suggest that the small
number of youth homicide incidents precludes strong conclusions about program effec-
tiveness based on their statistical models. However, in his review of their analysis, Berk
(2005) raised a number of statistical and methodological concerns with the analysis
developed by Rosenfeld and his colleagues.
Other reviewers, however, have been more supportive of a program effect in their
reviews of the Ceasefire impact evaluation (see Cook and Ludwig 2006). Ludwig (2005)
suggested that Ceasefire was associated with a large drop in youth homicide but, given the
complexities of analyzing city-level homicide trend data, there remained some uncertainty
about the extent of Ceasefire’s effect on youth violence in Boston. Morgan and Winship’s
(2007) review of the Ceasefire evaluation concluded that the analysis was a ‘‘very high-
quality example’’ of how to conduct an interrupted time series analysis of program impact
and further noted ‘‘they offer four types of supplemental analysis … which can be used to
strengthen the warrant for causal assertion’’ (p. 252).
The National Academies’ Panel on Improving Information and Data on Firearms
(Wellford et al. 2005) concluded that the Ceasefire evaluation was compelling in associ-
ating the intervention with the subsequent decline in youth homicide. However, the Panel
also suggested that many complex factors affect youth homicide trends and it was difficult
to specify the exact relationship between the Ceasefire intervention and subsequent
changes in youth offending behaviors. The Panel further observed that the Ceasefire
evaluation examined aggregate citywide data and did not provide any empirical evidence
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that treated gangs modified their violent behaviors after being exposed to the intervention.
In a recent article in The New Yorker (Seabrook 2009, p. 37), well-respected deterrence
scholar Professor Franklin Zimring echoed the concerns raised by the Panel by stating:
Ceasefire is more of a theory of treatment rather than a proven strategy … It’s odd
that no one has ever said, O.K., here are the youths who were not part of the
Ceasefire program in Boston, let’s compare them to the youths who were. And no
one has ever followed up any long range studies of the criminal behavior of the group
that was in the program, either. We just don’t have the evidence, and until we do we
can’t evaluate how effective Ceasefire really is.
The Current Study
While the existing evidence is strong enough to suggest an association between the
implementation of Ceasefire and the subsequent drop in Boston youth homicides, we agree
with the concerns raised by the National Academies’ Panel and Professor Zimring that it is
difficult to determine whether Ceasefire actually changed violent gang behaviors in Boston
based on the analysis of aggregate citywide trend data during the 1990s—a period known
for sudden and surprising decreases in violent crime in the United States (see, e.g. Cook
and Laub 2002). A more rigorous test of Ceasefire would compare pre-test and post-test
trends in gun violence outcomes by treated Boston gangs to pre-test and post-test trends in
gun violence outcomes for an equivalent group of untreated Boston gangs. In this study, we
take advantage of new data on gangs and gang-involved gun violence in Boston to conduct
a stronger quasi-experimental evaluation of a reinvigorated version of Operation Ceasefire
implemented during the late 2000s.
Despite the national acclaim, the BPD discontinued the Ceasefire strategy as its primary
response to outbreaks of gang violence in January 2000 (see Braga and Winship 2006).
Yearly counts of gang homicides, unfortunately, increased linearly after Ceasefire was
halted in Boston (Braga et al. 2008a). In 1999, the last full year of Ceasefire intervention,
there were only 5 gang-motivated homicides in Boston. By 2006, this number had
increased more than seven-fold to 37 gang-motivated homicides in Boston. During this
time period, the BPD experimented with alternative approaches to violence prevention by
adapting certain Ceasefire tactics to a broader range of problems such as investigating
unsolved shootings, facilitating the re-entry of incarcerated violent offenders back into
high-risk Boston neighborhoods, and addressing criminogenic families in hot spot areas
(Braga and Winship 2006). Unfortunately, the slate of new approaches seemed to diffuse
the ability of the City of Boston to deal with gang violence as no one group was focused
exclusively on addressing ongoing conflicts among street gangs (Braga et al. 2008a).
At the beginning of December 2006, Edward F. Davis III, former Chief of the Lowell,
Massachusetts, Police Department, was sworn in by Mayor Thomas M. Menino as the new
Commissioner of the BPD and was immediately charged with reducing gun violence in the
city. Drawing on his past experience with a pulling levers strategy to control gang violence
in Lowell (Braga et al. 2008b), Davis announced that Operation Ceasefire would once
again be the BPD’s main response to outbreaks of serious gang violence. He promoted
Gary French, who led many of the BPD’s Ceasefire efforts during the 1990s, to Deputy
Superintendent with oversight of the Youth Violence Strike Force (YVSF, known infor-
mally as the ‘‘gang unit’’), school police unit, and the tactical bicycle unit. With the support
of Davis and his command staff, French reinstated the Ceasefire approach as a citywide,
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interagency effort to disrupt ongoing cycles of gang violence. Between January 2007 and
December 2010, 19 Boston gangs were subjected to the Ceasefire pulling levers focused
deterrence strategy.
Analytical Approach
We used a non-randomized quasi-experimental design to compare serious gun violence
trends for Boston gangs subjected to the Ceasefire intervention to serious gun violence
trends for a matched comparison group of Boston gangs that did not receive the Ceasefire
intervention (Shadish et al. 2002; Rossi et al. 2006). This section describes the develop-
ment of the data and units of analysis in our quasi-experiment, the identification of
comparison gangs, and the specification of appropriate statistical models to estimate the
effect of the Ceasefire intervention on serious gun violence trends for treated gangs relative
to serious gun violence trends for comparison gangs.
Data and Units of Analysis
In this study, we measured serious gun violence by using computerized records of BPD
official reports of Homicide by Firearm and Assault and Battery by Means of a Deadly
Weapon—Firearm (ABDW—Firearm) incidents between January 1, 2006 and December
31, 2010. Incident reports are generated in the BPD by detectives or police officers after an
initial response to a request for police service. In the State of Massachusetts, ABDW—
Firearm incidents essentially represent shooting events where guns were fired and victims
were physically wounded by the fired bullets.
2
The availability of non-fatal incident data
has the significant advantage of allowing us to include a wider range of gang-involved gun
violence. More importantly, the difference between a gun homicide and a non-fatal
shooting event, as one police officer related to us, ‘‘is often only a matter of inches and
luck—a lot of times a non-fatal shooting is just a failed homicide.’’ The officer’s sentiment
suggests that whether or not an event becomes lethal is contingent on several uncontrol-
lable factors—the aim of the shooter, the distance to the target, a rapid call to the police,
the response time of medical assistance, and so on. In fact, Zimring’s (1968, 1972) studies
of wounds inflicted in gun and knife assaults demonstrate considerable overlap between
fatal and non-fatal attacks and suggest that the difference between life and death is just a
matter of chance. In the text that follows, we use ‘‘shooting’’ as a term of convenience to
represent both fatal and non-fatal shooting incidents.
It is well known that police incident data, such as the Federal Bureau of Investigation’s
Uniform Crime Reports, have shortcomings. For instance, crime incident data are biased
by the absence of crimes not reported by citizens to the police and by police decisions not
to record all crimes reported by citizens (see Black 1970). Although incident reports have
flaws, careful analyses of these data can yield useful insights on crime (Schneider and
Wiersema 1990). Moreover, official police incident data are widely used for assessing
trends and patterns of gun crime (Blumstein 1995; Cook and Laub 2002) and the evalu-
ation of gun violence reduction programs (see, e.g. Sherman and Rogan 1995; McGarrell
et al. 2001; Cohen and Ludwig 2003).
2
See Massachusetts General Laws, Chapter 265, Section 15A.
J Quant Criminol (2014) 30:113–139 119
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To determine whether a shooting event involved a gang member as a suspect, victim, or
both, the ‘‘crime incident review’’ process was used (see Klofas and Hipple 2006).
Between 2006 and 2010, the BPD’s Boston Regional Intelligence Center (BRIC) convened
separate quarterly shooting review meetings for the four policing districts (B-2, B-3, C-11,
and D-4) that experience the bulk of gun violence in Boston and one quarterly shooting
review meeting for the remaining policing districts. For each district meeting, detectives
and officers with detailed knowledge on gangs and gang violence problems were required
to attend; this included district detectives, plainclothes Anti-Crime district officers, Drug
Control Unit detectives and officers, Homicide Unit detectives, Special Investigations Unit
detectives, and YVSF detectives and officers. In each quarterly shooting review meeting,
BRIC detectives and civilian analysts presented the objective characteristics of each
shooting event (date, location, victim information, and, if arrested, offender information)
and the available gang intelligence on the event based on their computerized data systems.
The meeting participants shared their working knowledge on circumstances of the shooting
event, the relationships between victims and suspects, and, if the event involved gang
members, details on the gangs involved in the shooting.
Researchers attended the quarterly shooting review meetings and partnered with the
BRIC in collecting, coding, entering, and analyzing the qualitative insights on the nature of
each shooting event. Figure 1 presents the yearly counts of gang-involved shootings in
Boston between 2006 and 2010. Gang-involved shootings were relatively stable between
2006 (N = 263) and 2007 (N = 253), decreased over the course of 2008 (N = 232) and
2009 (N = 172), and, despite a small increase over the previous year, remained relatively
low in 2010 (N = 183). Between 2006 and 2010, gang-involved shootings in Boston
decreased by 30.4 %.
The units of analysis in this evaluation are quarterly counts of shootings by and against
specific Boston gangs between 2006 and 2010. Since shootings by and against any par-
ticular gang were relatively rare events, we aggregated specific shootings into quarterly
counts to provide more stable estimates of any measurable impacts of Ceasefire on gang
shooting behaviors. There were N = 123 gangs in Boston involved in at least one shooting
between 2006 and 2010. We analyzed three quarterly outcomes for each gang included in
the evaluation: victim gang-involved shootings, suspect gang-involved shootings, and total
gang-involved shootings (victim and suspect summed).
263
253
232
172
183
0
50
100
150
200
250
300
2010200920082007200
6
N
u
m
b
e
r
o
f
V
ic
t
i
m
s
Fig. 1 Gang-involved shootings in Boston, 2006–20
10
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Matching Treatment Gangs with Comparable Control
Gangs
It is important to note here that evaluating Ceasefire is a particularly difficult task. The
Ceasefire intervention was explicitly designed to deter continued gun violence by gangs
not subjected to the treatment. As Kennedy et al. (1996, p. 181) describe in their discussion
of evaluating Ceasefire in Boston during the 1990s:
…rather than trying to protect certain areas or groups from the intervention, as in the
traditional experimental design, the working group went to considerable effort to
design an intervention that would create ‘‘spillover’’ effects onto other gangs and
neighborhoods – through the communications strategy, interfering in active or nas-
cent gang vendettas, fear reduction, and the like. Thus, a traditional evaluation would
find no impact—youth homicide would fall in the targeted areas … and in all other
areas of the city…
Kennedy et al. (1997, p. 240) describe how social network analysis concepts were used to
assist the diffusion of the deterrence message across Boston’s gang landscape:
We used structural network analysis in pursuit of support for an effective commu-
nications strategy. Here, [social network analysis software] was employed to identify
naturally existing subgroups, or ‘‘cliques,’’ such that talking to one member would
effectively be talking to all members [of that clique] … for clique identification,
conflict and alliance networks were combined and analyzed.
The post-2007 version of Boston Ceasefire attempted to create these spillover effects
onto other gangs that were socially connected to targeted gangs through rivalries and
alliances. As Ceasefire interventions were completed on targeted gangs, the Ceasefire
Working Group directly communicated to their rivals and allies that ‘‘they would be next’’
if these groups decided to retaliate against treated rival gangs or continue shootings in
support of treated allied gangs. These messages were delivered to members of socially-
connected gangs via individual meetings with gang members under probation supervision
and through direct ‘‘street conversations’’ with gang members by BPD officers and gang
outreach workers.
One key assumption that underlies all controlled program evaluations is the ‘‘stable unit
treatment value assumption’’ (SUTVA). This assumption requires that the treatment or
control condition to which a unit is assigned has no impact on the response of another unit
(Rubin 1990). Including untreated Boston street gangs that were socially connected to
Ceasefire gangs as comparison groups in our impact evaluation would violate SUTVA. The
Ceasefire program was explicitly designed to ensure that knowledge of Ceasefire actions
taken against their immediate rivals and allies would diffuse into these untreated groups
and influence their subsequent gun violence behaviors. To minimize SUTVA violations,
we excluded all untreated Boston street gangs that were known to have a rivalry or alliance
with Ceasefire gangs from consideration as comparison groups in our quasi-experimental
evaluation. This process resulted in N = 82 gangs that were not socially connected to the
N = 19 Ceasefire gangs as possible comparison groups.
3
3
We used data from a recent social network analysis of the rivalries and alliances among Boston gangs to
identify the untreated gangs that were socially connected to the N = 19 Ceasefire gangs. Rivalries and
alliances between gangs were determined through focus groups with police officers, probation officers, and
streetworkers (city-employed gang outreach workers) based on their working knowledge of past and
ongoing gang violence. Some gangs connected in rivalries and alliances to Ceasefire gangs also directly
received treatment. For instance, the Lucerne Street Doggz had rivalries with eight other gangs and alliances
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We recognize that our strategy to address possible SUTVA violations is limited. The
gun violence behaviors of untreated gangs with second- and third-order social connections
to treated gangs may have been impacted through the indirect transmission of knowledge
on the consequences experienced by treated gangs. The Ceasefire intervention could have
also affected the gun violence behaviors of untreated gangs located in proximate neigh-
borhoods that were not socially connected to treatment gangs through local non-gang
social networks. In essence, these social dynamics introduce a potential bias against
establishing a statistically-significant Ceasefire treatment effect. Our analyses would then
represent a very conservative test of program impacts.
Using Stata 12.1 statistical software, we executed PSMATCH2 propensity score
matching routines (Leuven and Sianesi 2003) to develop matched comparison and treat-
ment groups from the untreated gangs and the Ceasefire gangs. Propensity score matching
techniques attempt to create equivalent treatment and comparison groups by summarizing
relevant pre-treatment characteristics of each subject into a single-index variable (the
propensity score) and then matching subjects in the untreated comparison pool to subjects
in the treatment group based on values of the single-index variable (Rosenbaum and Rubin
1983, 1985). As such, we drew upon detailed information on the characteristics of Boston
gangs from a recent investigation of the relative importance of prior conflicts and the
proximity of gang turf on gun violence outcomes. The propensity score matching routine
included the following nine characteristics:
1. Number of total shootings committed by each gang in 2006 (pre-Ceasefire). Gun
violence among Boston gangs has been previously described as perpetuated by
vendettas and ongoing series of retaliations (Kennedy et al. 1996). Gangs with higher
levels of gun violence have an increased risk of persisting in their shooting behaviors
over time.
2. Gang membership size. Gangs with larger memberships have an increased number of
members who can commit or be victimized by shootings.
4
3. Adjacency to another gang’s turf. Research suggests that gang violence is more likely
to erupt at the boundaries where gangs’ turf meet (Papachristos 2009; Tita and
Greenbaum 2009; Tita and Radil 2011). Boston gangs with turf adjacent to the turf of
another gang are more likely to be involved in serious gun violence.
5
4. Gang longevity. Gangs that have been in existence since the 1990s will have a more
stable set of rivalries and a longer history of death and injury at the hands of their
Footnote 3 continued
with four other gangs. During the study period, three of their rivals (Castlegate, Morse, and Norfolk) and
three of their allies (Favre, Kaos, and Orchard Park) also experienced Ceasefire interventions. N =
22
untreated gangs directly connected to Ceasefire gangs via rivalries or alliances were excluded from con-
sideration for inclusion in our quasi-experimental design. The exercise resulted N = 82 gangs as possible
comparison groups (123 total gangs—19 treated gangs—22 untreated gangs that were socially connected to
treated gangs = 82 possible comparison gangs).
4
Gang membership size was calculated from the roster of members of each gang in the BPD BRIC’s gang
intelligence database.
5
We used ArcGIS 10.0 mapping software to map the turf of Boston gangs as polygons that occupied a
circumscribed amount of space. We created a matrix of turf adjacency where a tie occurs if any side of a
gang polygon touches at least one side of another gang polygon.
122 J Quant Criminol (2014) 30:113–139
123
rivals; the longevity of these gangs and their ongoing disputes with rivals may increase
the likelihood of a violent dispute during the study period.
6
5. Number of rivalries with other gangs. Gangs with larger numbers of rivalries with
other gangs have an increased risk that one or more of these rivalries could turn into an
active violent dispute that would generate a string of retaliatory shootings. Retaliation
and retribution are perhaps the most frequently cited mechanisms of gang violence
(Decker 1996; Hughes and Short 2005; Papachristos 2009).
6. Number of alliances with other gangs. Similar to alliance systems in international
relations, some gangs form alliances for the benefit of mutual protection. For instance,
in a unique study on gang finances and strategy in Chicago, Levitt and Venkatesh
(2000) describe how one gang parlayed and negotiated such alliances to rally other
groups to their aid during a gang war.
7. Gang located in housing project. Research has found that housing project areas are
associated with increased levels of gang homicide relative to other city areas without
housing projects (Smith 2012).
8. The concentration of social disadvantage in each gang turf area. We included an
index that measured concentrated social disadvantage
7
in the 2000 US Census block
group(s) surrounding gang turfs to make certain that comparison gangs were selected
from neighborhoods that were similar to the neighborhoods in which the Ceasefire
gangs were located. Research reveals that the degree of concentrated social
disadvantage in a neighborhood is strongly correlated with the concentration of
violent crime (Morenoff et al. 2001; Sampson and Wilson 1995) and gang crime in
these areas (Papachristos and Kirk 2006; Rosenfeld et al.
1999).
9. Number of gang members arrested in 2006 (pre-Ceasefire). Finally, local police
departments traditionally use arrest-based enforcement strategies to suppress gang
violence (Klein 1993). Arrests of gang members could plausibly impact the likelihood
that a particular gang engages in gun violence through the removal of likely
‘‘shooters’’ from the street.
We recognize that it would have been ideal to include a greater number of covariates in
our final propensity score matching model. Indeed, the ability to balance treatment and
comparison groups on as many covariates as possible is the main strength of propensity
score methods. Unfortunately, these nine covariates represented the only group-level
descriptors for Boston gangs available at the time of this analysis. Nevertheless, we believe
6
Longevity was determined by comparing the roster of N = 123 gangs with at least one shooting during
the 2006–2010 study time period to the roster of active Boston gangs in 1995 identified by Kennedy et al.
(1997).
7
The concentrated disadvantage index is a standardized index composed of the percentage of residents who
are black, the percentage of residents receiving public assistance, the percentage of families living below the
poverty line, the percentage of female-headed households with children under the age of 18, and the
percentage of unemployed residents (as measured by the percentage of men over the age 16 who did not
work in the previous year) (see Morenoff et al. 2001; Sampson et al. 1997). Because of the high correlation
of these variables, we conducted principal components factor analysis, which revealed that variables load on
a single factor (which was retained as a standardized index variable). For example, a Boston block group
featuring a disadvantage index score of 1.5 would be 1.5 SD more disadvantaged than the mean Boston
block group. As such, the disadvantage index is adjusted specifically for the city of Boston using 2000
Census variables, even while the components used to construct the index remain constant across much
neighborhood research and remain robust predictors of crime across a variety of city types and spatial
aggregations. For those gangs whose turf spanned more than one census block group, we used a spatially-
weighted mean of the connected block groups to calculate the disadvantaged index for the neighborhood
surrounding each gang’s turf.
J Quant Criminol (2014) 30:113–139 123
123
our parsimonious propensity score model captures the gang-level covariates most directly
associated with gun violence behaviors that would influence the selection of particular
gangs for Ceasefire treatment. As we describe in detail below, our impact analysis was not
affected by unobserved variables that could simultaneously affect gang assignment to the
Ceasefire treatment and gun violence outcomes.
The broader propensity score matching literature identifies a wide variety of matching
algorithms with different choices that need to be made when each approach is used (see,
e.g. Apel and Sweeten 2010; Heckman et al. 1997; Imbens 2004; Smith and Todd 2005).
We selected radius matching with a caliper = 0.01 as our primary propensity score
matching algorithm. According to Dehejia and Wahba (2002), the basic idea of this variant
is to use not only the nearest neighbor within each caliper but all of the comparison
members within the caliper. A benefit of radius matching is that the approach uses only as
many comparison units as are available within the caliper and therefore allows for usage of
additional units when good matches are available or fewer units when good matches are
not available (Caliendo and Kopeinig 2005). As such, the approach minimizes the risk of
bad matches.
Table 1 reports the results of the propensity score radius matching with a cali-
per = 0.01. The table presents the pre- and post-matching t tests and the standardized bias
statistics which represents the mean difference as a percentage of the average standard
deviation between the groups (Rosenbaum and Rubin 1985). In the matched sample, all
p values are higher than 0.05, and all bias statistics are less than 20.0 (a general ‘rule of
thumb’ for balanced groups; see also Austin et al. 2007).
8
This confirmed that we achieved
balanced treatment and comparison groups. PSMATCH2 radius matching (caliper = 0.01)
routine revealed that the 16 matched Ceasefire treatment gangs and 37 matched compar-
ison gangs were in the common support region. This ensures that gangs with the same
X values have a positive probability of being both treated and untreated (Heckman et al.
1999).
Growth-Curve Regression Model Specification
We use a variation of a multi-level negative binomial regression model in order to analyze
the quarterly change in gang-involved shootings for treatment and comparison gangs over
a 5-year observation period (2006–2010, N = 20 quarters).
9
More specifically, we
8
For balancing properties to be satisfied in the propensity score matching analysis, certain pre-treatment
characteristics needed to be entered as dummy variables into the Stata 12.0 PSMATCH2 routine. The total
number of shootings in 2006 and the number of members of each gang were entered as interval-level
measures. Adjacent gang turf was coded ‘‘0’’ for gangs that did not have turf adjacent to another gang’s turf
and ‘‘1’’ for gangs that did have turf adjacent to another gang’s turf. Longevity was coded ‘‘0’’ for gangs that
did not exist in 1995 and ‘‘1’’ for gangs that did exist in 1995. The number of rivalries was coded as ‘‘0’’ for
gangs that had 2 or fewer rivalries and ‘‘1’’ for gangs that had 3 or more rivalries. The number of alliances
was coded as ‘‘0’’ for gangs that had no alliances and ‘‘1’’ for gangs that had alliances with at least one other
gang. Housing project gang was coded as ‘‘0’’ for gangs not located in a housing project and ‘‘1’’ for gangs
were located in a housing project. The concentration of disadvantage in the surrounding Census block
group(s) was coded as ‘‘0’’ for gang turf located in block groups below the 75th percentile and ‘‘1’’ for gang
turf located in block groups at the 75th percentile or greater. The number of gang arrests in 2006 was coded
as ‘‘0’’ for gangs with 14 or fewer arrests in 2006 and ‘‘1’’ for gangs with 15 or more arrests in 2006.
9
The quarterly total gang-involved shootings for the N = 53 treatment and comparison gangs used in these
analyses were distributed as overdispersed count data. The distribution had a mean = 1.39, standard
deviation = 1.89, and variance = 3.57. One sample Kolmogorov–Smirnov nonparametric tests rejected the
null hypotheses that the observed distribution was not different from a normal distribution (p \ 0.0001) and
not different from a Poisson distribution (p \ 0.0001).
124 J Quant Criminol (2014) 30:113–139
123
developed individual growth curve models to estimate street gang changes in violent index
crime incidents over the observation period (Gelman 2005; Singer and Willet 2003). Here
we used a longitudinal negative binomial model where we predict within unit variation at
level 1 and between unit variation at level 2 using level 1 intercepts and slopes as out-
comes. In non-technical terms, we are interested in accurately analyzing the overall
shooting trend of each of the street gangs during the observation period. Each street gang is
also allowed to have its own slope and intercept in order to model different starting levels
of shootings as well as different rates of change. This is consistent with the variation
observed in shootings by gangs—some groups are highly active and others are less active.
Formally, the model is specified as follows where yit is the count for the tth observation
in the ith group. The model begins with yitj�Poisson citð Þ where citj�gamma kit; dið Þ with
Table 1 Balancing treatment and comparison gangs through propensity score matching
Characteristics Treated Untreated % Bias % Bias reduction t test p [ |t|
Total shootings in 2006
Unmatched 8.368 3.683 53.8 2.73** 0.007
Matched 9.562 8.374 13.6 74.7 0.33 0.746
Gang size
Unmatched 41.375 31.920 31.7 1.17 0.247
Matched 42.267 39.365 9.7 69.3 0.26 0.794
Adjacent gang turf
Unmatched 0.526 0.471 10.9 0.44 0.661
Matched 0.667 0.644 4.4 59.1 0.13 0.901
Longevity
Unmatched 0.625 0.540 16.9 0.61 0.543
Matched 0.600 0.586 2.8 83.6 0.07 0.941
More than 2 rivalries
Unmatched 0.577 0.251 69.6 2.95** 0.004
Matched 0.751 0.699 11.0 84.2 0.27 0.787
1 or more gang alliances
Unmatched 0.684 0.416 55.0 2.20* 0.0
30
Matched 0.733 0.804 -14.7 73.3 -0.45 0.656
Housing project gang
Unmatched 0.211 0.173 9.4 0.39 0.698
Matched 0.250 0.269 -4.8 48.6 -0.12 0.905
High disadvantage in census block group
Unmatched 0.571 0.254 66.4 2.35* 0.021
Matched 0.500 0.524 -5.1 92.4 -0.11 0.911
15 or more gang arrests in 2006
Unmatched 0.578 0.291 59.5 2.51* 0.013
Matched 0.667 0.675 -1.8 96.9 -0.05 0.960
N = 53 (16 treated gangs, 37 comparison gangs)
Radius matching propensity score model (caliper = 0.01)
* p \ 0.05
** p \ 0.01
J Quant Criminol (2014) 30:113–139 1
25
123
kit ¼ expðxitb þ offsetitÞ and di represents the dispersion parameter. This produces the
following equation:
Pr Yit ¼ yitjxit; dið Þ¼
C kit þ yitð Þ
C kitð ÞC yit þ 1ð Þ
1
1 þ di
� �kit di
1 þ di
� �yit
ð1Þ
Following Gelman (2005) and others (Long and Freese 2006; Singer and Willet 2003),
this specification yields a negative binomial model for the ith group with dispersion equal
to 1 ? d, in other words, a constant dispersion within groups. Thus, we feel that such a
specification fits the observed distribution of our data.
For a random-effects over-dispersion model, d varies randomly across observational
units. We therefore assume that 1
1þd
i
� �
�Betaðr; sÞ. Accordingly, the joint probability of
the counts for the ith group is:
Pr Yi1 ¼ yi1;. . .;Yini ¼ yinijXið Þ¼
Z 1
0
Yni
t¼1
Pr Yit ¼ yitjxit;dið Þf dið Þddi
¼
C rþsð ÞCðrþ
P
ni
t¼1kitÞCðsþ
Pni
t¼1 yitÞ
CðrÞCðsÞCðr þsþ
Pni
t¼1 kit þ
Pni
t¼1 yitÞ
Yni
t¼1
Cðkit þyitÞ
CðkitÞCðyit þ1Þ
ð2Þ
For Xi ¼ðxi1; . . .; xinÞ and where f is the probability density for di. This yields the
following log likelihood:
ln L ¼
Xn
i¼1
wi ln Cðr þ sÞþ ln C r þ
Xni
k¼1
kik
!
þ ln C s þ
Xni
k¼1
yik
!
� ln CðrÞ¼ ln CðsÞ
”
� ln C r þ s þ
Xni
k¼1
kik þ
Xni
k¼1
yik
!
þ
Xni
t¼1
ln C kit þ yitð Þ� ln C yit þ 1ð Þf g
#
ð3Þ
Following these equations, our final model is as follows:
Yij ¼ ai þ b1iðCeasefireÞþ b2iðperiodÞþ b3iðimpactÞþ b4iðtrendÞþ b5iðtrend2Þ
þ b6iðquarter2Þþ b7iðquarter3Þþ b8iðquarter4Þþ b9iðiptwÞ ð4Þ
where the quarterly counts of total gang-involved shooting incidents over the 5-year study
time period was our primary outcome measure (Yij). However, in addition to our simple
effect size analyses, we also analyzed changes in the quarterly counts of victim gang-
involved shootings and the quarterly counts of suspect gang-involved shootings. To esti-
mate the effect of the Ceasefire treatment, we created a dichotomous dummy variables
indicating whether a street gang was in the treatment group (1) or in the comparison group
(0) (Ceasefire) and whether the quarter was pre-intervention (0) or during the intervention
period (1) (period). We then created a differences-in-differences (DID) estimator by inter-
acting these two dummy variables (impact).
To account for secular linear and nonlinear quarterly trends in the dependent variable,
we included a variable that was measured as the simple linear additive progression for each
quarter over the course of the 5-year observation period (trend) and a variable that squared
this simple linear additive progression for each quarter (trend2). We also controlled for
seasonal variations in the quarterly counts of shootings by including a polychotomous
126 J Quant Criminol (2014) 30:113–139
123
dummy variable (quarter2, quarter3, and quarter4).
10
We estimated the growth curve
regression models with the inverse-weighted propensity score value (1/p) for each of the
treatment and comparison gangs (represented in the above equation by iptw). The inclusion
of this covariate controlled for observable differences between the gangs in the treatment
and comparison groups given the covariates used to calculate the propensity score (Imbens
and Wooldredge 2009).
The XTNBREG command in Stata 12.1 statistical software was used to calculate the
maximum likelihood estimate of the parameters for the DID estimator and to compute the
associated probability values; this provided estimates of the effects of the Ceasefire
intervention on the treatment gangs as relative to the comparison gangs. The parameter
estimates were expressed as incidence rate ratios (i.e., exponentiated coefficients). Inci-
dence rate ratios are interpreted as the rate at which things occur; for example, an incidence
rate ratio of 0.90 would suggest that, controlling for other independent variables, a one unit
increase in the selected independent variable was associated with a 10 % decrease in the
rate at which the dependent variable occurs. Following social science convention, the two-
tailed 0.05 level of significance was selected as the benchmark to reject the null hypothesis
of ‘‘no difference.’’
Results
Simple Pre-Post Analysis of Matched Ceasefire Gangs and Matched Comparison
Gangs
Figure 2 presents the yearly mean total gang-involved shootings between 2006 and 2010
for the 16 matched Ceasefire gangs and the 37 matched comparison gangs. During the
study time period, the yearly mean total gang-involved shootings per Ceasefire gang
decreased by 57.3 % from 9.6 shootings in 2006 to 4.1 shootings in 2010. In contrast, the
yearly mean total gang-involved shootings per comparison gang decreased by only 20.2 %
from 8.4 shootings in 2006 to 6.7 shootings in 2010. Consistent with the trends in yearly
mean total gang-involved shootings, the Ceasefire gangs experienced larger decreases in
both yearly mean suspect and victim gang-involved shootings relative to the comparison
gangs. Between 2006 and 2010, yearly mean suspect gang-involved shootings per
Ceasefire gang decreased by 60.7 % (from 5.6 to 2.2) and yearly mean victim gang-
involved shootings per Ceasefire gang decreased by 52.5 % (from 4.0 to 1.9); in contrast,
yearly mean suspect gang-involved shootings per comparison gang decreased by 23.3 %
(from 4.3 to 3.3) and yearly mean victim gang-involved shootings per comparison gang
decreased by 17.1 % (from 4.1 to 3.4).
Standardized mean difference effect size statistics were used to determine whether the
shooting reductions observed for the treated Ceasefire gangs were significantly larger than
the shooting reductions observed for the comparison gangs. The standardized mean-dif-
ference effect size (d) is designed for contrasting two groups on a continuous dependent
variable (Lipsey and Wilson 2001). For this simple analysis, we calculated the mean Time
10
Quarter 1 served as the reference category for this polychotomous dummy variable. Quarter 1 represented
whether the outcome included the sum of January, February, and March shootings (1 = Yes, 0 = No).
Quarter 2 represented whether the outcome included the sum of April, May, and June shootings (1 = Yes,
0 = No). Quarter 3 represented whether the outcome included the sum of July, August, and September
shootings (1 = Yes, 0 = No). Quarter 4 represented whether the outcome included the sum of October,
November, and December shootings (1 = Yes, 0 = No).
J Quant Criminol (2014) 30:113–139 127
123
2 (year 2010) minus Time 1 (year 2006) gain score, the SD of the gain score, and the
correlation between the Time 1 and Time 2 scores for the matched 16 Ceasefire gangs and
the 37 matched comparison gangs. These statistics were entered into David B. Wilson’s
Practical Meta-Analysis Effect Size Calculator to estimate the standard mean difference
effect sizes.
11
For total gang-involved shootings, the Ceasefire intervention was associated
with a large, statistically-significant standardized mean difference effect size favoring
treatment conditions over control conditions (d = -0.7678; 95 % CI = -1.4221,
-0.1136; v = 0.1114). For suspect gang-involved shootings, the Ceasefire intervention
was associated with a larger statistically-significant standardized mean difference effect
size favoring treatment conditions over control conditions (d = -0.869; 95 % CI =
-1.6022, -0.1358; v = 0.1339). While the statistic suggested a beneficial impact on
victim gang-involved shootings, the standardized mean difference effect size was modest
and not statistically significant (d = -0.4799; 95 % CI = -1.1807, 0.2209; v = 0.1278).
Growth Curve Regression Model and Sensitivity Analysis Results
Table 2 presents the results of the growth curve regression models. Controlling for the
other covariates, the Ceasefire intervention was associated with a statistically-significant
30.8 % reduction (p \ 0.05) in quarterly total gang-involved shootings, a statistically-
significant 34.7 % reduction (p \ 0.05) in quarterly suspect gang-involved shootings, and
a statistically-significant 26.9 % reduction (p \ 0.05) in quarterly victim gang-involved
shootings for the treatment gangs relative to the comparison gangs. The Ceasefire dummy
variable was not statistically significant (p \ 0.05) for all three outcome variables, con-
firming that the matched groups were comparable on the gun violence outcome measures
controlling for the other covariates. For all three outcome variables, the growth curve
regression models revealed that Boston gang-involved shootings had statistically-sig-
nificant seasonal variations; relative to January through March quarterly gang-involved
shooting counts (Quarter 1), April through June (Quarter 2) and July through September
(Quarter 3) experienced higher counts of gang-involved shootings (p \ 0.01). As expected,
the inverse propensity score had a statistically-significant negative association with the
9.1
6.8
4.1
5
9.6
6.2
7.48
8.4
6.7
0
2
4
6
8
10
12
20102009200820072006M
e
a
n
T
o
ta
l
S
h
o
o
ti
n
g
s
P
e
r
G
a
n
g
Ceasefire
Matched Ceasefire Gangs (N=16) Matched Comparison Gangs (N=37)
Fig. 2 Mean gang-involved shootings for matched ceasefire gangs and matched comparison gangs
11
http://gemini.gmu.edu/cebcp/EffectSizeCalculator/d/mean-gains-scores-and-gain-score.html.
128 J Quant Criminol (2014) 30:113–139
123
three gang-involved shooting outcome variables (p \ 0.01).12 This suggests that Boston
gangs with higher levels of shootings were more likely to be included in the quasi-
experimental analysis.
While the propensity score matching process ensures balance on observed confounders,
unobserved variables could simultaneously affect assignment into treatment and the out-
come (Rosenbaum 2002). This hidden bias would alter our inferences about Ceasefire
treatment effects. For instance, our propensity score model did not include information
about the organizational structure of Boston gangs. A recent study by Decker et al. (2008)
demonstrates that even modest increases in organizational structure are correlated with
increases in patterns of victimization and offending. To examine the robustness of our
results against possible hidden bias, we used the bounding approach proposed by
Rosenbaum (2002) via the RBOUNDS user-written routine in Stata 12.1 (DiPrete and
Gangl 2004). The Rosenbaum bounds techniques allows researchers to determine how
strongly an unobserved variable must influence the selection process to alter inference
about treatment effects. No hidden bias is represented when bound estimate C = 1.
Table 2 Ceasefire impacts on gang-involved shooting incidents: growth curve regression models
Shooting suspect Shooting victim Total shooting
Ceasefire impact (interaction) 0.653 (0.117)* 0.731 (0.101)* 0.692 (0.108)*
Ceasefire gang (1 = treated) 1.167 (0.139) 1.031 (0.098) 1.099 (0.109)
Period (1 = intervention) 0.681 (0.173) 0.816 (0.211) 0.756 (0.152)
Trend 0.917 (0.055) 0.993 (0.063) 0.940 (0.045)
Trend-squared 1.004 (0.002) 0.999 (0.003) 1.002 (0.002)
Quarter 2 1.504 (0.181)** 1.364 (0.177)* 1.463 (0.143)**
Quarter 3 1.389 (0.177)** 1.376 (0.187)* 1.401 (0.145)**
Quarter 4 0.763 (0.115) 0.982 (0.149) 0.859 (0.102)
Inverse propensity score 0.984 (0.007)** 0.976 (0.007)** 0.978 (0.006)**
Constant 3.495 (1.001)** 2.644 (0.787)* 3.275 (0.722)**
Log likelihood -1,123.031 -1,069.628 -1,552.587
Wald v2 108.12** 58.82** 123.36**
Wald df 9 9 9
Observations (gangs 9 quarters) 1,060 1,060 1,060
Number of gangs 53 53 53
Coefficients expressed as incidence rate ratios. SE are in parentheses. Quarter 1 is the reference category for
the seasonal dummy variable
* p \ 0.05
** p \ 0.01
12
Since the selection of a matching algorithm and its particular specification can be a subjective process
(Apel and Sweeten 2010), we conducted a supplementary analysis to ensure that any program impacts were
robust across a variety of matching algorithms and caliper/bandwidth selections. This exercise was not
intended to be an exhaustive examination of all possible propensity score methods. As such, we included a
representative selection of approaches: radius matching (calipers = 0.1, 0.01, 0.001), Gaussian kernel
matching (bandwidth = 0.1, 0.01, 0.001), Epanechnikov kernel matching (bandwidth = 0.1, 0.01, 0.001),
stratification matching (10 strata), and simple nearest neighbor matching. While the estimates differed
somewhat across the varying propensity score matching methods, the Ceasefire treatment effect remained
robust. The Ceasefire impact estimates ranged from a statistically significant 28 % reduction (p \ 0.05) to a
statistically significant 35 % reduction (p \ 0.05).
J Quant Criminol (2014) 30:113–139 129
123
Underestimated or overestimated treatment effects that may be due to unobserved con-
founding are represented by C bound estimates higher than 1. A scenario of C = 1.50
suggests that hidden bias would increase the odds of receiving Ceasefire treatment for
gangs actually receiving Ceasefire treatment by 50 % relative to gangs that did not receive
Ceasefire treatment.
Table 3 presents the results of our Rosenbaum bounds sensitivity analysis. Given the
direction of the estimated Ceasefire treatment effect, our analysis focused on negative self-
selection of gangs into the treatment. Positive self-selection of gangs would simply cause
our findings to be conservative. The p-critical values represent the bound of the signifi-
cance level of the treatment effect in the case of endogenous selection into treatment status
(DiPrete and Gangl 2004). The results show that the critical level of C at which the
estimated Ceasefire treatment effect would no longer be statistically significant at the 5 %
level is 1.45 for total gang shootings, 1.55 for suspect gang shootings, and 1.40 for victim
gang shootings.
13
Our conclusion that gun violence involving gangs that received the
Ceasefire treatment was significantly lower than gun violence involving gangs that did not
receive Ceasefire treatment would be challenged if an unobserved variable increased the
odds that Ceasefire gangs received the Ceasefire treatment by 45 % for total shootings, by
55 % for suspect shootings, and by 40 % for victim shootings.
Table 3 also presents the magnitude of the hidden bias that would cause us to revise our
findings of the causal effects of Ceasefire on gang shootings. Hidden bias equivalents were
calculated at the mean of the covariates for 2010 gang shootings. For total gang shootings
in 2010, the critical level of C = 1.45 is attained at a difference of 4.57 shootings per gang.
The Ceasefire average treatment effect on treated (ATT) is -5.21 (SE = 2.41, p \ 0.05)
for 2010 total gang shootings.
14
The unobserved variable would have to produce a dif-
ference of similar magnitude to the Ceasefire treatment effect in order to alter our con-
clusions. While these results convey important information about the level of uncertainty
contained in matching estimators by showing how large a confounding variable must be to
undermine the conclusions of our matching analysis, it is important to note that Rosenbaum
bounds represent a ‘‘worst case’’ scenario (DiPrete and Gangl 2004). As such, these
Table 3 Sensitivity analysis:
Rosenbaum bounds for Ceasefire
treatment effect
Hidden bias equivalents were
calculated at the mean of the
observed covariates for 2010
gang shootings
Ceasefire treatment effect C p-critical Hidden bias
equivalent
Total gang-involved shootings 1.40 0.050 -4.41
1.45 0.055 -4.57
Gang suspect shootings 1.50 0.048 -2.52
1.55 0.054 -2.68
Gang victim shootings 1.35 0.046 -1.73
1.40 0.053 -1.88
13
A value of C = 1.45 for total gang shootings indicates that the confidence interval for the Ceasefire
treatment effect would include zero if an unobserved variable caused the chance of treatment assignment to
differ between treatment and control groups by 1.45 and if this variable’s effect on total shootings was so
strong as to almost perfectly determine whether total shootings would be bigger for the treatment or the
control gang in each pair of matched gangs in the data (see DiPrete and Gangl 2004).
14
Similar conclusions can be drawn by comparing the Rosenbaum bounds results to the ATT models for
2010 suspect shootings (ATT = -3.54, SE = 1.73, p \ 0.05) and 2010 victim shootings (ATT = -2.11,
SE = 1.24, p \ 0.10). For all three ATT models (radius matching, caliper = 0.01), bootstrapped standard
errors with 100 replications are provided.
130 J Quant Criminol (2014) 30:113–139
123
analyses suggest that our propensity score matching estimators are robust to hidden bias
caused by an unobserved confounder.
Supplementary Analysis of the Timing of Treatment and
Observed Reductions in Gang Shootings
We selected January 2007 as the start date of the reinvigorated Operation Ceasefire
strategy because it represented the first full month of a regime change in the BPD that
delivered a fully-implemented program. Given the complex and intensive work required to
implement a focused deterrence intervention on an individual gang, it was simply not
possible for the Ceasefire Working Group to address the persistent violent behavior gen-
erated by all treated gangs at the same point in time. The Ceasefire intervention was
applied to 9 gangs in 2007, 6 gangs in 2008, and 1 gang in 2009. As such, the actual
delivery of the intervention to treated gangs occurred in a staggered manner during the
post-intervention time period. The overall dosage of Ceasefire intervention to Boston gangs
increased during the post-intervention period as suggested by the linear decrease in yearly
total shootings by treated gangs in Fig. 2.
To make a direct link between the application of the Ceasefire treatment and subsequent
changes in violent gang behavior, we conducted an exploratory analysis to identify abrupt
statistically-significant reductions, known as structural breakpoints, in quarterly total gang-
involved shootings for each of the 16 matched Ceasefire gangs. Using the NBREG com-
mand in Stata 12.1, we ran a series of 18 negative binomial regressions for each Ceasefire
gang with a varying quarterly intervention point between Quarter 2 and Quarter 19 that
included controls for secular trends and quarterly seasonal variations. Dummy variables
(0 = pre-intervention, 1 = intervention) were used to estimate the adjusted pre-post mean
difference in total shootings by and against each Ceasefire gang for each of the 18 quarters
between Quarter 2 and Quarter 19.
15
A sharp and sustained break in the quarterly shooting
time series will lead to significant before and after differences for several time periods
around the intervention. This is because these structural breakpoint analyses involve, in
essence, comparisons of two means adjusted for other factors (see Piehl et al. 2003).
However, if Ceasefire did produce the desired impact, the maximal structural breakpoint in
each time series should coincide with the quarter when treatment was applied or in the
quarter immediately following the treatment application.
We reviewed official records maintained by the BPD on Ceasefire actions during the
study time period to determine the specific quarter that the treatment was fully imple-
mented. Ceasefire was considered fully implemented for a targeted gang when three
components were present: (1) direct communications with the gang had occurred, (2) social
services and opportunities were available to gang members who wanted them, and (3) a
customized law enforcement response was delivered. We illustrate our structural break-
point analyses by presenting the details of this exercise for the first gang to receive the full
Ceasefire treatment under the new regime.
The Lucerne Street Doggz was the first group selected for Ceasefire intervention
because it was the most violent gang in Boston at the beginning of the study time period.
The Doggz were a loosely-organized gang based in the disadvantaged Lucerne Street area
of the Mattapan section of Boston (District B-3). In 2006, the Lucerne gang had roughly 50
members and was involved in violent disputes with eight rival gangs—Big Head Boys,
15
We excluded Quarter 1 and Quarter 20 to ensure that our quarterly impact estimates were based on at
least two quarters (6 months) of shooting data for each Ceasefire gang.
J Quant Criminol (2014) 30:113–139 131
123
Morse Street, Norfolk, Greenwood, Heath Street, Orchard Park, H-Block, and Winston
Road. Lucerne was the suspect group in 30 gang-involved shootings and the victim group
in 7 gang-involved shootings in 2006. BRIC intelligence suggested that most of the
Lucerne shootings, which accounted for nearly 10 % of all Boston shootings in 2006, were
carried out by no more than 6 or 7 members of the gang.
In late 2006, BPD District B-3 detectives and officers decided to implement a Ceasefire
intervention to address the persistent shootings generated by Lucerne. They partnered with
the U.S. Attorney’s Office, Suffolk County District Attorney’s Office, Boston School
Police, Massachusetts Department of Youth Services, Massachusetts Department of Pro-
bation, Boston Ten Point Coalition, Boston Centers for Youth and Families streetworkers,
Youth Service Providers Network (social work program) and Youth Opportunities Boston
(non-profit employment development agency) on a ‘‘call-in’’ to deliver the Ceasefire anti-
violence message. On November 14, 2006, 22 members of the Lucerne Street Doggz
attended the call-in; 11 members made appointments with Youth Opportunities Boston to
explore job placement options and 7 members requested follow-up meetings with Youth
Service Providers Network counselors. Unfortunately, since the BPD was not fully
invested in the Ceasefire approach, Lucerne did not face any enhanced enforcement
response to their continued violent behavior after the call-in. BPD participation in the
Lucerne Street effort was limited to a handful of B-3 detectives and officers; the citywide
YVSF and the Drug Control Unit were not involved in this initiative. After a relatively
quiet winter period, Lucerne continued its torrid involvement in shootings and, by the end
of May 2007, was the suspect group in another 21 gang-involved shootings and the victim
group in another 6 gang-involved shootings.
As described earlier, in December 2006, newly-appointed Commissioner Davis man-
dated that Ceasefire needed to be the BPD’s marquee response to ongoing gang violence.
In January 2007, then-Deputy Superintendent Gary French, who was charged by Davis to
coordinate the citywide implementation of Ceasefire, started regular meetings of the
interagency Operation Ceasefire working group. It was critical to establish the credibility
of the Ceasefire anti-violence message on the streets of Boston again. Since Lucerne had
been subjected to a call-in and continued on its violent path, the Ceasefire working group
needed to make good on the promise that a strong enforcement response would soon
follow. With the support of the Drug Control Unit and District B-3 personnel, the YVSF
worked with the U.S. Attorney’s Office, Suffolk County District Attorney’s Office, Drug
Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms, and Explosives in
a focused investigation of the Lucerne Street Doggz. On May 24, 2007, 25 Lucerne Street
gang members were taken into custody and charged with federal and state drug and
firearms offenses (Ellement 2007). As Fig. 3 reveals, the impact of the Ceasefire inter-
vention on their gun violence behavior was noteworthy. In 2006 and 2007, Lucerne gang
averaged 33.5 total shootings per year. Their yearly average plummeted by 87.2 % to 4.3
per year between 2008 and 2010.
Table 4 presents a summary assessment of the timing of Ceasefire interventions and
maximum quarterly total shooting reductions for the 16 matched treatment gangs. Since
this was an exploratory analysis of only 20 quarterly observations for each gang, we
relaxed our benchmark to reject the null hypothesis of ‘‘no difference’’ to the less
restrictive p \ 0.10 level. The key components of Ceasefire intervention on the Lucerne
Street Doggz—direct communications with the gang, offers of services and opportunities,
and the delivery of an enhanced enforcement response—were in place in Quarter 6 (April–
June 2007). The table shows that the maximum statistically-significant reduction
132 J Quant Criminol (2014) 30:113–139
123
30
22
3 4 3
7
8
1
1
1
0
5
10
15
20
25
30
35
40
20102009200820072006
N
u
m
b
e
r
o
f
S
h
o
o
ti
n
g
s
Suspect Victim
Lucerne Operation Completed
May 24, 2007
Fig. 3 Total shootings involving Lucerne Street Doggz, 2006–2010
Table 4 The timing of ceasefire interventions and maximum shooting reductions for 16 matched treatment
gangs
Treatment gangs Ceasefire quarter Max. reduction quarter Ceasefire coef. (SE) Effect?
Lucerne Apr–Jun 07 Jul–Sep 07 -0.65 (0.30)*
Yes
Morse Apr–Jun 07 Jul–Sep 07 -0.71 (0.48)
?
Yes
Favre Apr–Jun 07 Jul–Sep 07 -1.29 (0.58)* Yes
Norfolk Jul–Sep 07 Jul–Sep 07 -0.73 (0.29)** Yes
Kaos Jul–Sep 07 Jan–Mar 08 -0.53 (0.98) No
Castlegate Jul–Sep 07 Oct–Dec 07 -3.00 (1.20)** Yes
Everton/Geneva Jul–Sep 07 Oct–Dec 07 -2.39 (0.82)** Yes
Greenfield Jul–Sep 07 Jul–Sep 07 -1.94 (0.85)** Yes
Heath Jul–Sep 07 Jul–Sep 07 -0.83 (0.42)* Yes
St. James Jan–Mar 08 Apr–Jun 08 -1.04 (0.47)* Yes
H-Block Jan–Mar 08 Apr–Jun 08 -0.54 (0.31)
?
Yes
Wood Ave Jan–Mar 08 Apr–Jun 08 -0.44 (0.28) No
Orchard Park Apr–Jun 08 Jul–Sep 08 -0.75 (0.41)
?
Yes
Forest Hills Jul–Sep 08 Oct–Dec 08 -0.51 (0.30)
?
Yes
Wainwright Park Oct–Dec 08 Apr–Jun 09 -0.87 (0.59) No
Annunciation/mission Apr–Jun 09 Jul–Sep 09 -3.19 (1.03)** Yes
N = 20 quarters per gang
Negative binomial regression models controlling for simple linear trends and seasonal variations were used
to identify the maximal break point in each of the 16 time series. The models suggested a statistically-
significant Ceasefire impact in 13 of the 16 gang-involved total shooting time series (binomial sign test
proportion = 0.8125, two-tailed p = 0.0213)
?
p \ 0.10
* p \ 0.05
** p \ 0.01
J Quant Criminol (2014) 30:113–139 133
123
(p \ 0.05) in the quarterly counts of total shootings for Lucerne occurred in Quarter 7
(Jul–Sep 07) of the time series.
As Table 4 reveals, 13 of the 16 matched treatment gangs experienced their largest
statistically-significant reduction in total shootings in the same quarter as or the quarter
immediately following the full implementation of Ceasefire. To test whether this distri-
bution of ‘‘successes’’ relative to ‘‘failures’’ was significantly different than what would be
expected by chance, we used an application of the binomial distribution known as the sign
test (Blalock 1979). This test examines the probabilities of getting an observed proportion
of successes from a population of equal proportions of successes and failures. The
observed distribution binomial sign test proportion = 0.8125 (13/16) with a two-tailed
p = 0.0213. This suggests that the observed relationship between the implementation of
Ceasefire and the timing of the largest statistically-significant reductions was not generated
by a random process. In other words, Ceasefire generated noteworthy changes in the gun
violence behaviors of targeted gangs during the post-intervention time period.
Conclusions
There is a growing body of evidence that focused deterrence strategies, such as the pulling
levers approach pioneered by Operation Ceasefire in Boston, generate significant crime
reduction benefits. A recently completed Campbell Collaboration review of 11 controlled
evaluations found that focused deterrence strategies were associated an overall statistically
significant, medium-sized crime reduction effect (Braga and Weisburd 2012). This review
considered replications of the Boston Ceasefire program in five other jurisdictions,
including Cincinnati (Engel et al. 2011), Indianapolis (Corsaro and McGarrell 2009;
McGarrell et al. 2006), and Los Angeles (Tita et al. 2004). Indeed, the available scientific
evidence suggests that cities suffering from gang and criminally-active group violence
should experiment with pulling levers focused deterrence strategies.
Our quasi-experimental evaluation estimated that the reconstituted Boston Ceasefire
intervention generated a 31 % reduction in total shootings for treated gangs relative to total
shootings for matched comparison gangs. Relative to matched comparison gangs, matched
treatment gangs committed significantly fewer shootings and experienced significantly
lower levels of violent gun victimization. However, it is important note that this evaluation
yielded a much more conservative violence reduction estimate when compared to the two-
thirds reductions in youth homicides reported in the original Ceasefire quasi-experimental
evaluation (Braga et al. 2001; Piehl et al. 2003). While the biases in quasi-experimental
research are not clear (e.g. Campbell and Boruch 1975; Wilkinson and Task Force on
Statistical Inference 1999), recent reviews in crime and justice suggest that weaker
research designs often lead to more positive outcomes (e.g. see Weisburd et al. 2001;
Welsh et al. 2011).
16
16
Using the Maryland Scientific Methods Scale (Sherman et al. 1997) as a standard, the original Ceasefire
impact evaluation would be considered a ‘‘Level 3’’ evaluation and also regarded as the minimum design that is
adequate for drawing conclusions about program effectiveness. This design rules out many threats to internal
validity such as history, maturation/trends, instrumentation, testing, and mortality. However, as Farrington
et al. (2002) observe, the main problems of Level 3 evaluations center on selection effects and regression to the
mean due to the non-equivalence of treatment and control conditions. This evaluation of Ceasefire would be
considered a ‘‘Level 4’’ evaluation as it measures outcomes before and after the program in multiple treatment
and control condition units. These types of designs have better statistical control of extraneous influences on the
outcome and, relative to lower level evaluations, deals with selection and regression threats more adequately.
134 J Quant Criminol (2014) 30:113–139
123
Importantly, this study also provides some much needed evidence to address some of
the well-thought out concerns over the original Boston Ceasefire evaluation raised by the
National Academies’ Panel on Improving Information and Data on Firearms (Wellford
et al. 2005) and by Professor Zimring. Our analyses showed that Boston gangs subjected to
the post-2007 Ceasefire treatment did indeed change their gun violence behaviors relative
to Boston gangs that did not receive Ceasefire treatment. Our study also represents an
important advance over other focused deterrence evaluations that examined aggregate
citywide changes in group behavior. In Indianapolis (Corsaro and McGarrell 2009) and
Cincinnati (Engel et al. 2011), evaluators compared citywide gang and criminally-active
group homicide trends, respectively, to citywide non-gang and non-criminally-active group
homicide trends, respectively. These evaluations did not distinguish post-intervention
homicide trends for treated groups relative to post-intervention homicide trends for
untreated groups.
Some readers may wonder whether this evaluation can comment on the ‘‘true’’ impact
of Ceasefire on serious gun violence in Boston. Indeed, this evaluation focused on
addressing a key question posed by the National Academies’ Panel and Zimring—whether
treated Ceasefire gangs actually changed their violent behavior. Kennedy (1997), however,
suggests that the Ceasefire focused deterrence strategy was intentionally designed to deter
the violent behavior of gangs not directly exposed to the intervention. In essence, our
statistical models estimated the effect of treatment on the ‘‘directly’’ treated gangs but not
on the ‘‘indirectly’’ treated gangs. A full accounting of Ceasefire violence reduction effects
in Boston would also examine these second-order impacts. An important avenue of future
research would be to determine whether focused deterrence strategies created ‘‘spillover’’
violence reduction effects onto other gangs and neighborhoods. Indeed, building upon this
study, we are pursuing analyses to examine whether untreated gangs changed their gun
violence behaviors after their rivals and/or allies were subjected to the Ceasefire
intervention.
The available research on Ceasefire and its replications has thus far provided scant
empirical evidence on the ways individuals nested within targeted groups and social net-
works may change their criminal decision making processes. The Ceasefire mechanism of
putting gangs ‘‘on notice’’ is designed to increase the certainty of punishment for the group
as a whole, but it does so through (a) the diffusion of the message among individual group
members and (b) reliance on the group members, as a collective, to modify behavior
accordingly. Unfortunately, our study was not able to analyze data on individual behavior.
However, the next generation of research on focused deterrence strategies should take
advantage of an important opportunity to understand how changing the certainty of pun-
ishment for group-level criminal activity may affect individual as well as group behavior.
A recent study by Loughran et al. (2011b) offers evidence of a ‘‘tipping’’ effect, whereby
perceived risk deters only when it reaches a certain threshold, and a substantially accel-
erated deterrent effect for individuals at the high end of the risk continuum (Loughran et al.
2011b). Yet, another study found diminishing ambiguity of certainty had no observed
deterrent effect for crimes involving contact between offender and victim (Loughran et al.
2011a). It is possible that Ceasefire’s unambiguous face-to-face meetings with gang
members, coupled with demonstrated increases in the swiftness, certainty, and severity of
punishment for gun violence, exceeds the threshold for a tipping effect and substantially
accelerates the deterrent effect of the intervention for high-risk gang members. Or, it is
possible that some such tipping points operate in unexplored ways when collectivities such
as gangs are involved. Future research on Ceasefire-like interventions would do well to
J Quant Criminol (2014) 30:113–139 135
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consider how individual decision making processes operate in the context of group
accountability and interventions.
While determining whether a program generates the desired outcomes remains an
important task, we strongly believe that the next wave of research on focused deterrence
strategies needs to understand why these strategies seem to work and how these strategies
can be sustained over time. A growing number of scholars suggest that that there seems to
be additional crime control mechanisms at work in these strategies beyond straight-up
deterrence (Braga 2012; Corsaro et al. 2012; Papachristos et al. 2007). Other prevention
frameworks, such as community social control and procedural fairness, might help explain
the observed impacts of focused deterrence programs on crime. There is also a growing
body of literature suggesting that it is very difficult in practice to sustain these initiatives
over an extended time period. Beyond the cessation of Ceasefire in Boston noted earlier,
replication programs in Baltimore and Minneapolis unraveled rapidly after some encour-
aging initial crime control success stories (see Kennedy 2011). The Cincinnati Initiative to
Reduce Violence, however, has been able to institutionalize and sustain its focused
deterrence interventions through the establishment of a comprehensive organizational
structure and a governing board (Engel et al. 2011). Clearly, jurisdictions interested in
implementing focused deterrence strategies need to understand how to keep these programs
on track for the long-term.
References
Apel RJ, Nagin D (2011) General deterrence: a review of recent evidence. In: Wilson JQ, Petersilia J (eds)
Crime and public policy. Oxford University Press, New York, pp 411–436
Apel RJ, Sweeten G (2010) Propensity score matching in criminology and criminal justice. In: Piquero A,
Weisburd DL (eds) Handbook of quantitative criminology. Springer, New York, pp 543–562
Austin P, Grootendorst P, Anderson G (2007) A comparison of the ability of different propensity score
models to balance measured variables between treated and untreated subjects: a Monte Carlo study.
Stat Med 26:734–753
Berk R (2005) Knowing when to fold ‘em: an essay on evaluating the impact of Ceasefire, Compstat, and
Exile. Criminol Public Policy 4:451–466
Black D (1970) The production of crime rates. Am Sociol Rev 35:733–748
Blalock H (1979) Social statistics, 2nd edn. McGraw-Hill, New York
Blumstein A (1995) Youth violence, guns, and the illicit-drug industry. J Crim Law Criminol 86:10–36
Blumstein A, Cohen J, Nagin D (eds) (1978) Deterrence and incapacitation: estimating the effects of
criminal sanctions on crime rates. National Academy of Sciences, Washington, DC
Braga AA (2012) Getting deterrence right? Evaluation evidence and complementary crime control mech-
anisms. Criminol Public Policy 11:201–210
Braga AA, Weisburd DL (2012) The effects of focused deterrence strategies on crime: a systematic review
and meta-analysis of the empirical evidence. J Res Crime Delinq 49:323–358
Braga AA, Winship C (2006) Partnership, accountability, and innovation: clarifying Boston’s experience
with pulling levers. In: Weisburd DL, Braga AA (eds) Police innovation: contrasting perspectives.
Cambridge University Press, New York, pp 171–190
Braga AA, Kennedy DM, Waring E, Piehl AM (2001) Problem-oriented policing, deterrence, and youth
violence: an evaluation of Boston’s Operation Ceasefire. J Res Crime Delinq 38:195–225
Braga AA, Hureau DM, Winship C (2008a) Losing faith? Police, black churches, and the resurgence of
youth violence in Boston. Ohio State J Crim Law 6:141–172
Braga AA, Pierce G, McDevitt J, Bond BJ, Cronin S (2008b) The strategic prevention of gun violence
among gang-involved offenders. Justice Q 25:132–162
Butterfield F (1996) In Boston, nothing is something. The New York Times, November 21: A20
Caliendo M, Kopeinig S (2005) Some practical guidance for the implementation of propensity score
matching (discussion paper 1588). Institute for the Study of Labor, Bonn
136 J Quant Criminol (2014) 30:113–139
123
Campbell DT, Boruch RF (1975) Making the case for randomized assignment to treatment by considering
the alternatives. In: Bennett C, Lumsdaine A (eds) Evaluation and experiments: some critical issues in
assessing social programs. Academic Press, New York, pp 195–296
Cohen J, Ludwig J (2003) Policing crime guns. In: Ludwig J, Cook PJ (eds) Evaluating gun policy: effects
on crime and violence. Brookings Institution Press, Washington, DC, pp 217–239
Cook PJ (1980) Research in criminal deterrence: laying the groundwork for the second decade. In: Morris N,
Tonry M (eds) Crime and justice: an annual review of research, vol 2. University of Chicago Press,
Chicago, pp 211–268
Cook P, Laub J (2002) After the epidemic: recent trends in youth violence in the United States. In: Tonry M
(ed) Crime and justice: a review of research, vol 29. University of Chicago Press, Chicago, pp 1–38
Cook PJ, Ludwig J (2006) Aiming for evidence-based gun policy. J Policy Anal Manage 48:691–735
Corsaro N, McGarrell EF (2009) Testing a promising homicide reduction strategy: reassessing the impact of
the Indianapolis ‘‘pulling levers’’ intervention. J Exp Criminol 5:63–82
Corsaro N, Hunt ED, Hipple NK, McGarrell EF (2012) The impact of drug market pulling levers policing on
neighborhood violence: an evaluation of the High Point drug market intervention. Criminol Public
Policy 11:167–200
Dalton E (2002) Targeted crime reduction efforts in ten communities: lessons for the project safe neigh-
borhoods initiative. US Attorney’s Bull 50:16–25
Decker S (1996) Collective and normative features of gang violence. Justice Q 13:243–264
Decker S, Katz C, Webb V (2008) Understanding the black box of gang organization: implications for
involvement in violent crime, drug sales, and violent victimization. Crime Delinq 54:153–172
Dehejia RH, Wahba S (2002) Propensity score matching methods for nonexperimental causal studies. Rev
Econ Stat 84:151–161
DiPrete T, Gangl M (2004) Assessing bias in the estimation of causal effects: Rosenbaum bounds on
matching estimators and instrumental variables estimation with imperfect instruments. Sociol Meth-
odol 34:271–310
Durlauf S, Nagin D (2011) Imprisonment and crime: can both be reduced? Criminol Public Policy 10:13–54
Ellement JR (2007) 25 alleged Boston gang members charged with gun, drug offenses. The Boston Globe,
May 24, p A1
Engel RS, Skubak Tillyer M, Corsaro N (2011) Reducing gang violence using focused deterrence: evalu-
ating the cincinnati initiative to reduce violence (CIRV). Justice Q. doi:10.1080/07418825.
2011.619559
Fagan J (2002) Policing guns and youth violence. Future Child 12:133–151
Farrington D, Gottfredson D, Sherman L, Welsh B (2002) The Maryland scientific methods scale. In:
Sherman L, Farrington D, Welsh B, MacKenzie D (eds) Evidence-based crime prevention. Routledge,
London, pp 13–21
Gelman A (2005) Analysis of variance: why it is more important than ever. Ann Stat 33:1–53
Gibbs JP (1975) Crime, punishment, and deterrence. Elsevier, New York
Heckman J, Ichimura H, Todd P (1997) Matching as an econometric evaluation estimator: evidence from
evaluating a job training programme. Rev Econ Stud 64:605–654
Heckman J, LaLonde R, Smith J (1999) The economics and econometrics of active labor market programs.
In: Ashenfelter O, Card D (eds) Handbook of labor economics, vol 3. Elsevier, Amsterdam,
pp 1865–2097
Horney J, Marshall IH (1992) Risk perceptions among serious offenders: the role of crime and punishment.
Criminology 30:575–594
Hughes L, Short J (2005) Disputes involving gang members: micro-social contexts. Criminology 43:43–76
Imbens GW (2004) Nonparametric estimation of average treatment effects under exogeneity: a review. Rev
Econ Stat 86:4–29
Imbens GW, Wooldredge J (2009) Some recent developments in the econometrics of program evaluation.
J Econ Lit 47:5–86
Kennedy DM (1997) Pulling levers: chronic offenders, high-crime settings, and a theory of prevention.
Valparaiso Univ Law Rev 31:449–484
Kennedy DM (2011) Don’t shoot. Bloomsbury, New York
Kennedy DM, Piehl AM, Braga AA (1996) Youth violence in Boston: gun markets, serious youth offenders,
and a use-reduction strategy. Law Contemp Probl 59:147–196
Kennedy DM, Braga AA, Piehl AM (1997) The (un)known universe: mapping gangs and gang violence in
Boston. In: Weisburd D, McEwen JT (eds) Crime mapping and crime prevention. Criminal Justice
Press, Monsey, pp 219–262
Klein M (1993) Attempting gang control by suppression: the misuse of deterrence principles. Stud Crime
Crime Prev 2:88–111
J Quant Criminol (2014) 30:113–139 137
123
Klofas J, Hipple NK (2006) Crime incident reviews. Project safe neighborhoods: strategic interventions case
study 3. US Department of Justice, Washington, DC
Leuven E, Sianesi B (2003) PSMATCH2: Stata module to perform full Mahalanobis and propensity score
matching, common support graphing, and covariate imbalance testing. Available online: http://
ideas.repec.org/c/boc/bocode/s432001.html
Levitt S, Venkatesh S (2000) An economic analysis of a drug-selling gang’s finances. Q J Econ
115:755–789
Lipsey M, Wilson DB (2001) Practical meta-analysis. Applied social research methods series, vol 49. Sage,
Thousand Oaks
Long JS, Freese J (2006) Regression models for categorical dependent variables using Stata. StataCorp, LP,
College Station
Loughran T, Paternoster R, Piquero A, Pogarsky G (2011a) On ambiguity in perceptions of risk: implica-
tions for criminal decision making and deterrence. Criminology 49:1029–1061
Loughran T, Pogarsky G, Piquero A, Paternoster R (2011b) Re-examining the functional form of the
certainty effect in deterrence theory. Justice Q 29(5):712–741
Ludwig J (2005) Better gun enforcement, less crime. Criminol Public Policy 4:677–716
McGarrell EF, Chermak S, Weiss A, Wilson J (2001) Reducing firearms violence through directed police
patrol. Criminol Public Policy 1:119–148
McGarrell EF, Chermak S, Wilson J, Corsaro N (2006) Reducing homicide through a ‘lever-pulling’
strategy. Justice Q 23:214–229
Morenoff JD, Sampson RJ, Raudenbush SW (2001) Neighborhood inequality, collective efficacy, and the
spatial dynamics of urban violence. Criminology 39:517–559
Morgan SL, Winship C (2007) Counterfactuals and causal inference: methods and principals for social
research. Cambridge University Press, New York
Nagin D (1998) Criminal deterrence research at the outset of the twenty-first century. In: Tonry M (ed)
Crime and justice: a review of research, vol 23. University of Chicago Press, Chicago, pp 1–42
Papachristos A (2009) Murder by structure: dominance relations and the social structure of gang homicide.
Am J Soc 115:74–128
Papachristos A, Kirk D (2006) Neighborhood effects and street gang behavior. In: Short J (ed) Studying
youth gangs. Alta Mira, Landham, pp 63–84
Papachristos A, Meares T, Fagan J (2007) Attention felons: evaluating project safe neighborhoods in
Chicago. J Emp Legal Stud 4:223–272
Paternoster R (1987) The deterrent effect of the perceived certainty and severity of punishment: a review of
the evidence and issues. Justice Q 4:173–217
Piehl AM, Cooper SJ, Braga AA, Kennedy DM (2003) Testing for structural breaks in the evaluation of
programs. Rev Econ Stat 85:550–558
Rosenbaum P (2002) Observational studies, 2nd edn. Springer, New York
Rosenbaum P, Rubin D (1983) The central role of the propensity score in observational studies for causal
effects. Biometrika 70:41–55
Rosenbaum P, Rubin D (1985) Constructing a control group using multivariate matched sampling methods
that incorporate the propensity score. Am Stat 39:33–38
Rosenfeld R, Bray TM, Egley A (1999) Facilitating violence: a comparison of gang-motivated, gang-
affiliated, and nongang youth homicides. J Quant Criminol 15:495–516
Rosenfeld R, Fornango R, Baumer E (2005) Did Ceasefire, Compstat, and Exile reduce homicide? Criminol
Public Policy 4:419–450
Rossi PH, Lipsey M, Freeman H (2006) Evaluation: a systematic approach, 7th edn. Sage, Newbury Park
Rubin DB (1990) Formal modes of statistical inferences for causal effects. J Stat Plan Inference 25:279–292
Sampson RJ, Wilson WJ (1995) Toward a theory of race, crime, and urban inequality. In: Hagan J, Peterson
R (eds) Crime and inequality. Stanford University Press, Stanford, pp 37–56
Sampson RJ, Raudenbush SW, Earls F (1997) Neighborhoods and violent crime: a multilevel study of
collective efficacy. Science 277:918–924
Schneider VW, Wiersema B (1990) Limits and use of uniform crime reports. In: MacKenzie DL, Baunach
PJ, Roberg RR (eds) Measuring crime. State University of New York Press, Albany, pp 21–48
Seabrook J (2009) Don’t shoot: a radical approach to the problem of gang violence. The New Yorker, June
22, pp 32–39
Shadish W, Cook T, Campbell D (2002) Experimental and quasi-experimental designs for generalized
causal inference. Houghton Mifflin, Boston
Sherman LW, Rogan D (1995) Effects of gun seizures on gun violence: ‘hot spots’ patrol in Kansas City.
Justice Q 12:755–782
138 J Quant Criminol (2014) 30:113–139
123
Sherman LW, Gottfredson D, MacKenzie DL, Eck JE, Reuter P, Bushway S (1997) Preventing crime: what
works, what doesn’t, what’s promising. U.S. Department of Justice, National Institute of Justice,
Washington, DC
Singer JD, Willet JB (2003) Applied longitudinal data analysis: modeling change and event occurrence.
Oxford University Press, New York
Smith C (2012) The influence of gentrification on gang homicides in Chicago neighborhoods, 1994 to 2005.
Crime Delinq. doi:10.1177/0011128712446052
Smith J, Todd P (2005) Does matching overcome LaLonde’s critique of nonexperimental estimators?
J Econom 125:303–353
Tita G, Greenbaum R (2009) Crime, neighborhoods, and units of analysis: putting space in its place. In:
Weisburd D, Bernasco W, Bruinsma G (eds) Putting crime in its place. Springer, New York,
pp 145–170
Tita G, Radil S (2011) Spatializing the social networks of gangs to explore patterns of violence. J Quant
Criminol 27:521–545
Tita G, Riley J, Ridgeway G, Grammich C, Abrahamse A, Greenwood P (2004) Reducing gun violence:
results from an intervention in East Los Angeles. RAND Corporation, Santa Monica
Travis J (1998) Crime, justice, and public policy. Plenary presentation to the American Society of Crimi-
nology, (http://www.ojp.usdoj.gov/nij/speeches/asc.htm), November 1, Washington, DC
Weisburd D, Lum C, Petrosino A (2001) Does research design affect study outcomes in criminal justice?
Annals 578:50–70
Wellford CF, Pepper JV, Petrie CV (eds) (2005) Firearms and violence: a critical review. Committee to
improve research information and data on firearms. The National Academies Press, Washington, DC
Welsh BC, Peel ME, Farrington DP, Elffers H, Braga AA (2011) Research design influence on study
outcomes in crime and justice: a partial replication with public area surveillance. J Exp Criminol
7:183–198
Wilkinson L, Task Force on Statistical Inference (1999) Statistical methods in psychology journals:
guidelines and expectations. Am Psychol 54:594–604
Witkin G (1997) Sixteen silver bullets: smart ideas to fix the world. US News and World Report, December
29, p 67
Wright B, Caspi A, Moffitt T, Paternoster R (2004) Does the perceived risk of punishment deter criminally
prone individuals? Rational choice, self-control, and crime. J Res Crime Delinq 41:180–213
Zimring F (1968) Is gun control likely to reduce violent killings? Univ Chic Law Rev 35:21–37
Zimring F (1972) The medium is the message: Firearm caliber as a determinant of death from assault.
J Legal Stud 1:97–124
Zimring F, Hawkins G (1973) Deterrence: the legal threat in crime control. University of Chicago Press,
Chicago
J Quant Criminol (2014) 30:113–139 139
123
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U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
Gang Prosecution
Manual
July 2009
Copyright 2009 Institute for Intergovernmental Research®. All Rights Reserved.
U.S. Department of Justice
Office of Justice Programs
810 Seventh Street NW
Washington DC 20531
Eric H. Holder, Jr.
Attorney General
Laurie Robinson
Acting Assistant Attorney General/Principal Deputy Assistant Attorney General
Jeff Slowikowski
Acting Administrator
Office of Juvenile Justice and Delinquency Prevention
This document was prepared by the National Youth Gang Center under Cooperative
Agreement Number 2007‐JV‐FX‐0008 from the Office of Juvenile Justice and
Delinquency Prevention (OJJDP).
The Office of Juvenile Justice and Delinquency Prevention is a component of
the Office of Justice Programs, which also includes the Bureau of Justice
Assistance; the Bureau of Justice Statistics, the Community Capacity
Development Office; the National Institute of Justice; the Office for Victims of
Crime; and the Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking (SMART). Points of view or opinions in this
document are those of the authors and do not represent the official position or
policies of the U.S. Department of Justice.
Gang Prosecution Manual
Gang Prosecution Manual
July 2009
This document was developed by the National Youth Gang Center. The following
individuals are authors of various chapters of this document.
Mr. John Anderson, Assistant District Attorney, Orange County District Attorney’s
Office, Supervisor of the TARGET Gang Unit, Santa Ana, CA
Sergeant Mark Nye, Westminster Police Department, Westminster, CA
Mr. Ron Freitas, Chief Deputy District Attorney of the Homicide‐Gang Division, San
Joaquin County District Attorney’s Office, Stockton, CA
Mr. Jarrett Wolf, President, the Law Firm of Jarrett Wolf, former Assistant State
Attorney and DEA Agent in Miami, FL.
Gang Prosecution Manual
i Table of Contents
Table of Contents
Introduction …………………………………………………………………………………………………………………..1
Section 1: Investigating the Gang Case: Law Enforcement’s Impact on
Successful Prosecution ……………………………………………………………………………….4
Introduction ……………………………………………………………………………………………………. 5
Gang Member Identification and Documentation …………………………………………… 5
Legal Consideration in Obtaining Gang Records ……………………………………………. 7
Gang Books, School Yearbooks, and Other Resources …………………………………….. 9
Field Interview Cards …………………………………………………………………………………… 11
Crime and Incident Reports ………………………………………………………………………….. 13
Gang Databases: Storing and Retrieving Gang Records ……………………………….. 14
Gang Database Legal Considerations ……………………………………………………………. 16
Gang Search Warrants ………………………………………………………………………………….. 18
Use of Informants and the Need for an Informant Policy ……………………………… 20
Confidentiality Issues …………………………………………………………………………………… 22
Gang Search Warrant and Affidavit Language ……………………………………………… 22
Section 2: Gang Group Crime Theories of Liability and Investigation
Considerations: Why the Liability Net Gets Thrown Over So Many …………27
Introduction ………………………………………………………………………………………………….. 27
Group Crime Dangers …………………………………………………………………………………… 29
Teenage Group Crime Dangers …………………………………………………………………….. 31
Gang Group Crime Dangers …………………………………………………………………………. 31
Basic Concepts of Group Criminal Liability ………………………………………………….. 32
Investigation Considerations ………………………………………………………………………… 33
Extended Liability From Group Crime Participation…………………………………….. 40
Conclusion ……………………………………………………………………………………………………. 42
References …………………………………………………………………………………………………….. 42
Section 3: Filing the Gang Case …………………………………………………………………………………43
Introduction ………………………………………………………………………………………………….. 43
Preparing to File the Gang Case ……………………………………………………………………. 44
Directing Further Investigations …………………………………………………………………… 46
Juvenile or Adult Prosecution ………………………………………………………………………. 48
Gang Prosecution Manual
ii Table of Contents
Section 3: Filing the Gang Case (Continued)
Criminal Liability …………………………………………………………………………………………. 48
Aiding and Abetting …………………………………………………………………………………….. 49
Conspiracy ……………………………………………………………………………………………………. 51
Natural and Probable Consequences Liability ………………………………………………. 54
Theories Specific to Murder ………………………………………………………………………….. 56
The Felony Murder Rule ………………………………………………………………………………. 56
Provocative Act Murder ……………………………………………………………………………….. 57
Concurrent Causation …………………………………………………………………………………… 58
Conclusion ……………………………………………………………………………………………………. 59
Section 4: Presentation of the Case …………………………………………………………………………..60
Introduction ………………………………………………………………………………………………….. 60
Witnesses ……………………………………………………………………………………………………… 61
Gang Evidence ……………………………………………………………………………………………… 69
The Jurisprudence of Gang Prosecution ……………………………………………………….. 71
Litigating the Admissibility of Gang Evidence ……………………………………………… 76
Admissibility of Gang Expert Testimony ……………………………………………………… 78
Qualifying the Gang Expert ………………………………………………………………………….. 79
Jury Selection ………………………………………………………………………………………………… 82
Conclusion ……………………………………………………………………………………………………. 86
Section 5: Sentencing Issues in Gang Cases ………………………………………………………………88
Introduction ………………………………………………………………………………………………….. 88
Types of Crimes ……………………………………………………………………………………………. 89
Alternatives to Criminal Filings and Diversion Programs …………………………….. 90
Filing Decision ……………………………………………………………………………………………… 91
Method of Conviction …………………………………………………………………………………… 94
Probation Hearings …………………………………………………………………………………….. 100
Parole Considerations …………………………………………………………………………………. 100
Conclusion ………………………………………………………………………………………………….. 101
References …………………………………………………………………………………………………… 102
Exhibit 1: Superior Court of California, County of Orange, Advisement and
Waiver of Rights for a Felony Guilty Plea, F026‐412.6 (R10/04) ……………..103
Exhibit 2: Defendant’s Waiver of Constitutional Rights for Guilty Plea
to Misdemeanor, F0232‐330.11 (3/88) ………………………………………………………109
Exhibit 3: Attachment No. 1, Factual Basis for Plea of Guilty ………………………………..112
Exhibit 4: Adult, Orange County Probation Department, Gang Terms and
Conditions of Probation …………………………………………………………………………114
Gang Prosecution Manual
1 Introduction
Introduction
The National Youth Gang Center estimates that there were approximately
778,000 gang members and 27,000 gangs active in more than 3,550 jurisdictions served
by city and county law enforcement agencies in 2007.
Gangs remain a serious problem in the United States, and local prosecutors and
district attorneys play an important role in addressing gang‐related violence. The vast
majority of violent gang‐related crimes will be prosecuted at the local level by
prosecutors in agencies where budgets are tight and resources for training are often
minimal.
Gang‐related crimes are, by their very nature, more difficult to prosecute than
other sorts of crimes—full of interconnected relationships and complex dynamics
between rival gangs. Today’s gang member victim may be tomorrow’s perpetrator.
Witnesses and juries may be intimidated by the inherent and implied threat of violence
from a gang‐involved defendant. The awareness and sophistication of court employees
and judges in dealing with gangs vary from place to place. Further, successful
prosecution of a gang case may require expert testimony to help the jury understand
the complicated cultural issues that are foundational to gang‐related crime. Trying
gang‐related cases takes time, preparation, and knowledge.
For those reasons, this publication has been prepared to bring together
information on the basics of gang crime prosecution at the local level. This is a
workbook designed to help local prosecutors and investigators visualize and prepare
for every step of a gang‐related crime prosecution, from the initial crime scene
investigation to preparing and presenting the case and, finally, sentencing issues
specific to gang cases. This document has been prepared by working prosecutors and
investigators from states with very different legal requirements. They have years of
experience in dealing with the complexities of violent gang‐related crime. The intent of
this manual is to assist local prosecutors in holding gang‐involved offenders
accountable for their actions and, ultimately, guarding the community from gangs.
When a gang member has committed a violent act that has caused loss and pain to the
entire community, the goal of effective prosecution should be a finding by a judge that
protects the community and demonstrates an understanding of the negative toll taken
on the victims by these acts:
Gang Prosecution Manual
2 Introduction
“Everything I know about gangs tells me that gangs are dedicated to violence and
crime. And, while there may be a certain brotherhood, it is done only to
perpetuate whatever joy they get from drug abuse, the crimes they commit, the
people they hurt, and the people they bully . . . I really cannot find any reason why I
should not protect this community and keep Mr. Cortes off the street. He is one of
the links of the chain that goes from the criminality and the violence of gangs, to
our schools and to our community. This link, I intend to break . . . Mr. Cortes,
this Court hereby sentences you to 25 years in the state prison [for attempted
murder]. The court is departing from the guidelines to do so. I believe I have
valid legal reasons to do so. I do not think you have a clue. I do not know how
else, at this point, to teach you that you have done wrong.”
—The Honorable Maxine Cohen Lando, Circuit Judge, Miami‐Dade
County, Florida, State of Florida v. David Cortes, March 29, 1999.
Section 1: Investigating the Gang Case: Law Enforcement’s Impact on Successful
Prosecution
Law enforcement’s preparation for gang‐related crimes is the crux of successful
prosecution. This section includes information on every aspect of law
enforcement/prosecution cooperation, including police documentation of gang
affiliation and activity, legal considerations in obtaining gang records, resources that
can assist in documenting gang affiliation on the part of defendants, gang databases,
search warrants, and the use of informants. It is designed for use by both prosecutors
and law enforcement agencies. A sample gang search warrant and affidavit are also
provided.
Section 2: Gang Group Crime Theories of Liability and Investigation Considerations:
Why the Liability Net Gets Thrown Over So Many
In most instances of gang‐related crime, a complex dynamic of connections exists
between suspects and victims. The group dynamics of gang‐related crimes and
conspiracy liability are discussed in this section, along with ways that investigators can
respond to crime scenes with multiple participants, gang expert testimony related to
group crimes, and dealing with aiders and abettors to gang‐related crimes.
Gang Prosecution Manual
3 Introduction
Section 3: Filing the Gang Case
In many ways, gang cases are likely to be the most complex cases filed by a
prosecutor. This section describes preparation for filing the case, further investigation
that may be required, discussion as to whether cases should be filed in juvenile or adult
court, decisions about filing against accomplices/accessories using theories of liability,
and filing issues specific to murder trials.
Section 4: Presentation of the Case
Once the case actually gets to trial, a host of unforeseen issues can arise. This
section deals with anticipating the challenges when presenting gang cases, including
witness issues, presentation of gang evidence, litigating the admissibility of gang
evidence, dealing with gang expert testimony, and jury selection issues specifically
related to gangs.
Section 5: Sentencing Issues in Gang Cases
From the time the case is filed, sentencing issues should be paramount in the
mind of the prosecutor. This section addresses sentencing issues during filing, such as
misdemeanors versus felonies, alternatives to criminal filings, how filing in juvenile or
adult court may affect sentencing, sentencing options for gang offenders, conditions of
probation that are appropriate for criminal street gang members, and parole
considerations.
Gang Prosecution Manual
4 Section 1. Investigating the Gang Case
Section 1.
Investigating the Gang Case:
Law Enforcement’s Impact on
Successful Prosecution
By
John Anderson, Assistant District Attorney
Orange County District Attorney’s Office
Supervisor of the TARGET Gang Unit
Santa Ana, California
and
Mark Nye, Sergeant
Westminster Police Department
Westminster, California
Gang Prosecution Manual
5 Section 1. Investigating the Gang Case
INTRODUCTION
Successful gang prosecutions are a result of the combined efforts of the district
attorney’s office and the local police gang unit investigators and/or robbery/homicide
investigators handling the investigation. The strength of a gang case rests almost solely
on the strength of the available gang evidence and the credibility of the gang expert.
Experienced gang investigators who testify as court‐recognized experts base their
expertise on their knowledge of area gangs (and their enemy counterparts) and gang
methodology, information provided by numerous street contacts, and other gang
records that are properly documented and cataloged. Consistent and reliable
recordkeeping, therefore, is essential for the successful operation of the gang unit and
its future prosecutorial efforts.
GANG MEMBER IDENTIFICATION
AND DOCUMENTATION
Without proper documentation of gang contacts, expert opinions lack a basis of
fact that defense attorneys may attack, making it difficult for juries to render verdicts.
Therefore, gang unit investigators (experts) must have hands‐on street knowledge of
jurisdictional gangs and must develop and maintain up‐to‐date gang records in the
form of field interview cards, police reports, probation and parole records, court
adjudications of prosecutorial efforts, and cataloged photographs of gang members,
tattoos, and graffiti.
Gang investigators conduct regular street patrols; provide probation, parole, and
search warrant services at gang members’ residences; and make arrests for various
violations of law. All of these contacts need to be documented and cataloged in an in‐
house database, and, when available, state or countywide databases, for other
departments to utilize.
Patrol officers (first responders) spend a great deal of time on the street; more
than many gang, narcotic, or other detective units. These patrol officers need to be
tapped for their knowledge and trained in the proper collection and dissemination of
gang information. Many patrol officers have regular contacts with gang members in
their local areas. Patrol officers, if trained in proper collection of gang documents (field
interview cards or crime and incident reports), can be an invaluable source to the gang
Gang Prosecution Manual
6 Section 1. Investigating the Gang Case
unit. The more “eyes and ears” the gang unit has on the street, the more information it
will be able to collect, maintain, and store in its gang/intelligence files.
Gang investigators first and foremost must be familiar with the gang dynamics
in their cities and surrounding jurisdictions. They need to know the nuances of each
gang; i.e., its racial makeup, territory or lack thereof, affiliate gangs, enemy gangs, use
of tattoos, graffiti, clothing, and its criminal propensities or methods of operation.
Gang investigators need to know the history of the various gangs indigenous to or
otherwise active in their jurisdictions. They need to familiarize themselves with the
dynamics of the gangs, including but not limited to their membership size, territory,
local hangouts, rivalries, and types of crimes committed, as well as the identification
and personal and criminal backgrounds of individual members.
Before gang investigators collect, document, and catalog gang information, it is
important that they and their agency have policies and procedures in place regarding
documentation, collection, storage, and use of such records. Local, state, and federal
restrictions or guidelines on maintaining gang and intelligence files must be upheld for
the successful operation of the unit and its prosecutorial efforts. Gang unit supervisors
and their investigators must be well‐versed in these policies and procedures to ensure
consistency in records and avoid claims of arbitrary enforcement. Gang units should
include the entire department in the efficient and ethical collection of gang (documents)
records. Therefore, gang investigators should take the time to conduct regular
briefings/trainings for patrol officers, detectives, and others in the department
responsible for the collection of gang documents. New officer orientation with gang
unit detectives is also a good measure to ensure the proper collection of gang
information.
Efficient and up‐to‐date documentation of gangs and gang members is critical for
gang cases and is the key to the successful prosecution of gang‐related cases.
Documentation lends credence to the allegation of gang membership, status, and street
presence and provides motives behind gang‐related attacks or other gang behavior.
Many patrol officers and even gang investigators sometimes have a strong knowledge
of individual gang members with whom they have frequent contact, but because of the
frequency of these contacts, these persons are often not field‐interviewed or the contacts
are not otherwise documented. Because of this lack of documentation, in court a case
may lack critical documentary evidence of gang membership. All contacts with gangs
or gang members should, therefore, be documented or memorialized in some fashion.
Gang Prosecution Manual
7 Section 1. Investigating the Gang Case
Hispanic Gang Graffiti on a Resident’s Van
LEGAL CONSIDERATION IN
OBTAINING GANG RECORDS
Good records detailing how gang information was obtained are important. The
usefulness of gang records depends on the constitutionally permissible procurement of
the information in the records. Information from suspected gang members or pictures
taken of them in the field or at the police station may be obtained by consent or may be
derived from another legally permissible avenue, such as a probation search, a lawful
arrest, or a lawful investigatory detention. It is important to thoroughly document a
gang member’s consent in cases of consensual encounters. The documentation of
consent is useful to survive a future challenge of lack of consent when the records are
used in court. Absent consent, there must be a lawful justification for detaining a gang
member to obtain gang‐related information from the individual.
It is not against the law to be a gang member, nor can a law outlawing gang
membership (by itself) withstand a constitutional challenge. Laws outlawing certain
gang behavior usually focus on the active participation of an individual in the criminal
objectives of a criminal street gang. Police may not stop gang members against their
Gang Prosecution Manual
8 Section 1. Investigating the Gang Case
will to interrogate and/or photograph them merely for belonging to a gang. The
United States Supreme Court has stated that the guarantees of the Fourth Amendment
do not allow stopping and demanding identification or information, or taking
photographs from individuals without any specific basis for believing they are involved
in criminal activity, Terry v. Ohio, 392 U.S. 1 (1968) and Brown v. Texas, 443 U.S. 47
(1979).
To justify an investigative stop or detention, the circumstances known or
apparent to the officer must include specific and articulable facts causing the officer to
suspect that (1) some activity relating to a crime has taken place or is occurring or about
to occur and (2) the person the officer intends to stop or detain is involved in that
activity, Terry v. Ohio, 392 U.S. 1, 21, supra. Further, evidence obtained during an illegal
detention or arrest and evidence that is derived from initially illegally obtained
evidence may be suppressed, Wong Sun v. United States, 371 U.S. 471 (1963). Derivative
evidence, such as a photo identification of a suspect obtained from the use of evidence
that was illegally obtained by the police explicitly for use in further criminal
investigations (e.g., photos for gang books or field interview cards for gang databases),
may be suppressed in court.
A Gathering of White-Supremacist Skinhead Gang Members
Gang Prosecution Manual
9 Section I. Investigating the Gang Case
GANG BOOKS, SCHOOL YEARBOOKS,
AND OTHER RESOURCES
Gang files or books should be gang‐specific and include evidence showing the
existence, territory, and dynamics of the gangs in the jurisdiction. They should,
therefore, include photos of gang graffiti and its location; examples of various names
and symbols used to identify the gang; photos of various tattoos worn by individual
members affiliated with the gang; and group photos and/or photos of gang members
throwing hand signs, holding firearms or other weapons, or dressed in obvious gang
attire or having other indications of gang affiliation, including specific styles and colors
of clothes and numbered or lettered jerseys associated with a particular gang (e.g., “AB”
or “12” for Asian Boyz or “22” [22nd letter of the alphabet] for V‐Boys—both Asian
street gangs in Orange County, California).
This documentation should also include examples of personal items, such as
letters to and from various members in correctional facilities; other letters with gang
reference; schoolwork; and phone books with reference to individual members’ names,
monikers, and phone numbers. It is also important to document and catalog any and
all examples of disrespect to rival gangs, newspaper articles of gang homicides or other
felonious assaults, photos of crossed‐out graffiti in public places, and personal items
with negative references to rivals with names crossed out. All of these aforementioned
items should be properly cataloged by gang name, with the date and time they were
discovered, the locations where collected, and the names of the individuals, officers,
deputies, or agents who collected the cataloged items.
Asian Boyz (Asian Gang) Hand Sign
The V-Boys (Asian Gang) Tattoo
Gang Prosecution Manual
10 Section 1. Investigating the Gang Case
Gang books serve as a way to collect and maintain gang records and/or
photographs of individual members. They should include photographs of all known
gang members from a particular gang identified by self‐admission or through other
reliable sources. The books are used for possible suspect identification when the
circumstances of an offense indicate it was committed by a member or members of a
particular gang. Gang books tend to change or evolve over time as new members join
the gang, gang members are killed off by rivals, or other members leave the jurisdiction
or are sentenced to prison for long‐term commitments. The gang books need to reflect
these changes if they are to be used effectively in identifying, apprehending, and
prosecuting gang members. Without continual updating, gang books become less
effective for investigative, enforcement, and prosecutorial efforts. It is also critical to
keep a record of what a gang book looked like at the time it was shown to a witness or
victim (whether there was an identification or not) for use in court. Investigators
should photocopy any and all photos shown to witnesses or victims and include them
in the case file along with any admonitions given.
Another method used for identification is the arrangement of gang photos (in a
gang book) in a multiple “six‐pack” organizational scheme. If identification is made
from a six‐pack, not all photos from the gang book need to be copied and entered into
the case file, only those shown in the lineup or series of lineups. This also protects the
integrity and confidentiality of the gang book in its entirety.
School yearbooks from elementary schools, middle schools, and high schools in
the jurisdiction are also a great tool to utilize in the identification of gang offenders.
Given the youthful nature of most gang offenders, the yearbooks are an invaluable aid
in the identification process when the perpetrator is known to the victim or witness
from school and, particularly, if no other photos exist. Gang investigators should,
therefore, regularly obtain up‐to‐date yearbooks to have at their disposal and should
also maintain a close working relationship with school officials or resource officers
regarding specific gang activity and/or membership on campus.
Photos showing gang members either alone or posing with other known or
suspected gang members that are seized during the service of search warrants or
probation and parole searches or that are otherwise lawfully obtained during criminal
investigations should also be maintained and cataloged by gang and date.
Gang Prosecution Manual
11 Section 1. Investigating the Gang Case
V-Boys (Asian Gang) Dressed Up for Party Flashing Hand Signs
FIELD INTERVIEW CARDS
Gang records and/or databases should also be gang‐member‐specific. They
should evidence an individual’s specific affiliation and allegiance to his gang. These
records should include original field interview (FI) cards that were completed by patrol
officers, detectives, and gang investigators.
Information from the FI cards should then be entered into a local database to
include the member’s name, physical description, address, phone numbers (home,
work, and cellular), scars, marks or tattoos, vehicles, and associate members with whom
the individual has been in contact. Frequently, a fingerprint of a gang member is placed
on the back of an FI card to ensure that there is no question later regarding the identity
of the individual contacted. The documentation should also include the reason for the
contact, such as reasonable suspicion, probable cause, or consensual encounter. A brief
recitation of the facts surrounding the contact can be used later to refresh officer
recollections and for suppression motions and impeaching inconsistent defendant
testimony. Also included on the FI card should be the gang member’s status in the
Gang Prosecution Manual
12 Section 1. Investigating the Gang Case
gang and how it is known—not just that the member belongs to a gang but how that
fact was established (self‐admission, tattoos, clothing, or involvement with other self‐
admitted members in gang‐related activity). Whatever the basis, it needs to be
documented. Any self‐admission should be in quotes: “I claim West Trece,” or “I was
jumped into the Orphans,” or “I kick it with Asian Boyz.”
Female Racist Skinheads
All gang‐related FI cards should be sent to the gang unit or other unit
responsible for keeping records on gang members or gang crime. Some departments
send all FI cards to the records bureau and may eventually forward them to the gang
unit. To be most effective, FI cards need to be promptly sent to the gang unit
investigators. Therefore, an NCR (ticket format) FI card is an effective method of
disseminating the FI cards in a timely manner. A three‐part form can be utilized,
wherein one copy is disseminated to and maintained by the gang unit, one copy is
given to the records bureau for departmentwide recordkeeping, and the last copy is
Gang Prosecution Manual
13 Section 1. Investigating the Gang Case
provided to the regular detective bureau and reviewed by all members of the division.
All members of the department (patrol, detectives, gang unit, etc.) should be involved
in the process of completing FI cards and ensuring that they are disseminated
accordingly to ensure effective law enforcement and investigative efforts.
There should also be a policy or procedure in place that outlines the
circumstances in which FI cards may or should be completed. Law enforcement‐
generated gang member photographs frequently accompany FI cards or other official
documents of the police department (gang notifications—California STEP Act notices
explained below). Information on the back of an FI card or other document should,
therefore, include a photo consent signature line. The photo should also include the
date and time it was taken and under what circumstances (e.g., during a detention,
following an arrest, by consent). Photos taken without legal justification are subject to
exclusion from evidence in court, and identifications from illegally obtained photos are
subject to suppression. In court, identifications must then be proven by the prosecution
to be the independent product of the witness’s recollection and not tainted by a
suppressed photo used in the out‐of‐court identification process.
CRIME AND INCIDENT REPORTS
Any report documenting a gang member’s criminal activity or in which he or she
is identified as the victim of a gang‐related crime should be maintained and cataloged
by individual member, gang, and date.
In addition to police and incident reports, police and probation and parole
officers serve notices on gang members of the penalties for active participation in a
criminal street gang under the California Street Terrorism Enforcement and Prevention
(STEP) Act. The notice informs a gang member that the police, probation or parole
officers, or the courts have determined that the recipient is an active participant in the
street gang and that continued participation may result in criminal prosecution,
including enhanced penalties (sentences) for gang‐related criminal violations. A copy
of this notice, or “proof of service,” is kept as proof that the gang member received the
notice. A juvenile offender’s parents are also given a copy of the form and are notified
of their child’s gang membership or participation. The proof of service usually includes
the same information as the FI card, with an emphasis on gang activity, and is often
accompanied by a photo of the gang member who was served with the notice. The FI
card can include the STEP information on the reverse side. The STEP notice includes
Gang Prosecution Manual
14 Section 1. Investigating the Gang Case
the gang member’s name, the name of his gang, and the fact that his gang is a criminal
street gang pursuant to Section 186.22 et al. of the California Penal Code. This notice
also outlines the related 33 criminal offenses that define criminal gang activity. There is
a signature line for the gang member to sign and date indicating that he/she has read
and understands the nature of the information in the act. These documents should be
maintained and cataloged in the same manner as the other gang records previously
mentioned.
“White Power” Tattoos
GANG DATABASES: STORING AND
RETRIEVING GANG RECORDS
The backbone of any successful gang unit is the strength of its intelligence files or
gang records. Gang unit investigators should not only contribute their gang
intelligence information to regional gang databases, to be shared with other law
enforcement agencies, but should also develop and maintain their own in‐house
records, in case regional databases “crash” or are otherwise unavailable because of
updates or repair. Regional databases typically offer thousands of records of gangs and
gang members from many jurisdictional areas where authorized users can read and
update files, download and retrieve photos, and utilize the system to further their
investigations. Many of these databases contain gang members’ names, addresses,
vehicles, and probation and parole status and have a wide range of search capabilities.
Gang Prosecution Manual
15 Section 1. Investigating the Gang Case
An in‐house database should be designed as a system for collecting, analyzing,
and storing information that qualifies as criminal intelligence and should allow only
limited dissemination and use of the intelligence to enhance public safety. Gang unit
investigators need to preserve the integrity of the system by keeping it secure from
others who have not been authorized or lack responsibility for maintenance of such
files. The constitutional protection of privacy of individuals (whose information is
listed in the system) must be followed and a purging system must be adhered to for the
credibility and integrity of the files. There should also be a policy and procedure
governing access to the system and for determining what information may be entered
and maintained. This procedure must follow applicable federal and state laws.
The in‐house database should allow the authorized user to enter and retrieve
information on the gang’s history, individual members, monikers, addresses, phone
numbers, vehicle information, tattoos, marks or scars, and specific incident or crime
reports. The in‐house database is an invaluable tool that can provide instant access to
up‐to‐date information on gang membership, expedite the investigation process, and
lead to successful prosecution of gang cases.
White-Supremacist Tattoos
Gang Prosecution Manual
16 Section 1. Investigating the Gang Case
GANG DATABASE LEGAL CONSIDERATIONS
As noted above, the United States Constitution prohibits criminalizing mere
membership in an organization (even ones with an apparent criminal nature), Scales v.
United States, 367 U.S. 203, 223 (1961). However, associating with members of an
organization and performing acts that carry out criminal objects of the organization
may be criminalized. Most state constitutions have similar associational protections. It
is important to note that while states may not allow for less constitutional protection
than is guaranteed by the federal constitution, the states may afford individuals more
protection. The usual attack on intelligence files is that the databases are targeting
groups not engaged in criminal behavior or associating an individual with a group
whose members engage in criminal acts.
Citizens have a right to be free from governmental intrusion, Griswold v.
Connecticut, 381 U.S. 479 (1965); Berger v. New York, 388 U.S. 41 (1967); and Katz v. United
States, 389 U.S. 347 (1967). On the other hand, law enforcement has a legitimate interest
in monitoring individuals and groups that engage in criminal group behavior. The
process of collecting evidence on these individuals and groups, however, creates a
tension between the need of society to be protected by law enforcement and the privacy
expectations of individuals.
As a result of these competing interests, in 1968, the United States Congress
passed the Omnibus Crime Control and Safe Streets Act, which attempted to recognize
the need for intelligence databases and the right to privacy. The act resulted in the
passage of the Code of Federal Regulations, Title 28, Part 23 (28 CFR Part 23), which
outlines the requirements for entering information about an individual or a group into
an intelligence system and purging the data from such a system. While the regulation
was designed for multiple jurisdictional intelligence databases, it is an excellent guide
for individual police departments as well because the regulation balances law
enforcement’s intelligence needs and individual privacy requirements.
Criminal intelligence information is defined in 28 CFR Part 23, Section 23.3(b)(3),
as data which has been evaluated to determine that it:
(i) Is relevant to the identification of and the criminal activity engaged
in by an individual who or an organization which is reasonably
suspected of involvement in criminal activity.
(ii) Meets criminal intelligence system submission criteria.
Gang Prosecution Manual
17 Section 1. Investigating the Gang Case
The submission criteria (the basis for entry into an intelligence database) are
delineated in 28 CFR Part 23, Section 23.20(a), (b), (c), and (d), and include the following:
(1) A reasonable suspicion (an abstract term that depends on the facts of
particular situations) that an individual or organization is involved
in criminal activity.
(2) Prospective information to be entered is relevant to the criminal
activity.
(3) Information does not include information about political, religious,
or social views, associations, or activities except where such
information relates directly to the criminal activity that is the basis
for focusing on the individual or group.
(4) Information was not obtained in violation of any federal, state, or
local law or ordinance.
(5) Information establishes sufficient facts to give a trained law
enforcement or criminal investigative agency officer, investigator, or
employee a basis to believe that an individual or organization is
involved in a definable criminal activity or enterprise.
Under the guidelines in 28 CFR Part 23, Section (b)(6), information in an
intelligence database must be evaluated for its relevance and importance at least every
five years. Information not in compliance with the submission requirements should be
purged, even if it is discovered to be noncompliant before five years. No information
from the database should be disseminated without a legitimate law enforcement reason,
such as a criminal case being filed against a suspect with information in the database.
Juvenile Hispanic Gang Members
Gang Prosecution Manual
18 Section 1. Investigating the Gang Case
GANG SEARCH WARRANTS
Investigations in serious gang offenses frequently include obtaining a search
warrant seeking, among other things, evidence of the suspect’s gang membership.
Gang evidence is invaluable in helping to explain the motivation for the commission of
some gang crimes and is helpful in identifying the suspects by establishing, for
example, membership in a gang rival to the victim’s gang. There is no such thing as too
much gang evidence, even in cases of clearly gang‐motivated crime.
Gang dynamics frequently allow for search warrants permitting the searching of
multiple locations. The most basic element of a gang is that it is a group that perceives
itself as a group and acts as a group during the perpetration of delinquent or criminal
offenses, hiding the instrumentalities or fruits of such offenses. Given the group
dynamics and group criminal liability involved in many gang‐related offenses, criminal
investigations focus on many suspects in gang cases. The mere existence of multiple
suspects normally allows for a search warrant for multiple locations. Gang practices of
hiding evidence or instrumentalities of crimes for fellow gang members also afford
more possible locations to be searched in gang cases.
An affidavit in a gang search warrant requires all of the care and content of a
non‐gang search warrant and much more. The affidavit in a gang search warrant
includes the following necessary components:
(1) The affiant’s identity and training, education, experience, and
expertise relating to the existence and activities of street gangs.
(2) The affiant’s personal observations and information from other
persons and sources relevant to establishing probable cause.
(3) A statement of the facts justifying the affiant’s belief that the
information included in the affidavit from other sources is accurate
and reliable.
(4) A conclusion with the opinion that based on the affiant’s training and
experience and the facts in the affidavit, the items sought will be
found at the requested locations to be searched.
Gang Prosecution Manual
19 Section 1. Investigating the Gang Case
(5) Specific opinions to establish that:
(a) The warrant affidavit’s probable cause to believe the
suspect gang exists,
(b) The suspects are members of that gang, and
(c) The crime was done for a gang‐related purpose.
(6) Facts regarding the suspect’s membership in the gang as
documented in FI cards, police reports, or any other documents or
photographs need to be spelled out in detail in the affidavit.
(7) An expert opinion explaining gang dynamics—such as passing
evidence, instrumentalities, or fruits of a crime among fellow gang
members—that allows for the search of multiple locations or is useful
in overcoming staleness, if much time has passed since the
commission of the crime.
In a typical gang‐related search warrant, a gang investigator should seek items of
evidence to prove that the underlying crime occurred, as well as instrumentalities or
fruits of the committed crime. Additional items would include evidence of street gang
membership, such as documents, photos, drawings, writings, objects, graffiti depicting
the named suspects in the case or gang or gang member names, initials, logos,
monikers, or any newspaper clippings referencing the crime under investigation.
(Examples of language for the affidavit in a gang search warrant and the language for
the warrant itself are found in the “Gang Search Warrant and Affidavit Language”
section of this document.) Of course, the investigator also must request permission to
search for any articles of personal property tending to establish dominion and control
over the premises and/or automobile(s) to be searched.
Gang Prosecution Manual
20 Section 1. Investigating the Gang Case
Hispanic Gang Tattoos
For a number of reasons, it is important to analyze and catalog the items seized
in a “gang warrant” following the service of the warrant. First, it allows the magistrate
who approved the warrant to determine that only items authorized in the warrant were
seized. Second, although it is a tedious task, all of the seized letters need to be read,
seized film developed, and seized tapes listened to, because their value depends on
their content. Finally, a detailed inventory itemizing the evidence should be prepared
for use in the instant case and for future use. Such an inventory allows for easy
retrieval and should also be included in the gang intelligence files.
USE OF INFORMANTS AND THE NEED
FOR AN INFORMANT POLICY
“It takes one to know one” is the age‐old premise of using CIs (cooperating
individuals or confidential informants) in criminal investigations. Cooperating
individuals is the preferred reference to individuals who cooperate with the police,
because the definition is more expansive and recognizes that great care must be taken
when one is using the information from a cooperating individual. A cooperating
individual is any person who knowingly provides information to law enforcement
related to another’s criminal activity, whose motivation for doing so is other than that of
an uninvolved witness who is a victim or private citizen primarily acting through a
sense of civic responsibility, and who, as a general rule but not necessarily, expects
some sort of personal benefit or advantage or the same for another individual. A
Gang Prosecution Manual
21 Section 1. Investigating the Gang Case
benefit is usually financial or reduced punishment or some other favorable treatment
given in exchange for the information.
Typical CIs in gang cases include mercenaries (paid informants), gang members
cooperating to obtain leniency in another case, codefendants, or friends not involved in
the present crime. Cooperation covers a range of possibilities, including (among other
things) making tape‐recorded telephone calls, supplying information regarding the
suspects of a crime or their present whereabouts, wearing a recording device while
attending a meeting of gang members, recapturing stolen property for the police,
and/or testifying.
While the benefits of CI‐supplied information can be enormous, CIs should be
used with great caution. Juries do not like “snitches.” Police and prosecutors should
carefully log all benefits conferred on a CI during an investigation and disclose the
benefits before trial to the defense. Such benefits are viewed legally as motivation for a
CI to favor law enforcement while testifying. Great care must also be given to
disclosing to the defense any exculpatory Brady material that might be discovered as a
result of the CI’s cooperation, Brady v. Maryland, 373 U.S. 83 (1963).
CIs should only be used after a written agreement is signed that fully discloses
the agreement between the CI and the police (in conjunction with the prosecution).
Police should also maintain a log of all supervision of and direction given to a CI and
document the performance of the CI, both good and bad. It is critical to present the CI
in the most accurate light possible to avoid the appearance that the police and
prosecution are hiding things.
Juveniles should not be used as CIs absent extraordinary (usually life‐or‐death)
circumstances. Use of juveniles is normally highly restricted by law. In California, for
example, no juvenile can be used as a CI without authorization from the juvenile court
following a hearing on the matter. As a practical matter, juveniles are never used
because of the showing necessary for the juvenile court’s authorization. Restrictions
also frequently exist regarding the use of probationers and parolees. Acting as a CI and
being around criminal behavior and characters are viewed as inconsistent with the
reformative nature of probation or parole.
Gang Prosecution Manual
22 Section 1. Investigating the Gang Case
CONFIDENTIALITY ISSUES
Juvenile Court Records
It is becoming increasingly easier to obtain juvenile court records. Throughout
the 1990s, efforts were made to distinguish less serious juvenile offenders from serious
and violent recidivist juvenile offenders. More juveniles are now remanded to adult
court for trial, which means the court proceedings and records are open to the public.
In addition, many states now allow for open juvenile hearings on alleged offenders who
are over a certain age or are accused of committing a serious or violent felony offense.
Since 2000 in California, juvenile records evidencing adjudication for a serious or
violent felony offense may never be sealed and are open to public inspection.
Typically, juvenile records are available to the prosecution in new cases against a
specific juvenile offender. Juvenile records, however, are also useful in cases besides
the specific offender’s case in jurisdictions that require the prosecution to establish that
a gang has committed a certain number of predicate offenses. Given the young age of
many gang member offenders, juvenile records are frequently helpful in showing the
required predicate offenses committed by juvenile members of the gang. At times,
there are no adult convictions available, necessitating the use of juvenile adjudication
records. Occasionally, a court order is necessary to inspect or copy records of a juvenile
gang member for a case other than his own.
GANG SEARCH WARRANT AND
AFFIDAVIT LANGUAGE
Gang Paraphernalia Language
Search Warrant Description
Any evidence of street gang membership or affiliation with any street gang, said
paraphernalia to include, but not limited to, any reference to XXXXX; said items
to include any (color used by specific gang) bandanas, drawings or miscellaneous
writings, or objects, or graffiti depicting gang members’ names, initials, logos,
monikers, slogans, or containing mention of street gang membership affiliation,
Gang Prosecution Manual
23 Section 1. Investigating the Gang Case
activity, or identity; any paintings, drawings, photographs or photograph albums
depicting persons, vehicles, weapons, or locations which may appear upon
observation to be relevant on the question of gang membership or association, or
which may depict items sought and/or believed to be evidence in the case being
investigated with this warrant, or which may depict evidence of any criminal
activity; any newspaper clippings tending to relate details or reference to any
crime or crimes of violence; and any address books, lists of, or single references to,
addresses or telephone numbers of persons who may later be determined to belong
to or be affiliated with any street gangs.
Affidavit Language to Justify Seizure of Gang Paraphernalia
I request permission to seize any evidence of street gang membership or affiliation
with any street gang, said paraphernalia to include, but not limited to, any
reference to XXXXX; said items to include any drawings or miscellaneous
writings, or objects, or graffiti depicting gang members’ names, initials, logos,
monikers, slogans, or containing mention of street gang membership affiliation,
activity, or identity, as it is my experience that most street gang members are
known by street names or monikers to their fellow gang members, and that they
frequently write their names or monikers of their associates on walls, furniture,
miscellaneous items, or papers, both within and on their residences, and within
and on their vehicles; any paintings, drawings, photographs or photograph
albums depicting persons, vehicles, weapons, or locations which may appear upon
observation to be relevant on the question of gang membership or association, or
which may depict items sought and/or believed to be evidence in the case being
investigated with this warrant, or which may depict evidence of any criminal
activity, as it is my experience that most gang members keep photographs and
photograph albums, in which are depicted (1) fellow gang members who are
posing and giving hand gang signs that indicate gang identity or affiliation, (2)
gang members or associates posing with weapons, particularly firearms that are
often used for criminal activities, (3) gang members or associates posing beside
vehicles that are occasionally used during the commission of crimes, and (4) gang
members or associates posing at locations that are known to be specific gang
hangouts; any newspaper clippings tending to relate details or reference to any
crime or crimes of violence, as it is my experience that gang members occasionally
maintain scrapbooks or newspaper articles that describe crimes committed by or
against their gang; and any address books, lists of, or single reference to, address
or telephone numbers of persons who may later be determined to belong to or be
affiliated with any street gangs, since it is my experience that gang members
Gang Prosecution Manual
24 Section 1. Investigating the Gang Case
frequently maintain the current phone numbers or addresses of fellow gang
members whom they associate with.
It is my opinion that evidence of gang membership or affiliation with any street
gang is important, as it may suggest motive for the commission of the crimes, in
the instant case, and it may provide evidence which tends to identify other
persons who may have knowledge of or be involved in the commission of the
crimes in the instant case, or it may tend to corroborate information given by
other witnesses.
I believe that these are not the types of items normally disposed of after the
commission of a crime and that they will, therefore, likely still be found in the
locations or on the persons to be searched.
Dominion and Control Language
Search Warrant Description
Any articles or personal property tending to establish the identity of persons who
have dominion and control over the premises, automobiles, or items to be seized,
consisting of rent receipts, utility company receipts, miscellaneous addressed
mail, personal letters, personal identification, keys, photographs, vehicle titles,
and vehicle registration slips.
Affidavit Language to Justify
Seizure of Dominion and Control Evidence
I request permission to seize any articles of personal property tending to establish
the identity of persons who have dominion and control over the premises,
automobiles, or items to be seized, consisting of rent receipts, utility company
receipts, miscellaneous addressed mail, personal letters, personal identification,
keys, photographs, vehicle titles, and vehicle registration slips.
I believe that all of these items will tend to connect the premises, persons,
locations, and vehicles to be searched with the items to be seized and the case
being investigated. It is my experience that these types of items are usually
present at the types of locations sought to be searched in this warrant, and I
Gang Prosecution Manual
25 Section 1. Investigating the Gang Case
believe that these items are not the type normally disposed of and can, therefore, be
found at the locations to be searched.
Affidavit Language to Establish Relevance of Gang Evidence
(overcoming staleness with the dynamic of guns and evidence being passed among
fellow gang members)
Based upon all of the above, the attached exhibits, and my expertise on gangs, I
have the following opinions regarding this case:
(1) That there is a longstanding and ongoing war between
members of the XXXXX and the XXXXX and that this war
has involved many acts of violence on both sides.
(2) That I personally know that the XXXXX are a close‐knit group
and that it is not uncommon for many of the members to be
involved in related acts of violence.
(3) That when an ongoing war situation involving many separate
members of the same gang exists, it is not uncommon for the
violent members at the central core of the gang to associate
with each other, and to plan together aggressive acts and/or
acts of violent retaliation to be perpetrated by a few members of
this violent central cadre.
(4) That the pattern of violent acts between the XXXXX and the
XXXXX and the large number of separate people involved in
these acts makes it more likely than not that there is a general
common plan existing among the XXXXX to commit acts of
violence with the XXXXX.
(5) That in a longstanding, gang‐shooting war, members of the
victim gang in one shooting frequently know or suspect that
they know who the perpetrators are because of the “word on the
street,” which is information passed from person to person,
often based on sources within the perpetrators’ gang, on
eyewitnesses reluctant to cooperate with the police, or on gang
graffiti that is composed of writings on buildings or walls and
Gang Prosecution Manual
26 Section 1. Investigating the Gang Case
is a means used by some gang members to take credit for a
violent incident.
(6) That because of the above, a person involved as a shooter in a
gang‐related war incident will generally assume his identity is
known on the streets and that, while he must temporarily
dispose of the weapon used in the underlying offense, he must
at the same time have accessible to himself a weapon which can
be used for self‐defense upon short notice.
(7) That gang members who are involved in an ongoing war of
shooting incidents frequently do not permanently dispose of
their weapons, preferring to retain access to them for protection
from retaliation or for further use in acts of aggression while
the war is continuing.
(8) That gang members who use a firearm in gang war situations
frequently borrow the weapon used from a fellow gang
member, and after the commission of a violent act with the
weapon, they return it to the gang member they borrowed it
from, to prevent it from being seized by law enforcement
officers pursuant to a search conducted shortly after the
commission of the crime.
(9) That gang members who do use their own firearms in gang war
situations frequently pass the weapons used to fellow gang
members for safe keeping, in order to prevent the weapons from
being seized by law enforcement officers pursuant to a search of
their residences, vehicles, or persons.
(10) That when a gang member in the above situation believes that
he is no longer liable to be searched as a suspect in the shooting
incident, he will frequently retrieve the weapon used and store
it where it would be readily accessible for defense or offense,
such as in his residence, on his person, or in a vehicle to which
he has access.
Gang Prosecution Manual
27 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
Section 2.
Gang Group Crime Theories of Liability
and Investigation Considerations:
Why the Liability Net Gets Thrown
Over So Many
By
John Anderson, Assistant District Attorney
Orange County District Attorney’s Office
Supervisor of the TARGET Gang Unit
Santa Ana, California
INTRODUCTION
Gangs represent perhaps the greatest violent crime threat facing society.
Successful gang crime investigations and prosecutions usually require an intimate
familiarity with typical gang dynamics and the legal theories associated with group
criminal behavior. Before a gang can be anything else, it must first be a group and
almost always a group that involves itself, as a group, in serious and violent criminal
conduct.
Unfortunately, one of the few consistent findings in gang research is that gang
members commit a disproportionately high number of delinquent and criminal acts
compared with other non‐gang‐involved youth. Frequently, gang members commit
crime as a group, and such group criminal behavior poses unique dangers to society far
more serious than the risk typically related to individual criminal behavior.
Understanding the legal theories of group criminal liability assists in the investigation
of most gang‐related crimes—especially in crime scene considerations, victim and
witness interviews, and the interrogation of suspects.
Gang Prosecution Manual
28 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
Consider the following hypothetical yet typical gang activity scenario:
Three documented members of the Crazy Punkz (CP) street gang notice that
someone from the Not So Smart Boyz (NSSB) has come into CP territory and “plaqued
up” (spray‐painted) a wall in the CP territory with NSSB graffiti. The plaqued‐up wall
is the main wall used by CP to spray‐paint CP graffiti and is in the heart of CP territory.
The NSSB culprit also crossed out the CP graffiti. Naturally, the three CP members feel
disrespected and agree to collectively retaliate against NSSB by likewise spray‐painting
walls in the NSSB turf.
The CP members decide that because they are going into NSSB territory, they
should bring along a firearm in case they are confronted while spray‐painting and that
two of the three will paint while the third watches for rivals and the police. The three
agree that the gun will ONLY be used, if at all, to scare a rival, assuming the group is
confronted while in NSSB territory.
The three enter the NSSB neighborhood and leave their CP graffiti everywhere
they can. Sure enough, several NSSB gangsters see the CP members and confront them.
The CP member keeping lookout (and possessing the handgun) immediately takes out
the handgun and fires several shots at the NSSB members while screaming, “Die, you
cheese‐eating rats!” Two NSSB gangsters are killed and two others severely wounded.
Who is liable for what crimes? Hint: consider group crime dynamics, conspiracy
and aiding and abetting laws, and extended or derivative liability principles.
Sequentially, the CP members conspired to commit a misdemeanor (vandalism), which
makes the target crime a felony in many states; they jointly possessed the handgun (one
actually, the others constructively); they are each liable for the acts of vandalism (two as
direct perpetrators, the other as an aider and abettor); and the shooter CP gang member
directly perpetrated the murder of the two dead NSSB members and the attempted
murder of the other two who survived. The remaining two CP members are also liable
for the murders and the attempted murders as the natural and probable consequences
of conspiring to vandalize the NSSB territory while possessing a firearm. To fully
appreciate the application of these concepts, it is necessary to review group crime
dynamics, the basic principles of aiding and abetting and conspiracy laws, and
extended derivative liability.
Gang Prosecution Manual
29 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
GROUP CRIME DANGERS
The old adage “two heads are better than one” exemplifies the dynamics and
dangers associated with group participation in criminal acts. Often, group actions
synergistically affect the outcome of an intended goal. While group work and synergy
are normally considered positive attributes, these principles work dangerous
consequences when applied to criminal enterprises. Criminal law has historically
responded with severe sanctions against participants in group crime. Specialized legal
theories and crimes and criminal punishments have been developed in response to the
dangers of group criminality.
“Unquestionably, the purpose of the law in making it an offense to [agree
to commit a crime as a group] is to reach everyone who has participated in
forming the evil plan irrespective of who or how many carry out the
design, and well may this be a protection to society, for a group of evil
minds planning and giving support to the commission of crime is more
likely to be a menace to society than where one individual alone sets out
to violate the law.”
People v. Luparello, 187 Cal. App. 3d 410, 437 (1986)
The above is true because group behavior in crime represents a unique danger to
society. The potential for harm to society increases when multiple participants are
involved in the planning and execution of criminal schemes. As one court has said,
“The punishment of conspiracy as a felony . . . is explained on the theory
that concerted criminal activities are a much more serious danger than
individual criminal acts, and therefore justify drastic sanctions against the
criminal agreement itself.”
Williams v. Superior Court, 30 Cal. App. 3d 8, 11 (1973)
The United States Supreme Court has stated the following concerning the
dangerous dynamics associated with group criminal behavior:
“Collective criminal agreement—partnership in crime—presents a greater
potential threat to the public than individual delicts. Concerted action
both increases the likelihood that the criminal objective will be
successfully attained and decreases the probability that the individuals
involved will depart from their path of criminality. Group association for
criminal purposes often, if not normally, makes possible the attainment of
Gang Prosecution Manual
30 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
ends more complex than those which one criminal could accomplish. Nor
is the danger of a [criminal] group limited to the particular end toward
which it embarked. Combination in crime makes more likely the
commission of crimes unrelated to the original purpose for which the
group was formed. In sum, the danger which [group criminal behavior]
generates is not confined to the substantive offense that is the immediate
aim of the enterprise.”
Callanan v. United States, 364 U.S. 587, 595 (1961)
Group crime represents not only the danger of a crime being committed but also
a uniquely elevated danger potential. As stated by the California Court of Appeal:
“The basic [group crime prohibition] principle has some place in modern
law, because to unite, back of a criminal purpose, the strength,
opportunities and resources of many is obviously more dangerous and
more difficult to police than the efforts of a lone wrongdoer.
Collaboration magnifies the risk to society both by increasing the
likelihood that a given quantum of harm will be successfully produced
and by increasing the amount of harm that can be inflicted.”
People v. Williams, 101 Cal. App. 3d 711, 721 (1980)
The specific dangers of group crime include an increased chance of the planned
crime actually occurring, a greater possibility of criminal success, a higher risk of
violence, and an increased likelihood of escape or not being detected. Group behavior
increases courage and lowers inhibitions among group members.
Group criminal participation historically has received severe sanctions because
of the unique dangers associated with group criminal dynamics. When a group is set
upon committing a crime, there are accompanying dangers. For example, the chance of
the crime actually occurring increases because the group dynamics result in increased
courage, perceived strength from numbers, lowered inhibition among the group
members, higher degrees of negative peer influence, and a reluctance for group
participants to back out of the criminal design because the others are relying on them.
Simply stated, people do things in a group environment that they would not do alone.
Many hands make light work, and many minds can formulate better plans and more
thoroughly prepare for contingencies. Compared with a single individual, a group
increases the chances of a crime being better planned. Groups also possess more
physical strength (helpful in carrying away stolen property, subduing victims, passing
or concealing weapons, breaking down doors, etc.) than individuals and can expedite
the commission of an offense by dividing the tasks necessary for the completion of the
Gang Prosecution Manual
31 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
crime. Finally, the enhanced physical and mental attributes of a group criminal
enterprise better allow a group to escape following a crime. This is accomplished by
quicker execution of the crime, given the enhanced physical and mental attributes of a
group.
TEENAGE GROUP CRIME DANGERS
The group crime dangers described above are exacerbated when the group is
composed of teenagers and young adults and even more so with gang members.
Teenagers and young adults, on a percentage basis, are more frequently involved in
criminal acts than adults. Youthful offenders have limited or immature levels of
judgment and social development. Peer influence is at its highest among younger
people, and this age cohort frequently involves itself in group activities (criminal and
noncriminal). A startling reality is that more than 90 percent of delinquent acts are
committed in groups of two or more (Bursik, 1993, p. 142).
GANG GROUP CRIME DANGERS
Gang group criminal involvement represents the zenith of group crime dangers.
While there is no universal definition of a gang, every available definition recognizes a
gang as a group (Klein, 1995, p. 94). In fact, a gang draws its identity, strength, and
reputation from its strength as a group and the crimes it commits, usually as a group.
Research has consistently shown that gang members have extraordinarily high levels of
delinquency and criminal involvement (Esbensen, 1993, p. 110). Gangs not only commit
crime as a group but also do so more frequently than other youthful offenders who, in
turn, commit a greater percentage of crime than older‐age cohorts. Compounding the
problem is that gang members possess an antisocial, oppositional mind‐set; reject
middle‐class values; more frequently drop out of school (which increases free time,
leading to more criminal opportunity); have high levels of substance abuse; and identify
more closely with negative peers. The bottom line is that gangs represent one of
society’s greatest group criminal threats.
Gang Prosecution Manual
32 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
BASIC CONCEPTS OF GROUP CRIMINAL LIABILITY
Direct Criminal Liability
Most states consider persons who directly and actively commit or attempt to
commit acts constituting a crime as principals in the commission or attempted
commission of the crime. All such perpetrators are equally guilty of the crime, no
matter if the involvement of all is not equal. So long as each is a perpetrator of the
offense, each is legally culpable and, therefore, legally blameworthy.
Aiding and Abetting
Principals in a crime also include those who aid and abet the commission of the
offense. Aiders and abettors are liable for the same crime as the direct perpetrator(s)
and are punished the same. A person aids and abets the commission of a crime when
he or she (1) aids, promotes, encourages, or instigates another person or persons in the
commission of a crime; (2) has knowledge of the unlawful purpose of the perpetrator(s);
and (3) has the specific intent or purpose of committing or encouraging or facilitating
the commission of the crime.*
(*Many states require only willful assistance of another in the commission of a
crime with knowledge of the perpetrator’s intent. There is no requirement of intent in
the mind of the aider and abettor for the crime to actually occur.)
Simply stated, an aider and abettor is a person who helps someone in the
commission of a crime while having at least knowledge of the direct perpetrator’s
criminal or unlawful purpose. The aider and abettor either has to act knowing that the
act will help facilitate a crime or, in a minority of the states, must share with the direct
perpetrator the specific intent for the crime to actually occur. The aider and abettor by
act or advice (words) aids, promotes, encourages, facilitates, or instigates the
commission of the direct perpetrator’s crime.
There is no requirement that an aider and abettor be present at the scene of a
crime, merely that he or she knowingly helped the perpetrator commit the offense.
Drawing a diagram of the interior of a robbery location, giving the alarm codes, or
loaning the instrumentalities of a crime (getaway car, guns, rope, or duct tape) are good
examples of assisting the commission of a crime while not being present for its
execution. On the other hand, merely being present during the commission of an
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33 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
offense is not a crime. Likewise, knowing that a crime is about to occur and failing to
report or prevent it is not a crime.
Conspiracy Liability
Collective gang criminal action frequently also constitutes a conspiracy. A
conspiracy is two or more persons agreeing to commit a crime. Many states also require
that one of the conspiring parties commit some act, known as an overt act, toward the
completion of the agreed‐upon crime before criminal liability attaches against all of the
conspirators. There is no requirement that the overt act be a crime, just that it be done
to further the criminal goal of the conspiracy.
Regarding the required mind‐set of the conspirators, each must have the specific
intent to agree and to commit a crime. There is no requirement that the planned offense
actually occur or that all of the conspirators be present if the crime is attempted or
completed. Because of the recognized dangers of group criminal activity, the law
usually punishes a conspiracy the same as if the target crime actually occurred. Finally,
if the target crime is attempted or actually occurs, there is separate criminal liability for
attempted or completed crime.
INVESTIGATION CONSIDERATIONS
Frequently, in a gang context, a group rather than an individual commits crime.
Anytime multiple participants commit a crime, it is important to investigate the crime
with group criminal liability concepts in mind. When there are multiple possible
criminal perpetrators, it is important to focus on the actions of each suspect, not just the
obvious ones.
Crime Scene
Evidence found at a crime scene may indicate the involvement of multiple
suspects. Physical evidence is powerful corroboration of victim, witness, and/or
suspect statements. Every reasonable effort should be made to collect and analyze all
available crime scene evidence. Issues to consider include:
Gang Prosecution Manual
34 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
(1) Were multiple weapons used?
— Were different caliber expended bullet casings or
projectiles found at a shooting?
— Were different types of weapons left at the crime scene?
— Do the victim’s wounds indicate more than one weapon
was used?
(2) Is the available fingerprint, blood, or DNA evidence indicative of
several perpetrators?
(3) Were any other instrumentalities of the crime left behind
demonstrating group criminal behavior?
— Items of clothing, notes, multiple vehicles, etc.
(4) Is there any security video available from the scene or nearby
locations where the suspects may have been just before or after the
crime?
(5) Is there any other physical evidence that has a tendency to show
there was a group of perpetrators involved in the crime who were
assisting each other in the commission of the offense or facilitating or
encouraging the commission of the offense?
(6) Was there any fresh graffiti sprayed in the area immediately before
or after the crime that could be a gang’s claim of responsibility for
the crime?
(7) Were the victims or intended victims documented gang members
based on police records?
Witness Statements
Obviously, witnesses are a valuable source of information in multiple‐
perpetrator crimes. Sometimes, however, witnesses are allowed to give conclusionary
statements (e.g., “They all attacked the victim!” or “The skinny guy was acting as a
lookout.”) instead of detailed accounts of each suspect’s involvement. It is important
for witnesses to fully describe the actions of each perpetrator, whenever possible.
Witnesses should also be separated from each other as soon as possible and interviewed
individually. Finally, whenever possible, witnesses should be tape‐recorded to ensure
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35 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
that the witnesses’ stories are unquestionably memorialized should the witnesses
become uncooperative during court testimony.
Witnesses to a crime can provide important information in the following areas:
(1) Number of suspects.
(2) Specific actions of each suspect.
(3) Whether the suspects arrived and/or left together.
(4) How the suspects talked and interacted with each other. (Did they
speak to one another as if they were associated, and were they
directing each other during the commission of the crime?)
(5) Were there multiple direct perpetrators of the crime (e.g., shooters,
stabbers, spray‐painters, or beer grabbers in a beer run)?
(6) Were the suspects dressed similarly or in the same color of clothes?
(7) Was a gang name announced or were hand signs used before,
during, or immediately after the commission of the crime?
(8) Were the suspects known to the victim(s) and witness(es) and known
as gang members?
(9) Was someone acting as a lookout (have the witness be specific in
describing the suspect’s actions) or as a distraction while others were
stealing property or running out of the convenience store with
alcohol or other stolen property?
(10) Any other suspect actions that indicate prior planning and
agreement.
It is important to remember that a conspiracy is a completed crime either at the
time of the agreement to commit a crime or, in those states requiring it, at the time of an
overt act by one of the conspirators in furtherance of the agreement to commit a crime.
There may be no traditional crime scene with a conspiracy because the would‐be
perpetrators did not complete the agreed‐upon crime before something caused the
cessation of the movement toward the crime’s completion. Likewise, in an aiding‐and‐
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36 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
abetting situation, if the crime is attempted but not completed, then the direct
perpetrators and the aiders and abettors are still liable for the attempt.
Consider the following scenario to demonstrate when criminal liability attaches
despite the perpetrator(s) not completing the intended crime.
While driving in a car, a group of four gang members are stopped by a patrol
officer for a routine vehicle code violation. The car turns out to be stolen. A search of
the car reveals four ski masks, two handguns, a roll of duct tape, a stun gun, and a map
to the home of a jewelry merchant, who is neither related to any of the gang members
nor knows any of them. To the experienced gang investigator or prosecutor, these facts
are powerful evidence of a conspiracy to commit a residential robbery.
Gang Expert Testimony
A gang expert’s testimony is critical in gang aiding‐and‐abetting situations. A
gang expert is someone who, through training, experience, and/or education, is
thoroughly conversant with gang dynamics. The expert can help explain typical gang
behaviors that are pathetically predictable but beyond the common experience of most
jurors. Following is a listing (although in no way an exhaustive list) of several common
gang dynamic concepts and gang behavior examples of aiding‐and‐abetting and/or
conspiracy situations:
(1) Backing up. Gang members are expected to stand by while a fellow
gang member confronts or is confronted by a rival or commits a
crime in case the fellow gang member needs help. The fellow gang
members are not merely present but rather standing ready and
willing to step in with assistance should the fellow perpetrating gang
member need help. The gang members backing up the perpetrating
gang member lend confidence to the perpetrator(s) and help
encourage the commission of the offense.
(2) Driving the car. The driver in a number of crimes is a necessary
facilitator in the commission of the offenses. Drive‐by shootings and
commercial robberies are good examples of crimes frequently
involving drivers who are not the direct perpetrators of the offenses.
(3) Yelling the gang name. Fellow gang members often claim (speak or
yell) their gang’s name while one of their gang members commits a
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37 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
crime. This affords notoriety to the gang for the criminal activity of a
member. It also lends encouragement for the direct perpetrator to
complete the offense.
(4) Throwing hand signs. Gang members enjoy their notoriety.
Frequently, immediately preceding a crime or during the
commission of a crime, gang members who are not direct
perpetrators of the offense throw their gang hand signs as
encouragement to their fellow, direct perpetrator gang members or
as a sign to the victims of the perpetrators’ status as gang members.
(5) Preventing others from interfering. Gang members occasionally
prevent others from interfering in a fight between a fellow gang
member and another person or in the commission of some other sort
of crime. This conduct promotes and assists in the completion of a
crime by ensuring unfettered access to the victim.
(6) Keeping lookout or watching for the police. Gang members often
keep guard while fellow gang members commit criminal offenses.
The knowledge that others are watching out for you encourages the
continued commission of a crime. It also allows the perpetrator to
focus solely on the crime instead of looking around to see whether he
or she has been detected. A lookout is commonly utilized in street
narcotics transactions or spray‐painting expeditions.
(7) Calling the “homies” when rivals are seen. This behavior alerts
fellow gang members to the presence of rivals, which, in turn, allows
for assaultive conduct against the rivals.
(8) Stealing a car (G‐ride) for some other crime—usually a drive‐by
shooting or robbery. When a gang member knowingly steals a car
for use in some other crime, the gang member is facilitating the
commission of the other offense. The gang member is therefore
equally liable for the commission of the crime done in the car after it
was stolen.
Gang Prosecution Manual
38 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
(9) Getting or holding a weapon—the “gang gun.” Gang experts
usually opine that when a gang member has a gun, anyone in the
gang can use the gun. Further, following a crime, it is common for a
noninvolved gang member to hold the gun until the heat dies down.
Either situation helps the gang obtain, use, and conceal its collective
cache of firearms.
In order for an expert to render such opinions, however, it is critical to have
plentiful evidence of a suspect’s gang affiliation. All prior field interview cards; crime
reports; pictures; correspondence; documented admissions of gang membership to
teachers, probation or parole officers, or to jailers; interview statements; and any other
piece of gang membership evidence should be gathered for use by the expert in court.
Suspect Interview—Statements
Some of the most damaging evidence in a criminal case is admissions made by a
suspect. In a gang crime situation, gang dynamics are important areas of inquiry for an
investigating officer during a suspect interview. It is helpful in a group crime scenario
to keep the dynamics of group crime in mind; e.g., allegiance to the group, a sense of
invincibility while in the group, reliance of the group on those who have committed to
the planned behavior, the division of tasks possible with multiple crime partners, and
alcohol or narcotic use.
Often, gang members discuss their gang membership with the police even when
reluctant to admit participation in a crime. Under such circumstances, valuable
information is obtainable from gang member suspects. Interview topics should mirror
the eventual testimony of the gang expert. It is useful to have the gang suspect lay out
the gang group dynamics that are explained above.
Interview topics with a gang member suspect should include:
(1) Attachment to and identification with the gang.
(2) The gang being the primary focus and most important aspect of a
gang member’s life.
(3) Allegiance to the gang and to fellow gang members.
Gang Prosecution Manual
39 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
(4) Putting in work for the gang when called upon and knowing when
joining a gang that someday the gang member will be expected to
commit crime on behalf of the gang.
(5) “Representing” or being “down” for the gang by never backing away
from a challenge and always backing up a fellow gang member.
(6) The code of never cooperating with the police and the importance of
never being labeled a “snitch” or a “rat.”
(7) History of the suspect’s gang, the number of members, the gang’s
territory (if territorial), and the types of crimes the gang is known for
(even if the suspect denies any involvement in those crimes).
(8) Initiation rituals of walking in, jumping in, “criming in,” or being
“sexed in.”
(9) Rivalries—especially if the crime under investigation is one of
violence against a rival of the suspect gang.
(10) Expected behavior of gang members when confronting rivals and the
territories of the rivals of the suspect’s gang.
(11) Antisocial, oppositional attitudes of gang members toward the
criminal justice system, education, employment, and legitimate
society.
(12) The role of drugs and alcohol for gang members—getting buzzed is
not passing out. Drugs and alcohol increase courage yet do not
result in the loss of self‐control. Gang members usually are
experienced drinkers and recreational drug users. This line of
questioning is important and helps to offset any later claim of an
alcohol‐ or drug‐induced reduced mental capacity.
If a gang member is willing to talk about his involvement in the crime under
investigation, discuss that last. Get as much detail about the suspect’s involvement as
possible. Also, have the gang member explain in detail the involvement of the other
suspects. Frequently, gang members will acknowledge behavior they believe makes
them less culpable than the direct perpetrator(s), such as watching out for the police,
keeping others from intervening during the commission of a crime, driving the car in a
Gang Prosecution Manual
40 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
drive‐by shooting, supplying the gun(s) used in an offense, or being present to back up
fellow gang members during a crime should the need arise. Legally, the above
admissions are sufficient to establish liability as an aider and abettor, a conspirator, or
both.
EXTENDED LIABILITY FROM
GROUP CRIME PARTICIPATION
Aiders and abettors and conspirators may be liable for crimes committed or
attempted by their crime partners, other than those crimes that were aided and abetted
or the target offense of a conspiracy. Each member of a conspiracy, for example, is
liable for each act of every other member of the conspiracy that was done in furtherance
of the object of the conspiracy. A conspirator is liable for all acts of his coconspirators—
intended, unintended, or even actually forbidden—provided only that such acts be in
furtherance of the common purpose of the conspiracy.
Another proviso of aiding and abetting and conspiracy law is the concept of
extended liability for crimes committed besides those originally contemplated. Aiders
and abettors and conspirators are not only guilty of the crime(s) aided and abetted or
the object crime(s) of a conspiracy but are also liable for all other crimes committed by a
fellow principal that are a “natural and probable consequence” of the crime(s) originally
aided and abetted. A natural and probable consequence is a result that is reasonably
foreseeable to the aiders and abettors to a crime or the members of a conspiracy.
Whether a consequence is natural and probable is an objective test based on what
a person of reasonable and ordinary prudence would have expected.
The following crimes committed during group crime situations have been found
to be the natural and probable consequences of the original crime aided and abetted or
the object crime of a conspiracy:
(1) A collective act of vandalism in rival gang territory led to an assault
with a deadly weapon against a rival gang member by one of the
vandalizing gang members. All of the other gang members involved
in the vandalism were held liable for the assault.
Gang Prosecution Manual
41 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
(2) Several gang members involved in a robbery were liable for an
assault with a deadly weapon committed during the robbery by one
of their fellow perpetrators.
(3) An agreement to shoot from a vehicle led to group liability for an
attempted murder.
(4) Gang members agreeing to fight in public were all held liable for the
attempted murder committed by one of their members against a rival
during the fight.
(5) A group of robbers were held jointly liable for the murder of the
victim by one of the perpetrators.
(6) A murder was a natural and probable consequence of a group plan
to commit an assault with a deadly weapon.
(7) Gang members who agreed to fight in public (a low‐grade
misdemeanor offense) were each found culpable for the murder of a
combatant on the other side of the fight committed by one of their
fellow gang members.
Interview suspects along the lines of foreseeability and expected outcomes. For
example, ask:
Question: Why did you bring a gun to the fistfight?
Predictable response: I took the gun along because I might have needed it.
Under these circumstances, it is hard to deny the gun’s use was foreseeable.
Other examples:
Question: Why did you go to back up your fellow gang members in the fight?
Predictable response: Because there might be violence, and my fellow gang
members might have needed help.
Question: Why did you bring a gun when spray‐painting graffiti in rival gang
territory?
Predictable response: Because if I had been seen by rival gang members while
spray‐painting, there might have been violence.
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42 Section 2. Gang Group Crime Theories of Liability
and Investigation Considerations
In each of these situations, violence was a planned, foreseeable outcome, rather
than a spontaneous coincidence.
CONCLUSION
The above is meant only as an introduction to the interplay of group crime
theories and how they relate to the investigation and prosecution of group gang crime.
Familiarity with the theories enhances the odds of solving crime and successfully
prosecuting gang criminal conduct. Work with these concepts, and remember that
there is no substitute for experience in this area.
REFERENCES
Bursik, Robert J., and Harold G. Grasmick, Neighborhoods and Crime: The Dimensions of
Effective Community Control, The Free Press, Glencoe, Illinois, 1993.
Esbensen, Finn‐Aage, Davis Huizinga, and Anne W. Weiher, “Gang and Nongang
Youth: Differences in Explanatory Factors,” Journal of Contemporary Criminal Justice,
9:94–116, 1993.
Klein, Malcolm W., Cheryl L. Maxson, and Jody Miller, The Modern Gang Reader,
Roxbury, Los Angeles, California, 1995.
Gang Prosecution Manual
43 Section 3. Filing the Gang Case
Section 3.
Filing the Gang Case
By
Ronald J. Freitas
Chief Deputy District Attorney
San Joaquin County District Attorney’s Office
Stockton, California
INTRODUCTION
In many ways, gang cases may be the most complex cases filed by a prosecutor.
Since a gang is a group of people, multiple defendants and complex litigation about
using their statements against one another should be expected. Because gangs are
constantly recruiting, initiating, and training, expect juveniles to be involved. Witnesses
are often hostile to law enforcement and will recant at trial. A gang prosecution
generally involves extended or vicarious liability for aiders and abettors, conspirators,
or others involved in the criminal enterprise. If the crime is murder, individuals may be
found guilty within the felony murder rule, provocative act murder, or other theories.
Filing a gang case may be extremely difficult. Compounding your filing
decisions are many other factors. Supervisors will want to be briefed about the case.
Clerical and court staff need paperwork as soon as possible. The jail, probation
department, and juvenile hall will also be awaiting your decisions. The media will
want you to answer the questions the investigating agencies will not touch. If charges
are filed, will the vertical prosecutions gang unit retain the case or will mainline or
another unit, such as homicide, prosecute?
The real issues, however, are simply what crimes were committed and who is
liable for them. How you answer these questions and what charges you file with the
court will set the tone for this case from the beginning. These charges, for example, will
greatly affect whether the defendant will remain in custody or be eligible for bail and
how much the bail will be. These charges can affect the amount of resources that will
Gang Prosecution Manual
44 Section 3. Filing the Gang Case
be spent on further investigation of the case. The charges may also determine the
resources available to the defense. The charges will affect later plea bargains and
indicated sentence judgments from the court, as well as the defendant’s eligibility for
probation and the terms of that probation, including registration requirements.
To decide which charges to file and against whom to file them, you must have an
unsurpassed understanding of the case. You must also understand theories that extend
criminal liability to the participants. Additionally, the prosecutor must be prepared to
decide whether juveniles should be tried as adults or remain in juvenile court.
One fundamental principle cannot be stressed enough. As a prosecutor, you are
ethically bound to file charges only when there is a reasonable possibility of proving the
charges. A typical filing standard reads, “The admissible evidence should be of such
convincing force that it warrant conviction of the crime charged by a reasonable and
objective factfinder after hearing all of the evidence . . . and after hearing the most
plausible, reasonably foreseeable defense that could be raised under the evidence
presented to the prosecutor.”1 Under no circumstances is this rule to be violated. There
is not a different or lower filing standard for gang cases. When tactical decisions are
discussed in this chapter, it will always be assumed that probable cause supports the
filings. If probable cause does not exist to file charges, your decision is easy: you do
not file charges. On the other hand, once probable cause exists, aggressively prosecute
everyone who is responsible in the interests of justice.
PREPARING TO FILE THE GANG CASE
As a prosecutor, you must know more about your case than anyone else,
including the defense attorney or the judge. You cannot be surprised or embarrassed
about problems with the evidence in your case. By acknowledging and overcoming
these problems, you can confidently ask the jury to return a verdict of guilty at the end
of your trial. Knowing everything there is to know about your case begins at intake.
While rushing to comply with constitutional and statutory scheduling, you must
obtain a great amount of information in a short period of time. Reports generally will
not be completed, so you may have to rely on the statements and integrity of your
investigators. Learning about the case includes learning not only the strengths but the
1 Uniform Crime Charging Standards, CDAA, p. II‐1.
Gang Prosecution Manual
45 Section 3. Filing the Gang Case
weaknesses of the case. The author has often been told the magic words, “the suspect
confessed,” only to later learn that what was really said was, “I shot back after the
victim shot at me.” This is a long way from a confession.
To file the case, review whatever reports are available. Quite often, detectives
will not have finished their reports but will have prepared affidavits for search‐and‐
arrest warrants that you should read.
When you speak with the investigators, ask multiple questions. Obtain as much
information as you can about the defendant, the victim, the gangs involved, the area
where the crime happened, and the motive or reason the crime happened. Become
familiar with witnesses and their biases or shortcomings. Find out what other contacts
these people have with law enforcement or the criminal justice system. Also determine
who has been untruthful during the investigation and why.
When establishing evidence, ask the following questions:
What is the physical evidence?
To what extent does the crime scene, injuries, or other evidence
support or contradict the victim, witnesses, or defendant?
Does physical evidence exist that proves or disproves a victim,
witness, or defendant? What are the opinions of the forensic
pathologist?
Has a criminalist been contacted, and if so, for what?
What will this expert be able to testify to?
Ask questions about the investigation:
Are there legal issues that you need to be aware of regarding the
investigation, searches, or interrogations?
What scientific testing is available to further the investigation?
What other witnesses need to be contacted?
Are there witnesses who need to participate in photographic or
physical lineups before the defendant appears in court or before his
picture appears in the newspaper or on television? If so, make sure
that this is done so that outside sources will not later discredit the
identification as being suggestive.
In states where you have an option, you must decide whether to initiate the court
proceeding by grand jury or preliminary examination. Generally, a preliminary
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46 Section 3. Filing the Gang Case
examination will be the best route, especially if your jurisdiction allows hearsay
evidence. However, in certain instances, a grand jury indictment may be the better
route. Because the grand jury proceedings are closed, witnesses may testify and have
their identities protected. The author used a grand jury to protect a store owner in a
gang neighborhood who overheard the defendant confess to murder. Using the grand
jury allowed him to have the witness’s name redacted from the transcript, protect the
witness from retaliation, and make arrangements to move the witness safely. Grand
juries can also prevent long cross‐examinations that can tie up courts for days when
many defendants are involved. A grand jury indictment is also a successful way to
arrest several members of a conspiracy at the same time.2
By having a thorough understanding of the strengths and weaknesses of the
case, the prosecutor can file the most appropriate charges to initiate the court
proceedings.
DIRECTING FURTHER INVESTIGATIONS
An unfortunate assumption is that once the case is filed, the job of the
investigating agency is done. Nothing is farther from the truth in gang cases.
Successful resolutions require teamwork from all members of the prosecution team.
The greatest prosecutor cannot win a poorly investigated case. Witnesses will have a
rapport with the detectives who initially took their statements—not with district
attorney investigators who are strangers to them. Many witnesses are more cooperative
at trial if the detectives stay in contact with them and make arrangements for their
safety. Small things, such as extra presence of patrol officers in the neighborhood,
create goodwill that pays off greatly at trial time.
Unfortunately, the axiom for prosecutors generally is that cases get worse after
filing. Get commitments from the investigators so that the efforts they made in
developing a case warranting a criminal filing will continue through the pendency of
the litigation. If necessary, set up a schedule for completing further investigations.
Arrange deadlines with investigators for receiving their reports and providing
discovery to the defense.
2 This practice is used frequently in San Joaquin and San Diego Counties to arrest many members of a gang after making several
controlled drug buys on videotape. The “buy‐bust” operation is a successful way to incarcerate many members of a gang in a single
day.
Gang Prosecution Manual
47 Section 3. Filing the Gang Case
Investigate the defendant’s activities at the jail. At a minimum, the defendant
will answer a classification questionnaire. Such questionnaires usually determine
which gang the defendant associates with and who his enemies are. Even the most
sophisticated defendant answers these questions truthfully for fear of being housed
with his enemies. Records at the jail will show who visits the defendant, who is putting
money on the defendant’s books, and who picks up his property. Knowing who the
defendant trusts can be very important; it may be a preview of your defense witness
list. Some jails tape record jail visits. Obtain copies of the nonattorney visits or phone
calls, especially the initial ones. While defendants may try to minimize their
involvement to loved ones, they often make damaging admissions. Have the
defendant’s mail screened and cell searched for gang indicia to prove his membership.
Make arrangements for case detectives to attend the arraignment and, if possible,
introduce you to the victim or his family. Try to arrange a brief meeting afterwards to
explain your job and the court process. This is a good time to prepare the victim for the
long haul. Reinforce, however, that you will always be available to answer whatever
questions the victim has. Direct the victim’s family to those in your office who can
provide reimbursement for medical, counseling, and funeral expenses. Take time to
answer their questions and return phone calls.
Make proper security arrangements with the courts. The first court appearance
for a defendant is very emotional and often well attended by the friends and families of
both the defendant and the victim. If the victim and defendant were rival gang
members, this is a recipe for disaster inside the courtroom, in the hallways, outside the
courthouse, and in parking lots. Properly anticipating such a gathering may prevent
violence and create an opportunity to develop important intelligence regarding the
victim’s or defendant’s gang involvement.
About the same time as the first arraignment in a murder case, the family will be
planning a funeral. Have your detectives monitor this ceremony and the related
gatherings. If the victim was a gang member, it is not unusual for him to be dressed in
gang attire. Floral arrangements may have gang insignias or symbols. People
attending the funeral or participating in the ceremony, such as pallbearers, may identify
themselves as gang members by wearing gang attire or displaying hand signs.
Additionally, members of the defendant’s gang may attend the funeral. Violence can
break out between the rival gangs. In one instance, gang members forced their way into
the ceremony, snatched the victim from the casket, and stomped on his body outside
the funeral home!
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48 Section 3. Filing the Gang Case
By having a strong understanding of the facts and developing a plan to continue
the gathering of evidence, the prosecutor will be better prepared to successfully
prosecute the criminal street gang member.
JUVENILE OR ADULT PROSECUTION
Depending on the jurisdiction, if the suspect is 17 years old or younger he may
be eligible for prosecution as an adult. Several factors influence whether a minor can be
prosecuted in adult court, such as the crimes committed and the criminal history of the
minor. If the minor is prosecuted in adult court, there will be a longer prison sentence.
However, the minor is entitled to a jury trial. If he remains in juvenile court, he will
receive a much shorter sentence but will serve the time in facilities better equipped for a
minor’s education and rehabilitation. Minors in juvenile court are not entitled to jury
trials.
In some instances, prosecution in juvenile court may be more beneficial than in
adult court if the evidence is weak against the minor. Also, if the juvenile is a small
player in the crime, juvenile court may be more appropriate. Juvenile court may be a
better choice when the minor will be used to prosecute the adults in the crime by
testifying. Finally, juvenile court rules frequently do not require independent
corroboration of a cosuspect’s statement regarding a juvenile’s involvement in a case,
whereas adult criminal procedure rules on accomplice statements usually do.
The decision to prosecute a minor in adult or juvenile court should never be
taken lightly, and all factors should be considered.
CRIMINAL LIABILITY
If your defendant is the shooter, stabber, robber, etc., liability is direct and
generally easy, but what if your defendant is not directly liable? What if the defendant
was the driver or provided the guns? What if he participated in the planning stages but
is not present at the crime? What if the defendant agreed to participate and then did
little during the commission of the crime; e.g., an unarmed backseat passenger along as
backup? What if the crime committed was not the intended crime but a crime greater
than the one intended, yet it is a logical and direct consequence of the originally
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planned crime? What if an unintended victim is injured or killed? Or what if one
defendant is not present when the crime occurs but had earlier agreed to participate?
The answers to many of these questions are contained in accomplice liability
laws, such as aiding and abetting or conspiracy. Also, if the crime is murder, additional
theories of vicarious liability exist, such as the felony murder rule, provocative act
murder, and concurrent causation murder.
If the witness is an accomplice, his testimony alone may be legally insufficient to
convict a defendant. An accomplice is someone who can be charged with the same
crimes as the defendant. In California, an accomplice’s testimony requires some
corroboration connecting the defendant to the crime before the defendant can be
convicted. If your case is based solely upon an accomplice’s testimony, you will not be
able to convict without additional evidence, such as a confession, eyewitness
identification, or physical evidence.
By understanding each of these concepts, their similarities, and differences, the
gang prosecutor may prosecute every defendant who is criminally liable to the fullest
extent of the law.
AIDING AND ABETTING
Principals are individuals who are criminally liable for the crime and include not
only those who directly commit the crime (e.g., a shooter) but also those who aid and
abet the crime. If a defendant is an aider and abettor, he is as liable for the crime as if he
had committed the crime himself.
Mere presence at a crime does not make someone an aider and abettor. An aider
and abettor must have an intent to promote the illegal conduct. For example, if a
defendant’s girlfriend drives him to the liquor store and does not know he is going to
rob it, she is not an aider and abettor.
State statutes on aiding and abetting differ on the required mental state of an
accomplice. Some states require that the accomplice share the criminal intent of the
direct perpetrator, State v. Kendrick, 9 N.C. App. 688 (1970). As one court put it:
“Complicity is not a theory of strict liability. It is not sufficient that the
defendant intentionally engaged in acts which ultimately assisted or
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encouraged the principal. Rather, the complicitor must intend that his
conduct have the effect of assisting or encouraging the principal in
committing or planning the crime committed by the principal.”
Bogdanov v. State, 941 P.2d 247 (Colo. 1997)
Other states require a lesser mental state for aiding and abetting. The accomplice
must only have knowledge or reason to know of the actor’s mental state, State v. Lewis,
514 N.W. 2d 63 (1994 Iowa Sup).
“The seller may not ignore the purpose for which the purchase is made if
he is advised of that purpose, or wash his hands of the aid that he has
given the perpetrator of a felony by the plea that he has merely made a
sale of merchandise. One who sells a gun to another knowing that he is
buying it to commit a murder, would hardly escape conviction as an
accessory to the murder by showing that he received full price.”
Backun v. United States, 112 F.2d 635 (4th Cir. 1940)
An aider and abettor need not be present to be liable. If a gang member provides
guns for a drive‐by shooting on rivals, he is an aider and abettor, even if he stayed at
home during the shooting.
An aider and abettor is liable for the crimes committed unless there is a legally
sufficient withdrawal. Generally, to withdraw from aiding and abetting liability, the
defendant cannot merely walk away from the crime; the defendant must announce his
withdrawal and do all in his power to prevent the commission of the crime.
Aiders and abettors are common in gang crimes. They generally are the drivers
in drive‐by shootings. They also include individuals who furnish the stolen cars or
guns to commit the crimes or who serve as lookouts during the commission of a crime.
In each of these examples, even though the defendants did not directly commit the
crime (i.e., shoot and kill the victim), they are aiders and abettors (or accomplices) and
are as guilty as if they had committed the crime.
Aiders and abettors, however, are not accessories. While aiders and abettors aid
in the commission of the crime, accessories aid the principals only after the crime has
been committed. For example, a girlfriend of a gang member who hides him or the
weapon after the crime is not an aider and abettor but an accessory. Because her
participation begins only after the commission of the crime, her criminal liability is
limited to being an accessory. A gang member who intimidates a witness after the
crime to prevent his testimony is also an accessory. However, if one of the defendant’s
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fellow gang members tells a friend of the victim to stay out of a gang fight or blocks
intervention while the fight is taking place, the fellow gang member is an aider and
abettor.
A difficult prosecution for aiding and abetting is a situation in which the
defendant is an unarmed passenger during a drive‐by shooting. The defendant does
not act during the crime and may not be criminally culpable. However, an argument is
made through gang‐expert testimony that this individual is an aider and abettor. By the
act of entering the car and choosing to be present at the shooting, he can be a lookout to
identify the victims or to warn the perpetrator of police activity. Also, this passenger
can act as backup to the shooter, having the ability to continue shooting if the initial
gunman is wounded or killed. Investigators should be trained to establish such
information when interviewing a nonshooting backseat passenger. This is a tough sort
of case that may better be handled as a conspiracy.
Gangs have used juveniles as shooters because of lesser penalties they
traditionally receive in juvenile court. Females can be aiders and abettors too. Gangs
may use females to carry weapons and drugs because they generally do not attract the
same level of police attention as males. Female gang members can be lookouts and
even drivers in shootings for the same reasons. When investigated, these females may
not be interrogated or searched as thoroughly as male gang members. Do not jump to
conclusions about an individual’s guilt based solely on age or gender.
CONSPIRACY
A conspiracy is an agreement between two or more persons for an unlawful
purpose. In some jurisdictions, the crime of conspiracy is complete when the agreement
for an unlawful purpose has been reached, State v. Condrey, 349 S.C. 184, 562 S.E.2d 320
(2002). Other jurisdictions require an “overt act” in furtherance of the conspiracy, State
v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001). An overt act need not be criminal; just
an action taken toward the completion of the object of the agreement to commit an
illegal act. In those jurisdictions requiring an overt act of conspiracy, liability is
established once the act is completed.
Not every member of the conspiracy needs to commit an overt act; one member
committing one is sufficient, United States v. Leonard, 61 F.3d 1181 (5th Cir. 1995).
Further, not every member needs to know who the other members are in the conspiracy
and that an overt act has occurred, Blumenthal v. United States, 332 U.S. 539, 68 S.Ct.248,
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92 L.Ed. 154 (1947). Examples of overt acts include obtaining weapons, stealing
vehicles, driving, or shooting or stabbing. Juries usually need not unanimously agree
which overt acts happened, but in some jurisdictions the overt acts must be pleaded in
the charging documents. In other jurisdictions, however, “it is not necessary for an
indictment to charge that an overt act was done pursuant to the conspiracy,” Am Jur 2d
Conspiracy.
The agreement in a conspiracy is the primary requisite act. The United States
Supreme Court stated, “The prohibition against criminal conspiracy, however, does not
punish mere thoughts; the criminal agreement itself is the actus reus,” United States v.
Shabani, 513 U.S. 10 (1994). There is great uniformity among American jurisdictions
regarding what constitutes a sufficient agreement for conspiracy purposes and how
such an agreement is proven. The following excerpt is a typical discussion on these
issues:
“To obtain a conspiracy conviction, the government must prove that there
was an agreement between two or more participants to achieve a
particular illegal end. ‘The agreement need not be shown to have been
explicit. It can instead be inferred from the facts and circumstances of the
case. A tacit understanding will suffice to show agreement for purposes of
a conspiracy conviction. There need not be any written statement or even
a speaking of words which expressly communicates agreement.
Furthermore, the participants in a conspiracy need not be fully aware of
the details of the venture so long as they agree on the ‘essential nature of
the plan.’ Finally, evidence sufficient to link a particular defendant to a
conspiracy ‘need not be overwhelming,’ and may be demonstrated by
circumstantial evidence,”
United States v. Amiel, 95 F.3d 135, 144 (1996).
The agreement need not be proven by direct evidence only; it may be proven by
circumstantial evidence.
Some jurisdictions limit conspiracy liability to a misdemeanor. See, for example,
State v. Carbone, 10 N.J. 329 (1952). Some allow it to be charged as a felony, Gaines v.
Malone, 244 Ala. 490 (1943). Some even allow an agreement to commit a misdemeanor
with an overt act to be charged as a felony, State v. Pooler, 141 Me. 274 (1945). Check
your jurisdiction’s decisions.
Like aiding and abetting, a conspirator need not be present when the acts are
committed; and mere presence does not make one a conspirator. To withdraw from a
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conspiracy, a defendant must announce his withdrawal to the other known conspirators
and do all in his power to prevent the commission of the crime. A conspirator is liable
for the crimes of the conspiracy unless there is a legally sufficient withdrawal. Also, a
withdrawal must precede the overt act in those jurisdictions requiring one, State v.
Kaiser, 260 Kan. 235 (1996). Finally, a withdrawal does not constitute a defense in
jurisdictions where an overt act is not required. The crime is considered complete after
the involved parties agree to commit a crime, People v. Juarez, 158 Mich. App. 66 (1987).
Conspiracy is useful as a prosecution theory when the defendant who agreed to
engage in criminal activity has no further involvement. If the defendant had aided by
action or words, he would be an aider and abettor. However, if the defendant agrees to
participate in a drive‐by shooting on enemy gang members on rival turf but, instead of
driving or shooting, remains as a backseat passenger, this defendant may not be an
aider and abettor. But just by agreeing to the crime, he is liable as a conspirator.
Conspiracy does not require that a defendant do anything beyond agreeing to commit a
crime to become criminally liable in some jurisdictions. In most jurisdictions, as long as
another member of the conspiracy commits an overt act, even those conspirators who
do nothing other than agreeing are liable. This liability continues, absent a legally
effective withdrawal.
An additional benefit of conspiracy may be the opportunity to admit the
coconspirator’s statements. A statement of coconspirators is a well‐established
exception to the hearsay rule, Lutwak v. United States, 344 U.S. 604 (1953). A conspiracy
need not be charged for the hearsay exception to apply. If, however, you have charged
a conspiracy, you may be in a better strategic position for a court to allow the hearsay
exception.
Conspiracies are punished for the agreed‐upon crimes; i.e., the target crimes. So
if a gang member agrees to drive to rival territory and shoot his enemies but misses, he
is liable for conspiracy to commit murder. He is not liable for conspiracy to commit
attempted murder. Also, the conspiracy to commit murder is punished as first‐degree
murder, not second‐degree murder. In this way, conspirators receive the punishment
for murder, even when no one was injured!
Conspiracy is a useful tool in prosecuting criminal street gangs. Not only are
drive‐by shootings conspiracies, but conspiracies also include drug trafficking and the
activities of prison gangs.
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NATURAL AND PROBABLE
CONSEQUENCES LIABILITY
The natural and probable consequences doctrine applies to both aiding and
abetting and conspiracy laws. The doctrine applies when something other than what
was planned or intended happens.
A common example is an agreement to aid and abet in a gang fight against rival
gang members by attending and fighting. In addition to a fight occurring, someone is
killed. Another example is a defendant who claims he only agreed to go scare rival
gang members, and instead, someone is shot and/or killed. When the natural and
probable consequences doctrine is applied in either of these examples, the defendant is
liable of murder, not the lesser crimes of assault or battery. Since, in both examples, the
death was reasonably foreseeable, the defendants are not only criminally liable for the
crimes they agree to commit but for the murders as well.
The natural and probable consequences doctrine makes aiders and abettors and
conspirators liable not only for those crimes they aid and abet or conspire to commit,
but also for those crimes that are the natural and probable consequences of their
original criminal design. A natural and probable consequence means reasonably
foreseeable. If the crimes actually committed are reasonably foreseeable to the crimes
aided and abetted or agreed to, the defendant is liable for the greater crime, United
States v. Masotto, 73 F.3d 1233 (3d Cir. 1996).
The inquiry is defined in this way. First, determine the crime that is aided and
abetted or agreed to. Call this the “target” crime. Next, determine what crime was
actually committed either instead of or in addition to the target offense. This is the
“charged” crime. The natural and probable consequences doctrine applies, creating
extended liability if the charged crime is reasonably foreseeable to the target crime.
When the charged crime is reasonably foreseeable to the target crime, the aiders’ and
abettors’ or conspirators’ liability extends to all other crimes that are the natural and
probable consequences of the original target offense, and they are placed (in a legal
sense) in the shoes of the direct perpetrator of the charged crime.
Going back to the above examples, is it reasonably foreseeable that someone will
die during a gang fight? Is it reasonably foreseeable that someone will die when gang
members invade rival territory shooting guns? Because both of these questions can be
answered “yes,” the defendants are liable for murder.
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Whether the committed crime is reasonably foreseeable is a question for the jury,
not the defendants. Therefore, it is no defense when a gang member claims he never
intended for anyone to die. If the jury finds it reasonably foreseeable that someone
would die from the agreed crime, the defendant is guilty of murder. If the crimes are
reasonably foreseeable to a reasonable person, the doctrine applies. Also, liability
extends, even when the criminal parties contemplate and agree not to do the committed
crime, if the crime is reasonably foreseeable. For example, if all the gang member agree
there will be no killing, but someone still dies, they are guilty if the death was
foreseeable.
A perfect example is the case of People v. Luparello, 187 Cal. App. 3d 410 (1986);
see also [Commonwealth v. La], 433 Pa. Super432 (1994). Dr. Luparello was a chiropractor
who hired gang members to obtain information from Martin about the whereabouts of
Gadzinski, who had recently ended their romantic relationship. During a meeting at
Luparello’s home (during which the gang members were openly armed with deadly
weapons), one of the gang members stated that he was going to “thump” the person
from whom they wanted information. Luparello replied he would like the information
“at any cost.” The next evening, the gang members, while again armed with deadly
weapons, met with Luparello. They then proceeded to Martin’s house and killed him.
The next day, Luparello told someone that he hired some Mexicans who were going to
take care of Martin. The court concluded, “That a homicide resulted from a planned
interrogation undertaken ‘at any cost’ by armed men confronting an unwilling source is
unquestionably the natural and probable consequence of that plan. The evidence thus
supports Luparelloʹs liability for the conspiratorial acts.”
In People v. Montano, 96 Cal. App. 3d 221 (1979), Montano and his fellow gang
members pretended to be in a different gang to lure and assault a rival gang member.
Once the victim joined them, they drove him to their turf. Montano left, and then his
fellow gang members murdered the rival. Because the murder was foreseeable to the
agreed conduct, Montano’s conviction for murder was upheld.
Through the natural and probable consequences doctrine, aiders and abettors
and coconspirators are liable not only for the agreed‐upon crimes but for those crimes
that are foreseeable if the plans change and more serious crimes happen.
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THEORIES SPECIFIC TO MURDER
In many ways, murder cases are different. They require increased investigation,
usually by a specially trained unit of the police department. Generally, murders are
vertically prosecuted by the district attorney’s office by those with special training who
handle only murder cases. Murders have special sentencing laws and may expose
defendants to the death penalty. Murder cases have theories of extended liability that
are not available in other cases, in addition to aiding and abetting and conspiracy.
The previous theories discussed—such as aiding and abetting, conspiracy, and
the natural and probable consequences doctrine—are available in murder cases and
should be utilized. However, theories such as the felony murder rule, provocative act
murder, and concurrent/proximate causation murder can be used only to extend
criminal liability for homicides.
Many gang‐related murders fall into long‐established categories of aggravated
liability. The typical drive‐by shooting is usually a premeditated (planned beforehand)
and deliberated (reasons for and against were considered before the action was taken)
murder when a victim is killed. Additionally, drive‐by murders are good examples of
lying‐in‐wait homicides. It is common for gang members to slowly approach a group of
rivals in a car with the radio turned down and sometimes even the lights turned off. By
the time the victims realize that a car has pulled up to the place where they are
congregating and that it contains rivals, it is too late. They have been ambushed, which
falls into a lying‐in‐wait classification in most jurisdictions. As explained below, there
are many other theories that seem tailor‐made for gang cases.
THE FELONY MURDER RULE
When a victim is killed during the commission or attempted commission of a
felony, all persons aiding and abetting the felony are guilty of murder. The qualifying
felony must either be specified by statute or be an inherently dangerous felony. This
applies irrespective of whether the killing was intentional, unintentional, or accidental. To
be liable, the defendant must aid and abet before the killing and not join in afterwards.
Certain felonies committed in conjunction with the murder may increase the degree of
the murder to first degree. In addition, the commission of certain felonies may be a
special circumstance and make the defendant eligible for the death penalty. Unlike the
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natural and probable consequences doctrine, the killing need not be foreseeable. Once
the killing occurs during a specified felony, all defendants are liable for murder.
The felony murder rule can be used in the case of an armed robbery with a
getaway driver. Even if the robber and getaway driver agree that there will be no
killing, both are liable for murder if the store clerk is killed. The robber and getaway
driver are guilty of murder, even if the killing was unintentional or accidental. If the
defendants were burglarizing a home and their gun went off, accidentally killing the
homeowner, both defendants are guilty of murder, no matter whose gun it was and that
the gun went off accidentally. However, the merger doctrine prevents the felony
murder rule from applying for the felonies of assault with a deadly weapon or
attempted murder.
PROVOCATIVE ACT MURDER
What if defendants were engaged in a gun battle with the police? During the shootout, a
police officer misses the defendants and hits a bystander or the store owner. For what crimes are
the defendants guilty? Are they only guilty of attempting to murder the police, or can they be
found guilty of the third party’s death?
The above scenario is an example of provocative act murder. The defendants are
not only guilty of attempted murder of the police officers, they are also guilty of murder
because their actions provoked another, the police officer, to kill the third party. When
someone other than a defendant kills, after the defendant commits an act provoking the
killing, the defendant is guilty of provocative act murder. Provocative act murder
differs from felony murder because a defendant or codefendant is not the killer.
However, the victim may be a bystander or a defendant.
For instance, during an armed robbery, a store clerk shoots at the defendant,
killing a customer or a codefendant. Because the defendant provoked the killing by
another individual—the store clerk—the defendant is guilty of murder. The
defendant’s acts provoking the killing must be intentional and deliberate. The
provocative acts must be those in which the natural consequences are dangerous to
human life, such as brandishing or shooting a gun.
The provocative act must be close in time and directly related to the killing. In
People v. Cervantes, 26 Cal. 4th 860 (2001), the defendant shot but did not kill a rival gang
member at a party. Minutes after the first shooting, a member of the rival’s gang shot
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and killed a member of the defendant’s gang in retaliation. The defendant was not
liable for murder for the second shooting because it was an independent and
intervening act and Cervantes was not guilty of murder. The provocative act murder is
limited to murder of the second degree.
CONCURRENT CAUSATION
Recently, a new theory of extended liability, called concurrent causation, was
created to answer a situation common to gang disputes.
More and more frequently, gang members hold shootouts in public places.
These gun battles on residential streets, in parks, or at businesses create a great danger
to the public and often result in the death of an innocent bystander. If the killer can be
identified, he is guilty of murder. Because the killer shot with the intent to kill, the
transferred intent doctrine finds him guilty of killing the unintended victim.
What about the other shooter? Is he guilty only of attempted murder, with the
victim being the rival target who is now charged with murder? What if the killer
cannot be determined by the forensic or police investigations?
In these gun‐battle situations, courts have found that all the shooters are guilty of
murder, irrespective of whether they were the killers. Because both shooters directly
caused the bystander’s death by shooting at each other, both are guilty of murder. The
concurrent causation theory reasons that since the shooters aided each other in killing
the bystander by shooting at each other without concern of harm to the public, they are
equally guilty of murder. This theory is relatively new and may not be available in all
jurisdictions.
CONCLUSION
The filing of criminal charges initiates the prosecution in the courtroom.
However, this is not when the criminal investigation ends, and prosecution should
make arrangements to continue developing the case.
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Several decisions must be made by the prosecutor, such as whether the
defendant is directly liable or liable as an aider and abettor or coconspirator. Through
these vicarious liability theories, the defendant is liable not only for the intended crimes
but also those that are reasonably foreseeable. If the defendant is a minor, the
prosecutor must decide between adult or juvenile court.
Additional theories extend liability to nonkillers for murder cases. Vicarious
liability theories in murder cases also include felony murder, provocative act murder,
and concurrent causation murder.
Prosecutors must use all theories available to them to properly hold gang
members accountable for promoting violence in the community. The pursuit of justice
is best accomplished when the prosecutor commands a thorough understanding of the
theories that make gang members guilty for all the crimes they commit. With this
knowledge, the prosecution team can aggressively arrest and prosecute everyone
responsible for the crimes.
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Section 4.
Presentation of the Case
By
Jarrett Wolf
President, the Law Firm of Jarrett Wolf,
Former Assistant State Attorney and
DEA Agent, Miami, Florida
INTRODUCTION
The trial of a gang case is not unlike other cases except that
witnesses tend not to cooperate, lie at all times, surprise the
prosecutor with theretofore unknown evidence, refuse to talk at
all, disappear, require expert testimony the judge never heard of,
etc. In short, the trial can be a mess.1
Gang cases are among the most difficult to try. Gang member witnesses, no
matter how many versions of a story they have previously given, may, while on the
stand, give yet another version. Civilian witnesses may shut down completely. A gang
expert, who is supposed to make sense of everything, may be met with an objection by
the defense and a perplexed look by the judge. Reacting to situations such as these
requires litigation expertise, a very good understanding of the rules of evidence and the
law, and an intimate knowledge of the jurisprudence of gang prosecution.
Many aspects of criminal law and procedure are not significantly different in
gang cases as opposed to other criminal cases. Other aspects are unique under the rules
of each state. Certain aspects of gang cases, however, are of such overriding importance
that an effective discussion of gang prosecution cannot take place without their being
addressed.
1 Keith Burt, Chief Deputy District Attorney, Office of the District Attorney, San Diego, California, “Prosecution of
Street Gangs.”
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Gang membership is not a crime but a dynamic that will affect the evidence, the
manner in which it is presented, the witnesses, and the jury. Until one begins to
approach these cases as “gang prosecutions,” rather than merely as cases involving
gangs, it is practically impossible to take them to trial. This section includes anecdotal
discussion from gang prosecutions as well as case law and questions that must be asked
to get certain evidence legally introduced at trial.
WITNESSES
Any prosecutor who has handled a gang case knows that gang violence
prosecution means dealing with difficult witnesses. Witnesses in a gang case generally
fall into one of three categories: (1) members of the victim’s gang who often prefer
retaliation over prosecution, (2) members of the defendant’s gang who will not testify
against their fellow gang member, or (3) members of the community who live in fear of
the gangs and refuse to get involved. Each of these types of witnesses must be dealt
with differently and resourcefully.
[V]iolent street gangs, which often engaged in drug trafficking, required a more
specialized approach. For example, police stressed that street gang cases often
involve witnesses or victims who do not possess great jury appeal. Furthermore,
these witnesses and victims may be reluctant or even unwilling to cooperate with
law enforcement due to intimidation and fear or out of loyalty to the gang.
General prosecutors often lacked the special expertise required to solidify an
investigation containing problem witnesses or victims and bring it to trial.
Opportunities to target high‐profile gang members were lost and prosecutors not
specifically charged with making an impact on the street‐gang problem had little
time for proactive involvement at the investigative stage. As a result, criminal
cases involving street gangs tended to receive inadequate attention.2
Members of the Victim’s Gang as Witnesses
In State of Florida v. Herbert Wilson, the state charged that on June 3, 2000, the
defendant, Herb Wilson, shot Steven Rudolph. Rudolph had been walking down the
street when Wilson jumped from a truck and opened fire. Wilson shot several times at
Rudolph, who tried running for cover while returning fire with his own gun. Rudolph
2 Urban Street Gang Enforcement, Bureau of Justice Assistance, 1997.
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62 Section 4. Presentation of the Case
was struck one time in his back but survived. Wilson was arrested and charged with
attempted first‐degree murder with a firearm—a life sentence felony in Florida.
The state’s theory was that Wilson shot at Rudolph on June 3 in retaliation for the
murders of Kevin Trought and Trevor Clayton on May 25 and that the murders of
Trought and Clayton on May 25 were in retaliation for the murder of Anthony Leggett
on May 23. Related to those events, the state theorized, were the shootings of
Quinton Toombs and Antoine Harris on May 21. The Toombs and Harris shootings, the
state further theorized, were related to the nonfatal shooting of Trevor Clayton on
May 14.
From the time the first police officers arrived on the scene, Rudolph identified
Wilson as the person who had tried to kill him. On July 31, 2000, Rudolph attended a
prefile conference at the State Attorney’s Office, during which an affidavit was
prepared for Rudolph detailing his recitation of the facts surrounding his being shot on
June 3, 2000. On January 30, 2001, Rudolph was deposed by defense counsel for
Wilson. During that deposition, Rudolph testified that Wilson shot him on June 3, 2000.
Ten months later, on or about May 25, 2001, Rudolph contacted Wilson’s attorney
directly and advised that he wished to drop the charges against Wilson. Wilson’s
attorney scheduled a second deposition for the following Friday, June 1, 2001, at which
time Rudolph recanted his previous identifications of Wilson. This time, Rudolph
testified that he “was going through a lot at the time of the shooting and was stressed
out.” He later added that the police coerced him to identify Wilson as the shooter.
Meanwhile, prosecutors learned from a confidential informant that Rudolph planned to
take care of Wilson on his own and that he was going to lie to secure Wilson’s release so
that he could shoot him.
It is probably difficult for traditional prosecutors to believe what transpired in
the Herb Wilson case, yet those events demonstrate how difficult it can be to get a
victimized gang member witness to testify against a rival gang member.
Even when a victim is not trying to derail a prosecution to retaliate against the
defendant, the victim’s testimony or that of witnesses from the victim’s gang may be
difficult to secure. Gang member witnesses are particularly difficult to bring in for trial.
The code of silence among gang members and the fact that cooperating with police or
prosecutors will be viewed by other gang members as a sign of weakness are factors
that will negatively affect cooperation from gang member witnesses. Gang prosecutors
should be familiar with the intricacies of their respective jurisdictions’ procedures
regarding rules to show cause, contempt proceedings, and material‐witness bonds.
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63 Section 4. Presentation of the Case
Judges can be reluctant to issue material‐witness bonds, so a prosecutor making
application needs to be prepared to educate the judge and ensure that the judge will be
free of any wrongdoing.
Finally, once the prosecutor gets the gang member victim or member of the
victim’s gang on the stand, there will be yet another problem—bias. Whether that bias
is real or imagined, prosecutors have to know that just getting the victim or member of
the victim’s gang on the stand is not the end of the battle. It is preferable to stick to facts
that can be verified through other witnesses or evidence, such as what happened or
what the relationship is between the two gangs.
Members of the Defendant’s Gang as Witnesses
In State of Florida v. David Cortes, 761 So. 2d 1115, Fla. Dist. App. 3rd Dist., 2000
(unpublished opinion), several members of the Miami gang known as Take No Shit
(TNS) jumped a group of individuals they recognized as members of the rival gang
International Posse (IN/P). By all accounts, this was to be a “beat down,” using fists
and feet to beat their rivals, whom they had fortuitously encountered one Saturday
night on a busy, nightclub‐lined street on Miami’s South Beach. David Cortes,
however, fancied himself an up‐and‐comer in TNS. In an effort to “catch rank,” Cortes
pulled a knife from his pocket and, in the melee of the assault, stabbed an IN/P member,
puncturing his lung.
Following the assault, the TNS gang members ran to the car in which they had
driven to South Beach. As they made their getaway from South Beach back to Miami’s
mainland, an excited David Cortes held up a bloody knife and proclaimed, “I stuck that
IN/P!”
The victim survived, but although he and his fellow IN/P gang members knew
they had been attacked by several TNS gang members, they could not identify all of
their attackers. More important, no one could identify the actual stabber. Gang
detectives began interviewing TNS members. During the interviews, they learned
which TNS members had been involved, and they learned that Cortes had been the
stabber. Moreover, detectives learned that it was not until after the attack that anyone
even knew that Cortes had possessed a knife. This was, by all accounts, to have been
only a beat down. Detectives then approached Cortes, who denied everything.
Although one might argue that a stabbing is a natural and foreseeable outcome
of a gang assault, based on the specific facts of this case, prosecutors elected to file
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battery and aggravated battery charges against Cortes’ fellow attackers and charged
only Cortes with attempted second‐degree murder with a deadly weapon.
Cortes’ codefendants all pleaded guilty; however, none entered into a
cooperation agreement with the state. Cortes went to trial, and the prosecutor was
faced with a situation in which the only way to prove identification—in other words,
that Cortes was the person who had stabbed the victim—would be to call Cortes’
former codefendant and fellow TNS gang member, Edgar Gonzalez, as a witness.
The night before Gonzalez was to testify, the prosecutor and two gang detectives
met with Gonzalez to review his testimony. The next morning, at the prosecutor’s
request, the gang detectives picked up Gonzalez from his house, drove him to court,
and babysat him all day, lest he walk out of the courthouse and never be seen again.
Finally, Gonzalez was called to the stand. During direct examination, he identified
Cortes as the stabber, recounting for the jury that when Cortes returned to the car, he
displayed the bloody knife and bragged about what he had done. During cross‐
examination, though, Gonzalez stated that he made up the story about Cortes and the
knife and the bragging. He also stated that the only reason he had come to court and
testified was that the prosecutor had threatened to have his probation violated if he did
not identify Cortes. The jury, the judge, and the defense attorney were all surprised.
The defense attorney terminated her cross‐examination, confident that she had just
destroyed the state’s case and that her client was on his way to an acquittal.
Perhaps the only person in the room not particularly surprised was the
prosecutor. Midtrial surprises like this one are not uncommon in gang cases. During a
brief redirect examination, the prosecutor then locked Gonzalez into what he had just
stated on cross‐examination, thereby opening the door to Gonzalez′ prior consistent
statements. The prosecutor next called the lead detective, through whom the state
introduced Gonzalez′ previously inadmissible hearsay statements to police about
Cortes, the knife, and the bragging. For added measure, the prosecutor also called the
gang detectives who had been present the night before, to assure the jury that no one
had threatened Gonzalez in order to get him to testify.
Cortes was convicted and sentenced to 25 years in prison, based on the testimony
of his own fellow gang member.
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Members of the Community as Witnesses
Members of the community become both intended and unintended victims in
gang cases. Victims may be the target of a robbery or burglary or some random act of
violence, but they may also be accidentally injured during the commission of a gang‐on‐
gang assault, such as in cases involving victims struck by stray bullets.
While a few innocent civilians victimized by gang violence may be too afraid to
pursue prosecution, most are usually willing to come forward as witnesses. The mere
presentation to a jury of an innocent victim in a gang case instantly communicates to the
jury all the evils of gangs, without the prosecutor ever saying anything reversible.
Prosecutors must be wary, however, of a gang member defendant′s fellow gang
members intimidating a witness, either while the witness is on the stand or before the
witness testifies, such as in the hallways of the courthouse. A prudent measure is to
have gang detectives ensure safe access to the courtroom for witnesses.
Innocent‐bystander witnesses are much more reluctant to come forward than
innocent victims, for obvious reasons. Unlike their victim counterparts, these witnesses
have very little incentive to testify. For most, the idea of doing their civic duty or
contributing to a better community is far outweighed by the fear of retaliation from
gang members. A prosecutor can try to persuade these witnesses to cooperate, but in
truth, it is difficult to argue with their logic in not wanting to participate. The
possibility of a material‐witness bond exists, but a prosecutor should seriously consider
whether to lock up an innocent civilian just because that person is afraid to testify
against gang members.
One important way to objectively protect witnesses and to subjectively gain their
continued cooperation is by keeping a defendant detained pretrial. Thus, a defendant’s
first appearance is an important proceeding and should be attended by both the gang
prosecutor and the lead detective. There, the prosecutor should give the magistrate an
applicable treatment of the bond statute, arguing for an increased bond or, when
applicable, no bond.
Another important way to ensure cooperation is by dealing with the problem of
witness reluctance ahead of time. The gang prosecutor already knows the geographic
areas from which gang cases are most likely to come. By being proactive and having a
presence in the community, the prosecutor will not be viewed as a stranger but as
someone whom victims and witnesses can trust.
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Cooperating Defendants
One last type of witness for which the gang prosecutor should be prepared is the
witness who was a participant in the crime. Cooperating defendants are often
necessary in gang cases to give the jury a complete understanding of what happened or
who did it. The process of presenting flip witnesses, however, is something that begins
long before the witness takes the stand. (A flip witness is a defendant who has been
offered limited‐use immunity in exchange for cooperating testimony.)
The first thing a prosecutor has to consider is who to flip. Obviously,
prosecutors should want to strike a balance between those defendants least culpable
and those able to provide the evidence needed to prove the case. Shooters, stabbers,
and rapists are not the defendants prosecutors want to flip. Rather, prosecutors should
be seeking people such as the driver or a passenger actively looking for victims in a
drive‐by shooting, someone who was involved in an assault but did not present a
weapon, or someone who was present at the scene and may have aided and abetted the
crime by cheering everyone on but who did not actually touch or strike the victim.
Part of selecting the right cooperator involves interviewing defendants under the
conditions set out in an immunity letter. Such an immunity letter might be referred to
as a Kastigar letter or a queen for a day letter3; however, regardless of its name, its
purpose is the same. In the letter, written to the defendant’s attorney, the prosecutor
should state that it is his understanding that the defendant is interested in speaking
with law enforcement in hopes of resolving his current charges. The conditions of such
an interview should be set out in the letter and will ordinarily confer limited‐use
immunity for a defendant′s testimony. The letter should not, however, provide
derivative‐use immunity. Sample language is as follows:
3 In Kastigar v. United States, it was found that the United States can compel testimony from an unwilling witness
who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as
provided by 18 U.S.C. 6002, from use of the compelled testimony and evidence derived therefrom in subsequent
criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege
and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader
protection than the Fifth Amendment privilege and is not constitutionally required. In a subsequent criminal
prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived
from a legitimate source wholly independent of the compelled testimony.
Proffer or “queen for a day” letters are written agreements between federal prosecutors and individuals under
criminal investigation that permit these individuals to tell the government about their knowledge of crimes, with the
supposed assurance that their words will not be used against them in any later proceedings. (The individuals can
either be witnesses, subjects, or targets of a federal investigation, although it is subjects and targets who provide
most proffers.)
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Pursuant to our conversations, I understand that your client is interested in
speaking with the State Attorney’s Office regarding his involvement in the
conspiracy to traffic in cocaine, for which he is presently charged. I further
understand that your client is interested in entering into these discussions in
hopes of eventually being able to resolve his current charges.
If your client is willing to cooperate with the State Attorney’s Office and law
enforcement, I will grant him limited‐use immunity for his testimony. No
statements provided by him in this matter pursuant to this agreement will be
offered into evidence against him, other than a prosecution for perjury in the
event that he did not provide truthful information. The obligation of truthful
disclosure includes an obligation to provide the attorneys and law enforcement
officers with any documents, records, or other tangible evidence within his
custody or control relating to the matters about which he is questioned.
The state of Florida and the United States government remain free to use
information derived from the debriefing, directly or indirectly, for the purpose of
obtaining leads to other evidence that may be used against your client. Your
client expressly waives any right to claim that such evidence should not be
introduced because it was obtained as a result of the debriefing. This is to obviate
the need for a Kastigar hearing. Furthermore, the state and/or the United States
government may use statements made in the debriefing and all evidence derived
directly or indirectly therefrom for the purpose of cross‐examination, if your client
testifies at any trial contrary to information he has provided. This limited‐use
immunity agreement does not apply to any crime of homicide. No additional
promises, agreements, or conditions have been entered into other than those set
forth in this letter. I hope this letter clarifies the conditions under which I would
be willing to speak to your client.
If the defendant and his attorney agree to the conditions, an interview is
arranged and attended by the defendant, the defense counsel, the prosecutor, and
investigators. It should be anticipated, the letter notwithstanding, that it is highly
unlikely a defendant is being 100 percent truthful from the outset. Over the course of
the interview or even follow‐up interviews, the prosecutor should be able to assess the
value of this individual as a witness by answering the following questions:
Does he have the necessary evidence?
In other words, does he know what happened or who did it?
Will his testimony prove a crime and/or identification?
Is the evidence admissible?
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In other words, how does he know it?
Did he witness it firsthand?
Did he acquire the information through coconspirator statements
or is it just ″word on the street″ hearsay?
Will the witness stand up to cross‐examination?
Has he previously been convicted of a felony or a crime involving
dishonesty?
If so, how many times?
How great is his motive to cooperate?
Obviously, he is going to want to resolve the instant case, but what
other issues, such as probation or parole violations, must also be
factored into the equation?
Having made the decision to flip a codefendant, the prosecutor should reduce
the agreement to writing. Plea agreements should set forth all the conditions of the
agreement, and prosecutors should anticipate that the agreement will be used during
cross‐examination and introduced into evidence.
One thing to consider is that plea agreements often contain a polygraph
provision, even though Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), prohibits
polygraph results from being admitted. Frye should not, however, motivate a
prosecutor to forego polygraph examination of a cooperating defendant if the
agreement calls for it, lest the argument be made that the prosecutorʹs reason for not
polygraphing the witness was that the prosecutor himself did not believe the witness.
Polygraph results are not admissible. But the conscious decision by a prosecutor not to
polygraph a defendant who has signed a plea contract agreeing to a polygraph may be
admissible. If a contract calls for a polygraph, a polygraph should be given. If no
polygraph is going to be given, the contract should not provide for it.
Preparing a jury to accept the testimony of a flip codefendant is a topic discussed
in the section on jury selection, but the theme is essentially this: Nobody likes a
tattletale, but everybody wants to know what happened. Who better to tell us what
happened than somebody who was there and participated?
In presenting the codefendant, prosecutors should not attempt to hide anything.
If he is in jail, he should be wearing his jail clothes. If he has been brought to court from
prison, he should, ideally, be wearing his prison clothes. Some state prison systems do
not allow inmates to travel in their prison uniforms, instead sending them from prison
to jail in their civilian clothes, where they are then given jail uniforms. The idea is that
prisons are able to account for all uniforms by ensuring that the uniforms never leave
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the facility. A phone call from a prosecutor to the prison, however, can sometimes get
prison officers to send an inmate to court with his prison uniform. This is a small detail
but one that the prosecutor may want to consider if, when presenting the cooperator,
the idea of letting the flip codefendant mitigate his sentence by cooperating is balanced
by the flip codefendant’s accepting responsibility for his actions, pleading guilty, and
getting on with his sentence. Incidentally, cooperators should be pleading GUILTY, not
nolo contendere or no contest.
GANG EVIDENCE
When compared with individual criminal behavior, gang crime is unique.
Rather than occurring as snapshots, gang crimes occur as part of a filmstrip. To
understand the instant crime, it is often necessary to understand a preceding crime, the
history between the defendant and victim, or the history between the gangs to which
each belongs. In other instances, the relationship between perpetrators of a crime—
common gang membership—may be relevant to proving they acted in concert.
Violent crimes, such as assaults and murders, can be motivated by nothing more
than rivalry between two groups. Violent crimes (such as robbery) and property crimes
(such as burglary and theft), regardless of whether the gang members committing the
crime ever share the proceeds with the entire gang, are often facilitated by the
relationship among the people committing the crimes—common gang membership.
The testimony of gang member witnesses is often skewed in favor of or biased toward
or against a defendant or victim.
Gang prosecution as an area of law is relatively new. However, by considering
gang crime at its core—group criminal behavior—appellate courts, particularly in
California and Illinois, have carved out an area of law without which gang prosecution
would cease to exist. As a general rule, where gang evidence is relevant, it is
admissible.
The touchstone consideration herein is whether the evidence concerning the
defendant’s gang affiliation was relevant to the charges filed. Where the information is
relevant, it is admissible, despite any prejudice toward the accused from its disclosure.
The probative value of the evidence outweighs the prejudicial impact. An accused may
not insulate the trier of fact from his gang membership where it is relevant to a
determination of the case, simply because prejudice attaches to that revelation, People v.
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Rivera, 495 N.E. 2d 1088 (Ill. App. 1 Dist. 1986), citing People v. Hairston, 263 N.E. 2d 840
(Ill. App. 1970); People v. Calderon, 424 N.E. 2d 671 (Ill. App. 1981); and People v. Deacon,
473 N.E. 2d 1354 (Ill. App. 1985).
Proof of gang membership is relevant and admissible where there is sufficient
proof of a relationship between such affiliation and the crime charged (e.g., to show a
motive or common purpose), and where its relevance is so established, such evidence
need not be excluded merely because of its tendency to prejudice the defendant, People
v. Anderson, 505 N.E. 2d 1303 (Ill. App. 1 Dist. 1987), citing People v. Hairston, 263 N.E 2d
840 (Ill. App. 1970); People v. Jackson, 424 N.E. 2d 1207 (Ill. App. 1 Dist. 1986); and People
v. Calderon, 424 N.E. 2d 671 (Ill. App. 1981).
It is proper to introduce evidence of membership in a gang or any type of group
that relates to a question, such as motive. Thus, it has repeatedly been held that it is
proper to introduce evidence that is unpleasant or negative pertaining to an
organization where it is relevant to motive or to the subject matter at trial. In
In re Darrell T., 90 Cal. App. 3d 325 (1979), the court discussed evidence concerning the
history of various juvenile gangs as it pertained to the proof of the existence of a motive
relative to the crime of murder. In the case within, gang membership was quite
relevant. The victim and some of his companions were admitted members of a gang
that was inside the territory or turf of another gang. Additionally, appellant Bazurto
admitted having been a past member of the gang that claimed the scene of the crime as
its territory, People v. Frausto, 135 Cal. App. 3d 142 (1982), citing People v. Dominguez,
Cal. App. 3d 481 (1981) and People v. Perez, 114 Cal. App. 3d 470 (1981).
Gang evidence is admissible to prove motive, intent, identity, conspiracy,
knowledge, principal, preparation, plan, absence of mistake or accident, and bias, as
well as to explain the demeanor of a witness.
Evidence of this type is usually considered in the context of Fed. Rule of Evid.
404(b) or its equivalent in state evidence codes. Under these rules, evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person to show
action in conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial, Fed. Rule of Evid. 404(b).
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Most gang evidence, however, is not collateral but is inextricably intertwined,
thus taking it outside the purview of 404(b) analysis. In other words, it would be
impossible for the jury to understand the case being tried without understanding the
gang dynamics of the case. The United States Court of Appeals Eleventh Circuit, in
United States v. Williford, 764 F. 2d 1493 (1985), stated, “Evidence of an uncharged
offense arising from the same series of transactions as that charged is not an extrinsic
offense within Rule 404(b).” For example, understanding the rivalry that existed
between two gangs and that members of the victim’s gang had earlier in the day
assaulted a member of the defendant’s gang will help a jury understand the motive and
intent of the defendants; in other words, why they drove to the turf of the victim’s
gang—each person in the car armed with a firearm—and all but the driver were
shooting at the victim, who was innocently walking down the street.
The decision to admit evidence that falls under Rule 404(b) or is shown to be
intertwined in the crime depends on Fed. Rule of Evid. 403. Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence, Fed. Rule Evid. 403.4 The United States Supreme Court, in Old Chief v. United
States, 519 U.S. 172 (1997), stated, “The term ‘unfair prejudice,’ as to a criminal
defendant, speaks to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof specific to the offense
charged.”
THE JURISPRUDENCE OF GANG PROSECUTION
The following section provides examples of courts allowing the introduction of gang
evidence for various relevant purposes. Gang evidence has been used in court for
several decades in jurisdictions throughout the United States. There has emerged a
substantial body of law regarding the circumstances when gang evidence has been
admitted and excluded. A good example of the extent to which gang evidence has
been considered in several states is found in a Virginia Court of Appeals case, Utz v.
Commonwealth, 28 Va. App. 411, 422, footnote 2 (1998):
4 See California Evidence Code, Section 352 for an equivalent state statute.
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“Siler v. State, 705 So. 2d 552, 556‐59 (Ala. Crim. App. 1997) (admission of
past gang‐related activity and rivalry was directly relevant to show
motive and state of mind; due to its direct relevance, it was not overly
prejudicial); State v. Romero, 178 Ariz. 45, 870 P.2d 1141, 1147–48 (Ariz. Ct.
App. 1993) (evidence of defendant’s gang affiliation established a link
between the crime and gang rivalry and was relevant to establish motive;
trial court properly balanced probative value with prejudice); People v.
Williams, 16 Cal. 4th 153, 940 P.2d 710, 738 (Cal. 1997) (in gang‐related
case, gang evidence is admissible if relevant to motive or identity, so long
as probative value not outweighed by prejudicial effect); State v. Taylor,
239 Conn. 481, 687 A.2d 489, 500 (Conn. 1996) (finding evidence of gang
affiliation relevant and not overly prejudicial to establish motive for
murder); People v. Knox, 241 Ill. App. 3d 205,608 N.E. 2d 659, 663, 181 Ill.
Dec. 586 (Ill. Ct. App. 1993) (explaining that gang‐related evidence ‘is only
admissible where there is sufficient proof that gang membership or
activity is related to the crime charged,’ holding that gang‐related
evidence was sufficiently linked to offense and was, therefore, admissible
to provide motive for otherwise inexplicable murder); State v. Toney, 253
Kan. 651 862 P.2d 350, 352–53 (Kan. 1993) (evidence of defendant’s gang
membership and expert testimony about gang conduct was relevant and
admissible in government’s case‐in‐chief to show motive for murder);
Hoops v. State, 681 So. 2d 521, 529–31 (Miss. 1996) (upholding admission of
evidence of defendant’s involvement in gang that had rivalry with
victim’s gang to show motive for otherwise unexplained assault; finding
that probative value outweighed danger of unfair prejudice); Tinch v.
State, 113 Nev. 1170, 946 P.2d 1061, 1064–65 (Nev. 1997) (upholding
admissibility of evidence of gang affiliation where it was relevant to
charged offense and probative value was not substantially outweighed by
danger of unfair prejudice; ‘concluding that the [gang‐related] evidence
was relevant to the gang enhancement charge and could show motive’);
People v. Connally, 105 A.D. 2d 797, 481 N.Y.S. 2d 432, 433 (N.Y. App. Div.
1984) (limited evidence of gang affiliation was relevant and admissible to
prove motive and intent); State v. Campbell, 78 Wash. App. 813, 901 P.2d
1050 (Wash. Ct. App. 1995) (holding that evidence of defendant’s gang
affiliation was sufficiently linked with crime and was probative to show
motive and premeditation, supporting state’s theory of case; trial judge
carefully limited evidence so as to avoid undue prejudice).”
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Motive
It is proper to introduce evidence of membership in a gang or any type of group that
relates to a question in issue, such as motive, People v. Frausto, 185 Cal. Rptr. 314 (App.
1982). For example, gang expert testimony on the role of respect in gang culture was
relevant to provide a motive for an otherwise inexplicable act by assisting the jury in
understanding why the defendant would attack a person seeking to avoid a fight, State
v. Jackson, 714 N.W. 2d 681 (Minn. 2006). In a drive‐by shooting case, an Illinois
appellate court found that gang testimony regarding a gang war was relevant since the
defendant admitted he knew that his armed passengers were going to shoot at rival
gang members. The court said, “Gang evidence is relevant when it corroborates a
defendant’s confession . . . [and] is admissible despite the prejudice that attaches if it is
relevant and particularly if it is crucial in establishing motive,” State v. Davis, 335 Ill.
App. 3d 1 (2002).
Motive and Identity
The defendant’s membership in the Diamond Gang was relevant to his identity
as a participant in the group action and relevant to his credibility as a witness. The
defendant’s membership in the Diamond Gang was also relevant to his motive for
participation in the charged offenses, People v. Contreras, 192 Cal. Rptr. 810 (App. 1983).
Intent
The court implicitly found the requisite specific intent by finding that the drive‐
by shooting here was “a crime of shooting at somebody with a shotgun” and that Sergio
and Leonardo “both had knowledge of what was going to happen” (i.e., someone
would be killed), In re Sergio R., 279 Cal. Rptr. 149 (Cal. Rptr. 2 Dist. 1991). In a case out
of Hawaii, evidence of a prior gang‐related shooting was relevant to prove the intent to
enter a conspiracy, State v. Renon, 73 Haw. 23 (1992).
Knowledge and
Principal
Evidence established that the juvenile was not merely present at the scene of the
robbery but acted with requisite knowledge of criminal purpose so as to be the aider
and abettor in facilitating the robbery of an automobile, Matter of Jose T., 282 Cal. Rptr.
75 (Cal. App. 2 Dist. 1991).
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Principal
A defendant was found to be a principal in a case in which the evidence was not
contradicted that the defendant was one of those present at the discussions held by the
Crips immediately before their venture was undertaken and that, along with the others,
he departed the murder scene as soon as the shooting had occurred, People v. McDaniels,
App., 166 Cal. Rptr. 12 (1980).
Aiding and Abetting
Gang evidence is critical at times to prove aiding and abetting liability. The Ohio
Supreme Court addressed the relevancy of gang evidence in light of aiding and abetting
in a case where the defendant actively encouraged a member of his gang to shoot his
gun at someone as retaliation for an earlier gang‐related incident.
“This court has held that the state need not establish the identity of the
principal in order to convict an offender of complicity. To support a
conviction for complicity by aiding and abetting…the evidence must show
that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that
the defendant shared the criminal intent of the principal. Such criminal
intent can be inferred from the presence, companionship, and conduct of
the defendant before and after the offense is committed.”; State v. Johnson,
93 Ohio St. 3d 240 (2001) (in a gang motivated shooting gang evidence was
allowed to show defendant aided and abetted in the murder of a three
year old bystander).
In re T.K., 109 Ohio St. 3d 512, 514 (2006).
Conspiracy
Gang evidence is often admissible to establish the existence of a conspiracy, State
v. Torres, 47 Conn. App. 149 (1997) [Gang membership and leadership position in the
gang were found to be relevant to the criminal charge of conspiracy to commit murder
because it helped establish that the defendant’s actions of being at a café and
communicating by walkie‐talkie were carried out to advance a plan to harm a rival
gang member.]; United States v. Hartsfield, 976 F.2d 1349 (1992) [gang membership
relevant to prove a conspiracy charge in order to show defendant and coconspirator
were both members of a particular gang whose main purpose was to distribute drugs].
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While mere association with perpetrators of crime does not establish participation in a
conspiracy, it does provide a starting point. Here, the evidence shows much more than
the “mere association” of appellant with the conspirators. The members of the “family”
(a gang) and their supporters quite clearly formed a plan to hunt down and assault B‐
Wingers to retaliate for the stabbing of a “family” member, In re Nathaniel C., 279 Cal.
Rptr. 236 (Cal. App. 1 Dist. 1991). In a Pennsylvania case, evidence of the victim’s and
defendant’s gang affiliations and rivalries and a specific past incident where a member
of the defendant’s gang was stabbed by a member of the victim’s gang were properly
admitted to help establish a conspiracy. The court declared, “Evidence of relations,
conduct of circumstance of the parties is relevant circumstantial evidence to establish a
conspiracy. [Thus,] evidence of the gang activity involved in the present case is highly
probative of whether a conspiracy existed,” Commonwealth v. Gwaltney, 497 Pa. 505
(1982).
In another case, the defendant was present at one or more discussions
concerning Reggie T.’s fight with Daryl W. and the plan to get even. The defendant
traveled to a rival gang’s (The Fives) area in a caravan of three cars with nine or ten
other youths. Before the shooting occurred, the defendant (along with Michael P. and
Nicardo P., members of the same Crips faction as the defendant) was identified by
McCormick as one of the boys standing with McDaniels when the victim was killed.
Michael P., Nicardo P., and the defendant ran back to the car together. After the car
failed to start, the defendant and Nicardo P. ran from the scene on foot. The evidence,
although circumstantial, is clearly sufficient to support a conspiracy finding, In re
Darrell T., 979 App., 153 Cal. Rptr. 261.
Bias
Membership of the defendant and a defense witness in a prison gang whose
tenets required its members to lie, cheat, steal, and kill was admissible to show bias of
the witness, United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d 450 (1984). Gang
membership was also found admissible in a Florida case to show two defense witnesses
had a motive for lying because the defendant and they were all members of the same
gang, which created an “unusual loyalty,” Martin v. State, 797 So. 2d 6 (Fla. Ct. App.
2001). In the Kansas case of State v. Knighten, 260 Kan. 47 (1996), the defendant was
charged with the first‐degree murder of a correctional officer. The defendant’s
supporting witnesses attesting to his alibi were all members of the same gang. Gang
membership was admissible to the issues of witness bias and credibility. The court held
that “proof of bias is almost always relevant because the jury, as finder of fact and
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weigher of credibility, has historically been entitled to assess all evidence which might
bear on the accuracy and truth of a witness’ testimony.”
LITIGATING THE ADMISSIBILITY OF
GANG EVIDENCE
Particularly in emerging jurisdictions, where gang prosecution is a relatively new
concept, litigating the admissibility of gang evidence can be tricky. Even in established
jurisdictions, gang evidence might need to be litigated on a case‐by‐case basis. The
admissibility of gang evidence should be litigated pretrial. The pleading on which a
prosecutor should rely is a “Memorandum of Law: Points and Authorities on the
Admissibility of Gang Evidence.” Typically, such a pleading will summarize the facts
of the case and then give an offer of proof and argument, essentially laying out all the
reasons why the gang evidence is relevant. Next, the pleading should include a
discussion of cases where gang evidence was similarly relevant and admitted.
Obviously, in an emerging jurisdiction, the majority of cases cited will be from other
states.
In State v. Tran, 847 P. 2d 680 (Kan. 1993), the Kansas Supreme Court found itself
having to look to other jurisdictions, such as California and Illinois, for guidance in a
gang case.
Two groups had gone to a skating center one night: one group was made up of
two brothers, Toan and Toan Q., and their girlfriends―the other group consisted of
several members of the Local Boys, a street gang, of which the defendant, Hieu Tran,
was a member. Inside the skating rink, a fight occurred between one of the brothers
and Jimmy Nguyen, a Local Boy. The fight was broken up by a security officer, who
arrested Jimmy Nguyen for assault and battery.
The two brothers and their girlfriends, leaving the skating rink, headed towards
the parking lot. Kevin Nguyen followed and stated, “You fought my friend. Why don’t
you fight me?” The four were confronted by “a whole bunch of guys,” and Kevin
Nguyen then said, “Why’d you mess with my brother? You mess with him, you mess
with me.”
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Eight to ten people attacked the two brothers. Hieu Tran, the defendant, was
seen pulling a gun from his pocket and pointing it toward Toan’s head. A shot rang
out, and everybody scattered. Toan died from a head wound.
At trial, Officer Brad Carey, a gang intelligence officer for the Wichita Police
Special Community Action Team (SCAT), identified Hieu as a member of the Local
Boys gang. Officer Carey’s identification was based on observations of Hieu associating
with other gang members on two occasions and on information provided by a reliable
informant.
On appeal, the defendant claimed that he was denied a fair trial by the admission
of gang characteristics and purported gang associations. The defendant reasoned that a
gang is not simply a group of kids who hang out together. According to the defendant,
“The term ‘gang’ in its current usage connotes opprobrious implications. The use of the
word ‘gang’ takes on a sinister meaning when it is associated with activities.” The
Kansas Supreme Court disagreed, stating:
Evidence of gang association or characteristics may only be admitted if relevant.
Relevance is present in the case at bar. (Tran, at 686.)
The Tran court agreed with the state that the evidence of gang membership was
relevant to establish Hieu’s motive for the crime. Following the fight inside the skating
rink, Corby Turner heard a group of three to five Vietnamese males talking about the
incident. Turner heard the people say they were going to get even, and they knew how
they were going to do it. According to the state, that conversation established a link
between the fight in the skating rink and the fight in the parking lot that led to Toan’s
death. The motivation or desire to get even with the brothers who were involved in the
arrest of Jimmy Nguyen, a member of the Local Boys, led to the confrontation in the
parking lot. Hieu was a participant in the fight in the parking lot. Hieu made sure the
gang retaliated against the brothers when he shot Toan in the back of the head.
Absent evidence of gang affiliation, the jury would wonder why Hieu felt the need
to get even with the brothers. Again, evidence of gang affiliation established an
alliance among Jimmy, who started the initial fight inside the skating rink; Kevin,
who started the fight in the parking lot; and Hieu, who fired the shot that killed
Toan. Without evidence of gang affiliation, the state’s attempt to establish a
motive for the crime would have been impeded. (Tran, at 688.)
The Tran court went on to analogize the motive concept in that case
to the concept adopted by the United States Supreme Court in United States v. Abel,
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469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d. 450 (1984), that gang evidence may be admitted to
prove bias.
Additionally, the Kansas Supreme Court found that several facts in Tran
supported the admission of gang testimony as res gestae and acknowledged that they
had recently approved the admission of gang evidence on a res gestae basis in State v.
Walker, 843 P. 2d 203 (1992) and State v. Hooks, 840 P. 2d 483 (1992).
ADMISSIBLITY OF GANG EXPERT TESTIMONY
In People v. Langford, 602 N.E. 2d 9 (Ill. App. 1 Dist. 1992), a properly qualified
gang expert was allowed to testify that the defendant was a member of one of the two
gangs involved in that case. He recounted the history of the gangs and described the
continuing dispute between them over the right to sell drugs in the area where the
murders at issue in that case occurred. The expert witness testified that it was the
dispute that motivated the defendant to shoot the victims, who were members of the
rival gang.
In People v. Buchanon, 570 N.E. 2d 344 (Ill. App. 1 Dist), a gang specialist was
allowed to testify, among other things, that the Insane Unknowns and the Imperial
Gangsters were rival gangs that belonged to different “umbrella” organizations
(Buchanon, at 348).
In People v. Gamez, 286 Cal. Rptr. 894 (Cal. App. 4 Dist. 1991), “[T]hree Santa Ana
police officers testified as experts regarding their knowledge of gangs in general and the
Southside and Highland Street gangs in particular. One of the officers opined that the
shooting was a ‘payback’ for a prior shooting by Highland Street against Southside.
Another opined the defendant was a member of Southside. Photographs, taken in
October 1987, showing the defendant with other known Southside members throwing
the gang’s hand signs were introduced to corroborate the officers’ opinions. Based on
his own personal knowledge, crime and victim reports, conversations with other
officers, and statements by gang members, one officer gave his opinion that Southside
was a criminal street gang engaged in a pattern of criminal street gang activity.”
Relying on In re Darrell T., 90 Cal. App. 3d 325 (1979) and People v. McDaniels, 107 Cal.
App. 3d 898 (1980), the Gamez court found the use of gang expert testimony admissible.
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QUALIFYING THE GANG EXPERT
Below are sample predicate questions for qualifying a detective to testify as a
gang expert and to offer opinion testimony.
Background
Please state your name.
How are you employed?
How long have you been employed as a police officer?
To what unit are you presently assigned?
Prior to being assigned to the gang unit, to what units were you
assigned?
While in the uniform patrol division and the street narcotics unit, did
you have occasion to come into contact with gang members?
Are you presently a member of any task force?
What is the mission of the Violent Gang Task Force?
As a member, what specifically do you do?
How often does the task force conduct such an operation?
The intelligence meetings to which you referred—how often are they
held?
Are you a member of any professional associations?
What is the mission of the Gang Investigators Association?
Training and Expertise
Have you received any specialized training in the areas of gang
enforcement, investigation, or prosecution?
Have you ever taught any courses?
To whom are the gang awareness courses taught?
Do you keep current on literature, articles, or studies in the areas of
gang enforcement, investigation, or prosecution?
What are some of the materials you have read?
By whom were they written?
Have you ever written any materials on those subjects?
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Experience
As a gang detective, do you have occasion to personally come into
contact with gang members?
How often?
Is that always in a custodial context?
Describe a typical casual contact with a gang member.
In your five years as a gang investigator, your two years as a
detective in the narcotics unit, and your two years in the uniform
patrol division, approximately how many gang members have you
spoken with?
Is it your experience that gang members have a unique culture, with
its own habits, trends, customs, language, values, and morals?
Is it part of your job as a gang detective to keep current on gang
culture—the habits, trends, customs, and language?
How do you do that?
Information Sharing
As a member of the gang unit, do you share what you learn with
other gang detectives?
Do other gang detectives share information with you?
Do you share what you learn with police officers in other units?
How do you do that?
Do you also share information with other police agencies?
How do you do that?
As a gang detective, do you have the responsibility to help maintain
an ongoing gang file by collecting information and intelligence and
forwarding it to the gang crime analyst?
Is it part of your job to be familiar with gang rivalries?
Is it part of your job to be familiar with gang alliances?
Courtroom Experience
Have you ever testified before in court in a gang case?
How many times?
Have you ever been recognized by a court as an expert witness in the
field of gangs?
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How many times?
Were you allowed to testify regarding gangs, gang membership, gang
culture, gang rivalries, and gang alliances?
Gangs in Question
Are you familiar with the term “Chicago‐style” as it relates to gangs?
Please explain.
Do “Chicago‐style” gangs align themselves by nation?
Please explain what these nations are and how they relate to one
another.
Are there different levels of participation within gangs?
Do “Chicago‐style” gangs have a hierarchy?
Describe the typical hierarchy of a “Chicago‐style” gang.
How does one progress or move through the ranks?
Are you familiar with a gang called TNS?
For what do the initials TNS stand?
When did you first come into contact with members of TNS?
Is TNS a “Chicago‐style” gang?
To what nation does TNS belong?
Does TNS have colors?
What are their colors?
How do they display the colors blue and red?
Does TNS have any signs or symbols?
What are their signs or symbols?
Where do they put these signs or symbols?
Are you familiar with a gang called IN/P?
For what do the initials IN/P stand?
When did you first come into contact with members of IN/P?
Is IN/P a “Chicago‐style” gang?
To what nation does IN/P belong?
Does IN/P have colors?
What are their colors?
How do they display the colors blue and red?
Does IN/P have any signs or symbols?
What are their signs or symbols?
Where do they put these signs and symbols?
What is the relationship between TNS and IN/P?
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Defendant’s Membership
Are you familiar with the defendant Mauricio Solarzano?
Do you know him by any other names?
What is the street name by which you say you know him?
When did you first come into contact with “Desca”?
Where was that contact?
With whom was the defendant hanging out?
Did you memorialize that contact in any way?
Is this the field interview (FI) card you prepared?
Did you ever come into contact with the defendant on other
occasions?
Did you also prepare FI cards on those occasions?
Are these those cards?
Do you have an opinion as to whether the defendant, Desca, is a
gang member?
What is that opinion?
On what do you base that opinion?
To what gang do you believe Mauricio Solarzano, also known as
Desca, belongs?
JURY SELECTION
Because of the seriousness of gang crime and the serious threat to public safety
posed by gang member defendants, gang prosecution is ultimately about making the
most problematic cases prosecutable and winnable. From dealing with problem
witnesses, to litigating the admissibility of gang evidence, to introducing that evidence
through a gang expert, gang prosecutors should be able to explain evidence to jurors in
common‐sense terms.
Jurisdictions vary over how involved attorneys for the parties will be in jury
selection. Certain jurisdictions are so restrictive that jury selection is essentially
conducted from the bench, although attorneys for each side might submit certain
questions. In other jurisdictions, the attorneys are able to voir dire prospective jurors for
a reasonable period of time. “Reasonableness” is determined on a case‐by‐case basis.
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Jurors’ reactions to gangs vary. Some jurors want to convict all gang members
based on gang membership alone, regardless of whether there exists any evidence that
the defendants actually committed the crimes charged. At the other end of the
spectrum are jurors who are so afraid of retaliation that they will never be able to
convict, regardless of how overwhelming the evidence. A gang prosecution requires
jurors who are somewhere in between.
Below are sample predicate questions for discussing gangs during jury selection,
designed to seat a fair and impartial jury whose members will listen to the evidence and
render a true and correct verdict.
Juror’s Basic Attitude Toward Gangs
What do you think of when you hear the word “gang”?
Personal Knowledge About Gangs
In what area do you live?
Are there gang problems in your neighborhood?
Have you ever seen graffiti in your neighborhood?
Does any of it appear to be gang graffiti?
Have you ever tried to interpret it?
Are you aware of any gang rivalries in your neighborhood?
Gangs Involved
Have you ever heard of a gang called TNS or Take No Shit?
Where?
What effect will it have?
Have you ever heard of a gang called IN/P or International Posse?
Where?
What effect will it have?
Have you ever heard of:
Folk Nation?
People Nation?
Outlaws (not the motorcycle gang)?
Have you ever had personal contact with gang members?
Has anyone here ever been a gang member?
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Is anyone here currently a gang member?
Does anyone have any family members who are gang members or
who they think are gang members?
Does anyone have friends or know anyone who is a gang member?
Have you ever seen anyone whom you believed to be a gang
member? Why did you believe that person to be a gang member?
Are your children confronted at school by gang members?
Are your children confronted at school by gang problems/issues?
Have you ever been the victim of a gang‐related crime?
Do you know anyone who has been a victim of a gang‐related crime?
Have you ever witnessed a gang‐related crime?
Juror’s Knowledge of Gang Culture
Discuss with the jurors the following in regards to gang culture:
Dress
Understanding that dress is not the “be all” and “end all” of gang
membership
Nowadays, everyone looks like a gang member
Tattoos
Graffiti
Hand signs
Slang
Monikers
Territories (hoods or turf)
Source of knowledge—personal or from the media
Television shows or movies watched or books read on gangs or
about gangs
Gang Problem
Do you think there is a gang problem in (city/county)?
What are your feelings about that problem?
Do you think it is blown out of proportion, or is it increasing in
seriousness?
Do you understand that this trial is not supposed to be your
opportunity to get back at every gang member in the county?
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Gang evidence will be introduced to help you understand the crimes
charged. No one is charged with being a gang member. The judge
will instruct you that it is not against the law to belong to a gang, but
it is against the law to commit the crimes charged.
Gang Membership and Motive to Commit Crimes
Rival gangs
Increased status in gang catching rank/respect
Reluctant Witnesses
Witness intimidation and/or fear of retaliation is a motive to lie.
Juror’s Fear of Retaliation as an Obstacle to Deliberation in a
Gang Case
I expect the victim to testify in this case, and I expect it to come out
that he is a gang member. I should also point out that this is an open
courtroom and some of the victim’s friends may attend part of this
trial. Likewise, some of the defendant’s friends may attend part of
this trial. I also want you to understand that your personal
information, such as your address at which you received your jury
summons, is not made available to the defendant, the victim, or any
of the witnesses.
Would the fact that the victim is a gang member affect your ability to
render a guilty verdict? In other words, do you think that as a gang
member he deserves what he gets, even if that means being the
victim of a crime?
Similarly, if the charges are not proven beyond a reasonable doubt,
would you have any problem finding the defendant not guilty? In
other words, would you be able to acquit the defendant and not be
afraid of what the victim or the victim’s gang might think?
Likewise, if the charges are proven beyond a reasonable doubt,
would you have any concerns about convicting the defendant? In
other words, would you be able to convict the defendant and not be
afraid of what the defendant or the defendant’s gang might think?
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General Factors to Consider
Offensive language.
Circumstantial evidence.
How do we know what someone’s intent is?
Actions speak louder than words.
Sympathy factor—defendant is young.
Not to consider punishment or consequences of verdict. That is the
judge’s job. We all have separate jobs.
What would you do if during deliberations, a juror told you he was
not convinced the defendant committed the crime but wanted to
convict the defendant anyway because he believes all people who are
arrested are guilty?
What would you do if during deliberations, a juror told you he was
convinced the charges had been proven beyond a reasonable doubt
but did not want to convict the defendant because he felt bad about
what might happen to the defendant at sentencing?
Report juror misconduct to court . . . it does not make you a tattletale.
We are just relying on everyone.
Legal Theories That Extend Criminal Liability
Principal theory/instruction
Three Musketeers—“all for one” and “one for all”
CONCLUSION
Gang cases are not easy. They are time‐intensive and labor‐intensive. Because of
the nature of street gangs, specialized prosecutors can expect multiple codefendants
and serious charges. Management of such cases can be overwhelming and requires that
the prosecutor have experience and expertise in dealing with complex litigation
issues—such as 404(b) evidence, Bruton issues5 multiple juries, declarations against
5 Bruton v. United States, 391 U.S. 123 (1968), granted a new trial, finding error in the admission in a joint trial of a
nontestifying codefendant’s confession which directly implicated the defendant, 391 U.S. at 125–26, 137. The court
held this violated the Confrontation Clause of the Sixth Amendment to the Constitution, even though the jury had
been instructed not to consider the codefendant’s statement on the issue of the defendant’s own guilt.
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interest, prior testimony, and self‐defense—as well as experience and expertise dealing
with gang issues, such as what gang evidence is, where it comes from, for what it can be
used, and how it is introduced. Gang prosecutors often handle serious crimes involving
serious defendants. Meticulous care must be taken at each stage. There is no substitute
for preparation.
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Section 5.
Sentencing Issues in Gang Cases
By
John Anderson, Assistant District Attorney
Orange County District Attorney’s Office
Supervisor of the TARGET Gang Unit
Santa Ana, California
INTRODUCTION
Sentencing issues in a gang case are important from the time of initial
consideration of the case for filing. An appropriate disposition of a case (or a potential
case) is often a function of the charges filed, a decision to delay the filing of a case, or
deferring the entry of judgment following a guilty plea. The less serious an offense
committed by a gang member, the more options exist to fashion a disposition that
punishes the offender but still allows an opportunity for rehabilitation. The more
serious and violent felony gang offenses usually are met with the most severe charges
and the harshest possible punishments.
The fact that the majority of street gang members are most criminally active
between the ages of 14 and 24 creates additional difficult sentencing issues. Gang
prosecutions require that prosecutors be thoroughly familiar with juvenile and adult
court procedures and know when a juvenile may be prosecuted under the adult law. It
is not uncommon for juvenile and adult street gang members to be suspects in the same
case. This dynamic dictates split juvenile and adult court prosecutions at least until the
juvenile suspects are remanded to adult court.
Sentencing in gang cases is a complicated process, depending on the type of
crime, the range of possible punishments for the crime, on what charges the defendant
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is convicted, how the defendant was convicted (by plea or trial), and whether the
defendant was initially placed on probation following a conviction.
TYPES OF CRIMES
Most states classify crimes based on the seriousness of the offense as measured
by the level of violence or the amount of loss. Different classes of crimes carry different
levels of punishment. Some public disturbance offenses, such as making unreasonable
noise or disturbing the peace, often are considered noncriminal infractions punishable
by fines or community service hours but no jail time. The first level of criminal offense
is a misdemeanor, which is punishable by fines and typically up to one year of local jail
time. Common gang‐related misdemeanors include vandalism, challenging another to
fight in public, simple assault, and possession of alcohol by a minor.
Felonies are serious or violent crimes punishable by confinement in state prison,
sometimes for life, or even by death in many states for special‐circumstance murders.
Often, states have sentencing schemes that allow for more custody time based on how
the crime was committed (use of a weapon or firearm, for example), the nature of the
victim (for instance, an elderly person or a government official), the motivation for the
crime (for example, hate crimes based on race or sexual orientation), or the amount of
loss. Common gang‐related felonies include rape, robbery, attempted murder, and
murder.
In between felonies and misdemeanors is sometimes a crossover category of
crimes that can be charged as either felonies or misdemeanors. The initial filing
decision rests with the prosecutor, but during the pendency of a case, a charge filed by
the prosecutor as a felony can be reduced to a misdemeanor. A court’s decision to
reduce such an offense from a felony to a misdemeanor usually cannot be overturned
absent a clear abuse of discretion by the court. Common gang‐related offenses falling
into this category of crime include assault with a deadly weapon, joyriding, and grand
theft.
More than 70 percent of states have enacted some form of antigang crime
legislation. A number of states have laws that focus on so‐called criminal street gang
activity. Criminal street gang statutes create crime and sentence enhancements
(additional custody time) for crimes committed for the benefit of, in association with, or
at the direction of a criminal street gang. The statutes have elaborate definitions of
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90 Section 5. Sentencing Issues in Gang Cases
what constitutes a criminal street gang and what activity is included in criminal street
gang activity. Precision in the definitions helps avoid the constitutional infirmity of
vagueness in the laws but also creates difficulty in proving the charges.
ALTERNATIVES TO CRIMINAL FILINGS AND
DIVERSION PROGRAMS
The initial question when a case is presented by the police to the prosecutor for a
filing decision is whether the case warrants a filing. Just because a case can be filed does
not always mean it should be filed. Prefiling alternatives can be explored, especially in
juvenile cases involving minor offenses committed by first‐time gang offenders (e.g.,
possessing spray paint).
Police often counsel juveniles and their parents in nonviolent and nonserious
first‐time offenses. The idea behind such a strategy is informing the parents of the
juvenile’s activities and enlisting the parents’ help in keeping the juvenile offender on
the straight and narrow. Sometimes police departments have the juvenile and parents
come to the station for a more formalized counseling session.
If a case is referred to the juvenile authorities (usually the probation department)
for presentation to the prosecutor’s office for a filing decision, the authorities sometimes
have the discretion to place the juvenile offender on informal probation. In such cases,
the charges are never presented to the prosecutor if the juvenile offender completes the
requirements of the informal probation. These programs are typically limited in
application to first‐time petty offenders.
If a case is filed in either juvenile or adult court, there are a number of
alternatives to a judgment of guilty. Diversion programs allow many types of offenders
to participate in structured counseling programs. Narcotics violations (usually only
possession offenses, not possession for sale, sale, or manufacturing cases) are the most
common crimes eligible for diversion programs. In California, narcotics offenders are
allowed to participate in three different drug diversion programs. Each allows
offenders a chance to complete narcotics offender diversionary programs in exchange
for a dismissal of their cases. Gang members are notorious substance abusers and
therefore prime candidates for narcotics diversion programs. Other types of diversion
programs cover petty theft and domestic violence cases.
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FILING DECISION
The decision to file a criminal case is the first step in which sentencing is
considered. Gang case filing decisions are subject to the same ethical standards as any
other case. A prosecutor should not file a case unless, after a careful consideration of all
of the available admissible evidence and taking into consideration any possible defense
apparent in the available evidence, the prosecutor is satisfied there is a reasonable
probability of proving the truth of the charges beyond a reasonable doubt to an
objective fact finder (a jury or a judge in a court trial). Prejudice toward a gang member
suspect (or gangs in general) or public pressure never justifies a case filing if there are
insufficient facts to support the filing.
Sentencing implications related to the charging decision include that some
charges make a defendant ineligible for probation upon conviction or require
mandatory minimum sentences upon conviction. It is critical at the time of filing to
obtain and thoroughly review all of a defendant’s prior conviction records to ensure
that all applicable crimes and enhancements (i.e., strikes, prior felony convictions, and
prior prison terms) are alleged. Finally, while sentencing considerations start at the
filing of a case, getting the sentence requires a successful prosecution in the trial court
and no loss of the conviction on appeal. Thus, a prosecutor must remain completely
within ethical boundaries from the filing of a case through its conclusion. It is senseless
to secure a conviction that will be reversed on a new trial motion before sentencing or
on appeal.
Adult or Juvenile Court
Given the youthful age of many gang offenders, often a decision must be made
when charges are filed whether to seek to try a juvenile as an adult or keep the offender
in juvenile court. Most states allow for minors as young as 16, 14, or even 12 years old
to be tried as adults if a juvenile offender is found unfit for juvenile court proceedings.
This process requires filing charges in juvenile court and setting the case for a fitness
hearing. With serious and violent felonies, the threshold of unfitness is lower than for
misdemeanor or nonserious/violent offenses. Factors considered in a fitness hearing
include the gravity of the current offense, the level of sophistication of the minor
offender in the commission of the offense, the minor’s previous record, and the prior
attempts by the juvenile court to rehabilitate the offender.
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Some states allow for the direct filing of certain criminal charges against a
juvenile in adult court without the need of a fitness hearing. In California, for example,
crimes committed in association with, for the benefit of, or at the direction of a criminal
street gang are chargeable at the prosecution’s discretion in adult court without judicial
acquiescence. Further, some states require the filing of adult court charges against
juveniles in murder cases (at least where the minor was the direct perpetrator of the
murder) or serious sex offenses. (See California Welfare and Institutions Code, Section
707.)
A minor offender faces much less severe consequences staying in juvenile court
than being remanded to adult court. There are usually age limits on how long a
juvenile offender can be incarcerated (i.e., until 18, 21, or 25 years old). In adult court,
the juvenile offender may face as much as life in prison without possibility of parole.
The only true prohibition on the sentences imposed on juvenile offenders tried as adults
is that juveniles cannot face the death penalty.
The decision of where to try a juvenile gang member is obviously an important
one. It is a decision that requires careful consideration of the offense and the offender.
If there is a good chance the gang member may rehabilitate while incarcerated in
juvenile facilities, it is sometimes best to keep the minor in juvenile court by not direct
filing or requesting a fitness hearing. On the other hand, if the offense is sophisticated,
with much violence, and/or the gang member offender is a recidivist, it is probably best
to seek an adult conviction to better protect society by the longer periods of
incarceration available in adult court. Even when a juvenile is prosecuted in adult
court, there are opportunities for the minor to be returned to juvenile court on the
motion of the prosecutor or sometimes at the discretion of the court at sentencing.
Types of Charges
In adult court, the charges filed affect possible sentences. Conduct may often be
charged in different ways and sometimes for strategic reasons. A gang‐related
attempted murder, for example, can also be charged as an assault with a deadly
weapon as a backup charge to the attempted murder. The sentence for an attempted
murder (especially one committed with premeditation and deliberation) is much
greater than the sentence for an assault with a deadly weapon. Charging both crimes
allows the jury to find a defendant guilty of both changes or just the lesser assault
charge. Sometimes a prosecutor does not want to give the jury that option and charges
only an attempted murder. That charging decision forces the jury to convict or not on
the greater charge of attempted murder.
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In states with anti‐street gang laws, the decision to seek conviction on those
charges can significantly alter a possible sentence. In California, for example, felonies
committed for the benefit of, in association with, or at the direction of a criminal street
gang have several sentencing consequences. First, the crimes receive an additional
punishment of two, three, or four years for regular felonies; five years for serious
felonies; and ten years for violent felonies. Second, crimes punishable with straight life
sentences (which are normally eligible for parole consideration after 7 years) require a
defendant to serve 15 actual years before becoming eligible for parole consideration.
Third, all felonies committed for the benefit of, in association with, or at the direction of
a criminal street gang are “strikes” for future sentencing under the three‐strikes law.
Fourth, certain violent felonies are punishable by life in prison, if committed for the
benefit of, in association with, or at the direction of a criminal street gang. Finally,
misdemeanor offenses committed for the benefit of, in association with, or at the
direction of a criminal street gang (e.g., vandalism, fighting in public, and simple
assault and battery) are chargeable as felonies. (See generally, California Penal Code,
Section 186.20 et seq.)
Often the crimes committed by gang members carry significant sentences even
without the additional time imposed under anti‐street gang laws. For example, it is not
uncommon for an attempted murder or a kidnapping for specific purposes (such as
carjacking, rape, or robbery) to carry a life sentence. Carjacking, robbery, and assault
with a deadly weapon also carry significant prison terms, especially if weapons were
used or the victim was injured. Nearly all gang crime convictions (and frequently
juvenile convictions called adjudications) are strikes for future sentences. It is not
uncommon for gang members to reach their 18th or 19th birthdays with multiple strike
convictions. As such, it is critical to carefully examine gang member defendants’
criminal histories for prior strike convictions whenever filing a gang case. Obviously,
strikes affect any sentence imposed on the new case and may subject a youthful gang
offender to a sentence of life in prison.
Gang members also commonly perpetrate street violence using firearms. Many
states significantly increase the punishment for crimes committed with a firearm.
California, for example, imposes an additional mandatory term of three, four, or ten
years in prison for the use of a firearm in nonviolent felonies. (See California Penal
Code, Section 12022.5.) The penalty for using a firearm in violent felonies is
significantly higher. In violent felonies, the use of a gun (showing it or pointing it)
carries a mandatory 10‐year extra prison term, discharging the firearm carries a
mandatory 20‐year additional prison term, and discharging a firearm causing death or
great bodily injury requires an additional prison term of 25 years to life. Most firearm
use enhancements require the personal use of a firearm. In California, firearm use
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enhancement applicability is specifically expanded for gang member accomplices
committing a crime. For gang members jointly perpetrating a crime, all are punished
equally for firearm use by one of the gang members if the underlying crime was being
committed for the benefit of, in association with, or at the direction of a criminal street
gang. (See California Penal Code, Section 12022.53.) Other states allow for such
expanded firearm use enhancements for all accomplices involved in a felony crime (or a
specific category of crime, e.g., violent felony).
METHOD OF CONVICTION
The method of conviction has great impact on the sentencing consequences of the
finding of guilt. Guilty pleas come in a few different forms. The most common is a plea
negotiated between the defense and the prosecution. In exchange for pleading guilty, a
defendant is commonly given a reduction in the number of crimes that must be
admitted or a lighter sentence. Negotiated dispositions require a court’s concurrence in
the soundness of the deal and the determination that the disposition is not against the
public interest as being too light. A plea bargain should always require a defendant to
give up the right to appeal. The terms of the plea can also include restrictive probation
terms that allow police officers to search the defendant without probable cause to
believe a new crime is being committed while the defendant is on probation.
The second most common plea is that of a defendant pleading guilty to an
indicated sentence by the presiding judge. Under either scenario, the defendant admits
guilt before trial and receives a lighter sentence in exchange for an early admission of
guilt. Guilty pleas to the court often allow a defendant to avoid a harsher punishment
desired by the prosecution. In another type of plea, a court indicates a lid or a
maximum sentence that the court will impose at a later sentencing date. At the
sentencing hearing, both sides present evidence or argument on what the sentence
should be. A major shortcoming of pleas to the court is that a defendant must plead
guilty to all of the charges. A court typically cannot dismiss charges on its own motion.
Guilty pleas require a knowing and voluntary waiver of rights from a defendant.
Specifically, defendants must give up the right to remain silent, confront, and cross‐
examine witnesses and the right to a jury trial. They must further be advised of all
direct consequences of their guilty pleas (length of incarceration or deportation, for
example). Finally, defendants must offer a factual basis for their guilty pleas, describing
Gang Prosecution Manual
95 Section 5. Sentencing Issues in Gang Cases
their actions that constituted the crimes. (See the attached examples of typical felony
guilty plea form, Exhibit 1, and misdemeanor guilty plea form, Exhibit 2.)
In gang cases, it is imperative to obtain a detailed factual basis describing the
gang nature of the crime. This leaves no room for defendants to later contest the gang‐
related nature of the admitted crimes. The required elements of criminal street gang
laws are numerous, detailed, and difficult to quickly reduce to writing at the time of a
plea. A good practice is drafting the factual basis for a criminal street gang crime far
enough in advance of a guilty plea to include all required elements of the crime. Some
jurisdictions with such crimes use prefabricated forms for guilty pleas. (See the
attached Exhibit 3.)
Defendants not pleading guilty face a trial either by jury or a judge (also known
as a court or bench trial). A jury may convict on some or all of the charges or end in a
stalemate (a “hung” jury), in which they are unable to reach a verdict in all or some of
the charges. If a jury is unable to reach a unanimous decision, which is required in most
states for a conviction, a mistrial is declared on the case or the unresolved counts if the
jury is able to decide some of the charges. The prosecution then must decide whether it
wishes to seek a retrial on the case or the hung counts. If the prosecution requests a
retrial, then the trial court must decide whether there is a reasonable probability of a
future jury reaching a decision on the hung counts in a retrial. Sometimes prosecutors
move for dismissal of the hung charges in exchange for a greater sentence on the guilty
charges. This process helps a court avoid a costly retrial and defendants to limit their
sentence exposure.
A court trial is another option in which the judge alone hears the evidence and
determines the guilt or innocence of a defendant. Usually the law requires both the
defendant and the prosecution to waive a jury trial for a court trial to occur. Unlike a
jury trial, a court trial cannot end in a hung verdict because it involves only one fact
finder—the judge. Sometimes a court trial is used as a way for a defendant to avoid
pleading guilty. Instead, the court finds the defendant guilty on the basis of the
preliminary hearing transcripts or the available police reports, as long as both sides
agree to the process. This process is known as a slow plea. It allows a defendant to
effectively plead guilty yet reserve the right to appeal.
No matter how the conviction arrives (by plea, slow plea, court trial, or jury
trial), the crimes on which the defendant stands convicted in large part determine the
sentence. For example, if the defendant is convicted of crimes that carry a mandatory
jail or prison sentence, the court must follow the law. It is an abuse of discretion for a
court to dismiss a count supported by the evidence just to avoid the imposition of a
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96 Section 5. Sentencing Issues in Gang Cases
sentence that the court considers excessive. Some charges afford a sentencing option
whereby a judge may strike an otherwise mandatory sentence if the judge puts
sufficient justification on the record for imposing less than the otherwise required
sentence. Still, other crimes allow a court to fashion a sentence that the judge considers
appropriate for the offense without having to justify the sentence on the record.
Sentence Options
A court usually has three options at the time of sentencing a street gang offender.
First, a court can suspend the imposition of a sentence and place the defendant on
probation with a number of conditions. Jail time is often a condition of probation.
Probation is a grant of judicial leniency allowing defendants a chance to reform their
conduct and avoid an immediate harsher sentence. If a defendant fails to comply with
the conditions of probation, a judge can then sentence the defendant to the full jail or
prison value of the crime or reinstate probation with or without additional jail time.
The second sentencing option is to sentence a defendant but then suspend the
execution of the sentence. Frequently, suspended sentences are used as a last resort,
giving a recidivist defendant one last chance. Unlike when the imposition of a sentence
is suspended, in a suspended sentence situation, defendants know exactly what faces
them should they fail on probation. The sentence is typically higher than it would have
been had sentence been immediately imposed. In essence, defendants agree to a higher
term in exchange for that one last chance to be successful on probation.
Imposing a sentence is the final option. Misdemeanors allow courts to sentence
up to one year in jail, depending on the offense. Felonies result in state prison terms—
sometimes for life or even capital punishment for some forms of murder, in states that
have capital punishment as a sentencing option. Currently, 38 states and the federal
government have the death penalty as a sentencing option. When a sentence is
imposed—whatever it is—the punishment should fit the crime.
Gang members disproportionately commit serious and violent crimes in
comparison to other youthful offenders. Nowhere is this dynamic more pronounced
than in homicide cases. Typical forms of special‐circumstance homicide include
intentional murder during a drive‐by shooting; murder occurring during the
commission of serious or violent felonies (the felony murder rule); murder committed
while lying in wait; and in some states, murder committed for the benefit of, in
association with, or at the direction of a criminal street gang. In states allowing the
death penalty, it is the ultimate penalty in criminal law and requires the ultimate level
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97 Section 5. Sentencing Issues in Gang Cases
of preparation by the prosecution. No prosecutor should try a capital case without
significant trial experience and training on the laws of homicide and the ponderous
procedural requirements of death penalty cases, such as a specialized jury selection
process, the requirement that all proceedings be on the record, and bifurcated trials for
the guilt phase and the penalty phase.
The jury must first decide whether the death penalty should be imposed.
Without the jury’s recommendation, the death penalty cannot be imposed. In most
states, a judge can overrule a jury’s recommendation of death, but in no state may a
judge impose the death penalty if the jury recommended against it. In evaluating
whether a defendant deserves death, a jury typically considers factors in mitigation and
aggravation regarding the defendant and the murder, including:
• Circumstances of the crime and the impact of the loss of the victim to
the next of kin.
• Other crimes of violence and felonies committed by the defendant.
• Whether the murder was committed while the defendant was mentally
or emotionally disturbed.
• Whether the victim participated in/consented to the acts that resulted
in his murder.
• Whether the defendant had a reasonable belief that his conduct was
justified.
• Whether the defendant had mental problems or was intoxicated at the
time of the crime.
• The age of the defendant at the time of the crime.
• Whether the defendant had a minor role in the murder.
• Any other extenuating circumstances or evidence of the defendant’s
good character.
Alternative Sentencing Choices
There are many alternatives to county jail time as a condition of probation for
gang offenders. These options are sometimes imposed in lieu of or in addition to jail
time. Common alternative sentencing options include community service, highway
litter removal, graffiti removal, home confinement, live‐in treatment/rehabilitation
programs, and drug or alcohol treatment sessions. Community service requires a
defendant to work a specified number of hours at a program approved by the court or
the probation department. For physically fit defendants, litter removal alongside
highways or at parks can likewise be an option. However, people convicted of violent
crimes are often excluded from participating in such programs.
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98 Section 5. Sentencing Issues in Gang Cases
Graffiti removal seems like a fitting punishment for many minor gang crimes,
especially vandalism. Safety, however, is a primary concern because the types of
graffiti being removed are frequently gang‐related. Care must be taken to keep gang
defendants out of rival gang territory.
Many defendants would like to avoid county jail time because of overcrowding
or the volatile mix of offenders, from misdemeanants to murderers, in jail awaiting
disposition of their cases. Home confinement programs allow defendants to remain
confined at home on the condition of checking in with a probation officer periodically
or wearing an electronic monitoring device that alerts home confinement program
supervisors if a defendant wanders too far from a transmitting device. Home
confinement programs are usually expensive, given the rigorous supervision or
equipment needs. Another county jail alternative is a “pay to stay” program at a local
city jail. In these programs, defendants pay the cost of jailing to avoid doing time in the
county jail. Violent offenders are typically ineligible for pay to stay programs.
Cooperating witnesses in gang cases are many times codefendants to the others
charged in an offense. Given the severity of gang crimes, however, cooperating
defendants are not normally released upon their agreement to cooperate. A reduced
sentence may be in order, but usually not a complete dismissal. As such, it is
imperative to protect cooperating witnesses in custody from their fellow gang
members. In a large county, the jail system probably has branch jails throughout the
county. This allows a sheriff’s department to keep cooperating witnesses housed apart
from the other defendants. It is sometimes better for the prosecuting authorities to
house cooperating witnesses at a city jail if the witness cannot be adequately protected
in the county jail. At the conclusion of a case in which a cooperating witness is
sentenced to prison, albeit for a shorter period than the other defendants, it is
imperative to ensure the witness’s safety while the witness is in prison.
Common Gang Case Probation Terms
Probation is often given to gang defendants convicted of their first felony (e.g.,
robbery without a firearm or injury) or misdemeanor offense. Probation lasts from one
to five years, with three years typical in felonies. While on probation, defendants face
imposition of their sentences that could result in several years of state prison should
they fail to comply with the requirements of their grants of probation.
Usual terms and conditions of probation, besides jail time and/or fines, require
defendants to violate no law; comply with all lawful orders of the court, jail, and
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99 Section 5. Sentencing Issues in Gang Cases
probation department; maintain employment and associates as approved by the
probation officer; pay restitution; submit their persons, places, and things to any search
required by a probation officer; and obey any other condition a court finds justified
under the circumstances of the case. (See the attached Terms and Conditions of Felony
Probation, Exhibit 1, page 5.)
Many jurisdictions have specialized probation terms for criminal street gang
members convicted of a gang‐related crime called gang terms of probation. In addition
to the normal conditions of probation, gang terms have a number of stringent
restrictions designed to curtail further gang activity. Following are some of the
restrictions included in gang terms of probation:
• No presence in a known gang gathering area.
• No possession of spray paint, any etching device, a “slim‐jim,” a dent
puller, a cell phone, or a beeper.
• No clothing associated with or signifying membership in a street gang.
• No appearances at any court proceeding unless a party in the action, a
defendant, or subpoenaed as a witness. (See the attached Gang Terms
and Conditions of Probation, Exhibit 4.)
Sentencing Hearing
Both the defense and the prosecution have a right to ask for a sentencing hearing
following the conviction of a defendant by jury or when a court has allowed a
defendant to plead guilty with a promise of a lid or a maximum sentence. Usually, in
felony cases a sentencing report is prepared by the probation department outlining the
defendant’s family and social, employment, and criminal history. At the sentencing
hearing, the prosecution highlights the aggravated facts in the probation report and
presents additional evidence, if necessary, regarding the serious nature of the offense,
the offender, or both.
Often, a defendant’s gang affiliation may be relevant to an appropriate sentence.
This is true even if gang evidence was excluded at trial because the court decided the
probative value of gang evidence was substantially outweighed by its prejudicial
impact. The nature of the offender, including his gang affiliation, is a relevant factor to
consider at sentencing. A prosecutor should also check for any violations of jail rules by
the defendant during the pendency of the case. Such rule violations bode poorly for the
defendant’s prospects to comply with the rules and regulations of the probation
department. The violations are also common incidents of gang rivalry, which help
present the defendant as being thoroughly gang‐involved. It is difficult for a gang
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100 Section 5. Sentencing Issues in Gang Cases
member defendant in court to claim reformation while participating in gang fights at
the jail.
It is common to prepare sentencing briefs for the court delineating the crimes
and their accompanying possible punishments. Most states allow victims to make
impact statements about how a crime affected their lives before the court imposes
sentence. Finally, a court determines the amount of any restitution owed and orders the
defendant to pay it. Prosecutors should always obtain a restitution order even when a
defendant is sent to prison for life. In most states, a percentage of prison wages is
devoted to the payment of restitution, if the sentencing judge orders it.
PROBATION HEARINGS
Gang members on probation, especially those with gang terms, are frequent
violators of their probation conditions. The clearest example of a probation violation is
a defendant’s commission of a new crime. Absent the commission of a new offense,
common gang member probation violations include failing to report to the probation
officer, wearing gang clothing, associating with fellow gang members, or other gang
term disobedience.
The prosecution must prove the defendant has committed a violation if the
defendant refuses to admit to the violation. The normal burden of proof in a probation
violation hearing is a mere preponderance of the evidence (more likely than not).
Probation violations are sometimes referred to as “state prison on the installment plan.”
Moreover, depending on the severity and frequency of probation violations, many gang
member defendants eventually end up in prison. Defendants in violation of probation
may have their probation reinstated with additional jail time imposed, may be
sentenced if the imposition of their sentences was suspended, or may have their
sentences imposed if the execution of the sentences was suspended.
PAROLE CONSIDERATIONS
It is important for a prosecutor to ensure that the true picture of a gang
defendant and a gang crime is preserved for future use by a parole board should the
defendant become eligible for parole consideration. The time to gather the necessary
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101 Section 5. Sentencing Issues in Gang Cases
components of the record for future use at a parole hearing is at the time of sentencing.
A good parole package should include a sentencing transcript of the judge’s comments
about the defendant’s behavior, a probation or sentencing report, autopsy photos and
reports (in murder cases), tapes or transcripts of the defendant’s statements, any crime
scene photos, and documentation of any rules violations while in jail during pendency
of the case. Any written statements or transcripts of oral statements made by the
victims or the next of kin during the sentencing hearing should likewise be preserved.
Finally, phone numbers, addresses, and other information that will ensure notification
of the victims or next of kin of any parole consideration hearings should be collected.
CONCLUSION
Gang cases range from vandalism to multiple murder, and gang offenders can be
inexperienced youths in their early teens to hard‐core, violent adult gang member
recidivists. Appropriate sentencing in gang cases requires factoring the aggravating
and mitigating circumstances of the offense and the offender. The lesser‐involved
young gang associate committing a relatively minor offense may be the perfect
candidate for counseling and minimum court involvement.
On the other hand, the hard‐core, violent gang member recidivist committing a
new violent offense is a good candidate for the maximum incapacitation through
incarceration. It is the gang members in between, committing perhaps serious but not
violent crimes, who require the most careful attention regarding appropriate
dispositions of their criminal cases. A thorough knowledge of gang dynamics, theories
of criminal liability, and specialized antigang laws lends insight into what an
appropriate sentence might be in any given case.
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102 Section 5. Sentencing Issues in Gang Cases
REFERENCES
“Analysis of Gang‐Related Legislation,” Institute for Intergovernmental Research,
March 1, 2006, www.iir.com/nygc/gang‐legis/analysis.htm.
Boykin v. Alabama, 395 U.S. 238 (1969). In re Tah, 1 Cal. 3rd 122 (1969).
California Penal Code, Section 667 and for example, Section 190.3.
California Rules of Professional Conduct 5–110.
“Capital Punishment Statistics,” Bureau of Justice Statistics, U.S. Department of Justice,
Washington, DC, March 11, 2006, www.ojp.usdoj.gov.bjs/cp.htm.
Coalition for Juvenile Justice, “Childhood on Trial,” Washington, DC, 2005.
Egley, Arlen, Jr., et al. (eds.), The Modern Gang Reader, 3d ed., Roxbury, Los Angeles,
California, 2006.
Roper v. Simons, 543 U.S. 551 (2005).
Thornberry, Terence, “Membership in Youth Gangs and Involvement in Serious and
Violent Offending,” The Modern Gang Reader, 3d ed., Arlen Egley, Jr., et al. (eds.),
Roxbury, Los Angeles, California, 2006.
Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
112 Exhibit 3
Gang Prosecution Manual
113 Exhibit 3
Gang Prosecution Manual
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Gang Prosecution Manual
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Gang Prosecution Manual
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GlobalSecurity Studies, Winter 2015, Volume 6, Issue 1
26
Intelligence Operations in U.S. Organized Crime Rings
Jacob
Knox
Campbell University
Buies Creek, NC 27506
jtknox0104@email.campbell.edu
Abstract
In the United States, law enforcement agencies (LEAs) collect intelligence on organized crime
rings (OCRs) to determine the best way to contend with the threat of OCRs. While LEAs
intelligence collection methods are commonly known, the methods and sources of OCRs are
often overlooked. This paper’s focus is to discuss intelligence methods OCRs use against LEAs
and the shortcomings in each method. All organizations collect and use intelligence for some
reason or another. Due to certain constraints, OCRs are limited in their ability to effectively
collect certain types of intelligence such as SIGINT and IMINT and almost incapable of
collecting MASINT and GEOINT. Additionally, OCRs use all types of intelligence for specific
functions within the crime ring. Within the United States, certain measures will need to be taken
to counter act intelligence operations conducted by organized crime rings.
Key Words: Organized Crime Rings, Criminal Intelligence Collection, Counter Intelligence,
SIGINT, IMINT, HUMINT, MASINT, GEOINT, OSINT
Introduction
During the 2014 United States (U.S.) intelligence community’s worldwide threat
assessment, James Clapper (Director of U.S. National Intelligence) listed transnational organized
crime as one of the U.S. intelligence community’s top ten threats (Clapper, 2014). While the
term transnational implies multiple nations involved in certain criminal activities, one does not
have to look past U.S. borders to find organized crime rings that are threatening to the U.S.
intelligence community (Ibid). Crime rings may have certain shortcomings that would hinder
their intelligence operations, but organized crime rings (OCRs) still employ all intelligence
methods that law enforcement agencies (LEAs) execute.
Before one can study or observe how crime rings conduct intelligence operations, one
must first understand why crime rings are a threat to all levels of U.S. infrastructure. Organized
crime is defined by the Federal Bureau of Investigation as:
…any group having some manner of a formalized structure and whose primary
objective is to obtain money through illegal activities. Such groups maintain their
position through the use of actual or threatened violence, corrupt public officials,
graft, or extortion, and generally have a significant impact on the people in their
locales, region, or the country as a whole (FBI, 2013).
Looking at the definition, it quickly becomes apparent that the activities of organized
crime rings can cause damage at all levels. Damage is caused by the root of their actions, which
Organized Crime
27
is to obtain money through any means possible (Ibid). These means include violence, coercion,
sabotage, and even collecting intelligence on anyone posing a hindrance to OCR operations.
Before one can study or observe intelligence methods used by LEAs or OCRs, one must
first understand what intelligence is. Martin Bimfort defines intelligence as:
… the collecting and processing of… information… which is needed by a
government for its foreign policy and for national security, the conduct of non-
attributable activities abroad to facilitate the implementation of foreign policy,
and the protection of both process and product, as well as persons and
organizations concerned with these, against unauthorized disclosure (Bimfort,
1995).
There are two things to note about intelligence. First, there is always a customer for
intelligence (Ibid). In the example above, it is possible to replace the term “government” with
“crime ring” or “law enforcement agency” and change all following terms to match the context.
Additionally, intelligence must be collected and processed. Law enforcement agencies regularly
collect intelligence from all sources using all methods. Crime rings, however, are limited in their
ability to use intelligence methods to the same capacity as LEAs.
Limitations on Crime Ring Intelligence Operations
An intelligence source simply tells the source of the intelligence. There are six common
sources of intelligence, which are signals intelligence (SIGINT), imagery intelligence (IMINT),
measurement and signature intelligence (MASINT), human source intelligence (HUMINT), open
source intelligence (OSINT), and geospatial intelligence (GEOINT) (ODNI, 2014). SIGINT is
intelligence that is gathered through intercepted signals (be it communication, data, radar, etc.)
(Ibid). IMINT is intelligence comprised of an image (including satellite imagery, drone/aircraft
imagery, thermal imagery, radar imagery, etc.) (Ibid). MASINT focuses on data signatures and
characteristics of a given piece of information (Ibid). HUMINT is intelligence that focuses on the
interpersonal dynamics of personnel (Ibid). OSINT is intelligence that is collected through open
sources such as newspapers, scholarly articles, etc (Ibid). GEOINT is intelligence that is gathered
through geospatial assets (Ibid). All six of these intelligence sources are used in some way,
shape, or form by personnel concerned with U.S. national security.
OCRs use many of the same sources as LEAs and U.S. security personnel. One such
example is that of Scarpelli in the 1980s with the crime ring known as The Outfit (Lombardo,
2012). Scarpelli was responsible for overseeing warehouses, accounts, and book makers (Idib).
Scarpelli was also responsible for seeking out people that might have been hindering The
Outfit’s operations (Ibid). He would use HUMINT (by leveraging personal networks), SIGINT
(by tracking electronic accounts), and OSINT (by checking open networks) so The Outfit would
stay competitive (Ibid).
On the other hand, OCRs suffer from intelligence limitations for two reasons; feasibility
and budget. Look at IMINT for example. Many high gain IMINT resources require special
access and a large budget. It is estimated that it costs the U.S. somewhere between $55 million to
$90 million U.S. to put a new terminal satellite (which is crucial for IMINT and SIGINT
operations) into orbit (Magnuson, 2014). In 2012, a simple unmanned aerial vehicle (UAV) with
forward looking infrared (FLIR) capabilities (which is essential for IMINT operations) was
Knox
28
estimated to cost between $25 million to $100 million U.S. (Boyle, 2012). Italian-American
mafia Camorra is estimated to have made $4.9 billion from fiscal year 2013 to 2014 (Matthews,
2014). Someone could point out that the OCR has enough money to purchase military grade
intelligence systems, but money must first go to other places. All OCR revenue is highly
budgeted. OCRs rarely budget enough revenue to purchase high grade intelligence systems. The
issue of feasibility still stands. Most providers of intelligence systems conduct extensive
background checks on interested personnel. While it is possible, it is highly infeasible that it
would happen.
Certain sources are not impacted by these limitations. OCRs can execute HUMINT and
OSINT to the same capacity as LEAs. HUMINT and OSINT do not depend on technological
abilities, but IMINT, SIGINT, MASINT, and GEOINT, are critically dependent on technology.
Due to the technological nature of these four sources, OCRs do not operate to the fullest
potential capacity. This idea raises a substantial question. To what extent to OCRs use different
intelligence sources?
Crime Ring Use of SIGINT
As stated earlier, SIGINT is an intelligence source that focuses on intercepted signals
(ODNI, 2014). OCRs collect SIGINT through telecommunications collection and digital
collection. Phone taps are simply devices that collect telecommunication transactions from a
phone. There are two common types of phone taps, tethered and wireless. A simple tethered
phone tap that is plugged into the telephone system can be purchased for approximately $80 U.S.
(B&H Photo and Video,
2014).
A plethora of malicious software is available for use on smart phones that collect
telecommunications traffic. It was estimated in the third quarter of 2013 that approximately 204
million of all new smart phones shipped were Android based smart phones (Whitney, 2013). On
27 September 2014, chief executive officer for InvoCode Pvt Ltd was arrested by the FBI for the,
“… conspiracy and sale of a surreptitious interception device… [that] could intercept
communications to and from mobile phones and was marketed as largely undetectable and
untraceable…” (FBI, 2014). A program with these capabilities would be beneficial for an OCR
in gathering intelligence against any agency that might harm a crime ring’s operations.
Past telecommunications digital intelligence is a substantial source of information for any
interested party. Digital communication is essential for success in any organization. Due to its
rising essentiality, interception and collection of digital communications is a great source of
intelligence. Two methods for collecting digital communication are hardware collection and
software collection.
Hardware collection is physically taking hard resources (such as computers, phones,
media players, cameras, networking gear, etc) and collecting any useful information from the
digital device (Perry, 2009). Hardware collection is a difficult and time consuming way of
collecting intelligence due to its highly technical and specialized nature. There are few reported
instances of OCRs employing this method, but it is still highly effective. A thug merely has to
steal a laptop, phone, thumb drive, radio, or other piece of electronic gear and analyze it for
useful information. Some may argue that most law enforcement equipment is encrypted or
protected, but it is possible to bypass most protective measures with a basic technical knowledge
or software.
Organized Crime
29
One such example is the theft of personal data from an insecure Veteran’s Affairs (VA)
computer in 2006. An unencrypted VA computer containing the personal information of
approximately 26.5 million veterans and veterans’ families was stolen from the home of a VA
employee (EPIC, 2006). It was estimated that no one was personally impacted by the data lost,
but the information would have been invaluable for an OCR intelligence operations (Ibid).
Instances of hardware collection are few and far between, but software collection is much
more prevalent. Software collection on digital resources can be done a multitude of ways. The
most dangerous method toward LEAs is similar to that used on wireless communications; a
virus. Malicious software, or malware, can be installed onto a workstation to monitor
communication or data and send that information to third party for analysis.
Another effective method is to hack a LEA work station. One example is a large scale
hack launched against LEAs in 2011. A group of hackers stole approximately 10 gigabytes worth
of personal information from more than 70 LEAs and posted the information publicly (Millis,
2011). Those responsible for the data leak were brought to justice, but the incident brings to light
the seriousness of digital assets.
As serious as these instances seem, OCRs are limited in their ability to employ SIGINT
for a few reasons. The technical skill and experience to collect and analyze SIGINT is
astounding. Second, it is difficult to acquire the resources necessary to accomplish these tasks.
Many high end software packages for decryption, hacking, or surveillance are strictly controlled
and are difficult to obtain. Lastly, many digital assets have counter measures put in place.
Network security engineers’ sole purpose is to protect digital assets from individuals interested
in breaching digital assets.
Crime Ring Use of IMINT
As stated earlier, IMINT is any form of intelligence that depends on an image for intel
(ODNI, 2014). These images include radar images, thermal images, and standard camera based
images (ie, satellite, drone, or human based photography) (Ibid). OCRs are limited on radar and
satellite based imagery but are capable of drone and human based photography.
Unmanned Aerial Vehicles (UAVs), or drones, are defined by the U.S. Department of
Defense (DoD) as, “… powered, aerial vehicles that do not carry a human operator, use
aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be
expendable or recoverable, and can carry a lethal or nonlethal payload…” (Bone & Bolkcom,
2003). DoD application of drones are much different than that of an OCR, but the principle is the
same. As the definition states, a drone “can carry a lethal or nonlethal payload…” (Ibid). The
nonlethal payload of a drone could be an imagery pod capable of infrared or standard imagery
capabilities. In the United Kingdom, criminals are reported using commercially purchased
drones with infrared capabilities to locate marijuana farms and steal the crops (Withnall, 2014).
Drones with these capabilities cost approximately $2,000 U.S. for the drone and 5745 euros for
the camera system, totaling approximately $10,000 U.S. (Drone Jungle, 2014 & Steadi Drone,
2014).
OCRs have endless uses for a drone system like the one listed above. These applications
are not limited to peer-to-peer operations, but could also be used against LEAs. Scott Stewart,
VP of Tactical Analysis for STRATFOR, discusses in his article “Recognizing Criminal
Surveillance” a cycle in which criminals conduct surveillance on a target before acting upon their
target (Stewart, 2014). Criminals heavily rely on having eyes on a target before executing an
Knox
30
operation (Ibid). A drone could be used to assist with the surveillance component of an
operation.
Human based photography is not as effective as satellite or drone based photography, but
is still a valuable source of IMINT for any organization. Human based photography relies on
someone collecting IMINT through the use of a hand held camera. Due to the close nature of
human based photography, its applications are limited and narrow. Most human photography
operations require an individual to be very close to the object of interest, creating a situation
where the risk of obtaining a useful picture is not worth the cost of failing.
Crime Ring Use of Other MASINT and GEOINT
As stated earlier, MASINT is measurement and signature intelligence and GEOINT is
geospatial intelligence (ODNI, 2014). MASINT focuses on the signatures and characteristics of a
given piece of information and GEOINT is any intelligence gained through geospatial assets
(Ibid). MASINT and GEOINT are shrouded in a cloud of secrecy due to their technical and
dangerous nature. Due to the high cost and exclusivity of these two INTs, OCRs can only use
them in a highly limited capacity, although it is more common that then cannot use them at all.
What would it look like if OCRs could use these assets? If an organization had
information regarding the specific signature of a radio transmission (an application of MASINT)
they could block or sabotage the signal. One step further, if an organization has information
about the signature of a city’s power source (another application of MASINT) they could bring a
town/city/district/state/nation to its knees by crippling the power grid. Furthermore, if an OCR
had access to GEOINT resources, they could use IMINT and SIGINT to the same level as
military and government agencies. This would result in more damage than could be effectively
explained. Not only would OCRs have the resources they needed to collect intelligence against
LEAs, but they would also have the necessary resources to protect their information against
LEAs. The end result would be OCRs operating at a military level.
OCR Use of OSINT and HUMINT
OCR use of OSINT and HUMINT is very similar to that of LEAs. OSINT is open source
intelligence that focuses on collecting information from open sources such as press releases,
news broad casts, scholarly publications, and any information posted in an open arena (ODNI,
2014). A strong example of OSINT is this paper. All information in this paper was taken from
public domain, making it an assimilation of open source information. Information such as L.E.A.
locations, work forces, ethics, equipment, areas of operation, organizational structure, and even
phone numbers can be found using simple OSINT search techniques.
OSINT can provide a lot of information, but there are two things to recognize about
OSINT. Information obtained by OSINT is not always accurate. Many organizations recognize
that OSINT is a productive intel method, therefore counter measures are put in place to protect
sensitive information. Additionally, OSINT by itself is not very useful. OSINT can support other
intelligence operations in giving an organization direction or in edifying information, but can
rarely provide enough information to make a sound operational decision.
HUMINT is human intelligence, or intelligence that was gained through interpersonal
interaction (ODNI, 2014). HUMINT could be information obtained by listening to a law
enforcement officer discussing operational plans or capturing a law enforcement member and
Organized Crime
31
interrogating him/her for valuable information. HUMINT is a source that produces some of the
most valuable information. Due to the interpersonal nature of HUMINT, OCRs use it almost
identically as law enforcement organizations. OCRs collect HUMINT through covert actions
(under cover informants), simple collection (having a collector observe people), and counter
actions (baiting and observing the reaction), just as LEAs conduct HUMINT operations.
Conclusion
In summary, organized crime rings are capable of executing many of the same
intelligence techniques as law enforcement agencies with the exception of a few resource
intensive methods. OCRs are limited in SIGINT, IMINT, MASINT, and GEOINT due to the
price and exclusivity of these sources whereas they are highly capable of executing HUMINT
and OSINT operations.
OCR SIGINT operations include but are not limited to observing telecommunications
traffic and collecting digital intelligence from LEAs. When observing telecommunications
traffic, OCRs are capable of intercepting tethered communications through the use of a wire tap
and wireless communications through the use of malicious software. When collecting digital
intelligence, digital intelligence falls into the category of hardware collection and software
collection. Hardware collection is when an individual removes a physical component of a digital
device and extracts useful information from it. Software collection is when an individual either
hacks or uses malicious software to break into someone’s computer and steal their information.
IMINT operations include drone and human operations. Drone operations require a UAV
equipped with an imagery pod (normal or thermal) which the OCR uses to collect an image of an
area. Human operations require a person on the ground taking pictures of an item of interest.
There are no recorded instances of OCRs using MASINT or GEOINT, but it could be
detrimental if an OCR executed either. Finally, OCRs are highly capable of executing OSINT
and HUMINT to the same capacity as LEAs.
When looking at the entire intelligence situation with OCRs, it becomes apparent that
OCR capabilities are a national threat to LEAs. In order to remedy this threat, LEAs should
increase counter intelligence operations, have measures in place to intercept possible OCR
collection, and insure all personnel are educated in proper operational security (OPSEC)
procedures. According to the Office of the National Counter Intelligence Executive, the spirit of
counter intelligence is to defensively protect an organization’s information by offensively
disrupting another organization’s intelligence collection (ONCE, 2010). It could be argued that
LEAs are already disrupting OCR intelligence collection, but more should be done in all areas to
secure information. Whether it be closely controlling information which LEAs publish,
encrypting digital work stations, or being aware of assets that could be observed, all essential
areas should be more secure.
Beyond securing information, there is much to be said about intercepting criminals when
they are trying to collect information. SIGINT assets could be secured by employing software
countermeasures to intercept possible information breaches before they occur. Another strategy
for interception is to correlate information and leverage the correlation to better focus
intelligence operations for the LEA. The possibilities for interception are endless, but it is
undisputed that more measures should be in place.
Counter intelligence operations and intercepting criminal collection are two excellent
ways of hindering OCR operations, but if there is no operational security protocol, no counter
Knox
32
operations will succeed. The U.S. Department of Defense Education Authority defines
operations security (OPSEC) as, “the process by which we protect unclassified information that
can be used against us…” (DoDEA, 2014). In essence, OPSEC is the practice of securing key
operational details at all levels, be it interpersonal, digital, or hard resources such as paper (Ibid).
Many LEAs have OPSEC practices, but there should be a drastic increase. Many people are
familiar with the household saying, “loose lips sink ships…” In any organization, carelessness
can lead to an operational downfall.
At the end of the day, understanding how OCRs conduct intelligence operations is
important because with an understanding of what they are doing, it is very easy to disrupt their
operations. In the article Demystifying the Criminal Planning Cycle, Scott Stewart brings to light
a fundamental concept that many people miss (Stewart, 2014). Stewart asserts that if an
individual or organization can disrupt the criminal cycle before an action is conducted, much
damage can be avoided (Ibid). Understanding the ways OCRs operate allows LEAs to better
disrupt OCR operations, thus better protecting and serving the population as a whole.
Organized Crime
33
References
Bimfort, Martin. “A Definition of Intelligence.” Central Intelligence Agency. September 18,
1995. Accessed November 3, 2014.
Bone, Elizabeth, and Christopher Bolkcom. Report for Congress; Unmanned Aerial Vehicles:
Background and Issues for Congress. 2003.
Boyle, Ashley. “The US and Its UAVs: A Cost-Benefit Analysis.” American Security Project.
July 24, 2012. Accessed November 4, 2014.
Clapper, James R., Statement for the Record Worldwide Threat Assessment of the US
Intelligence Community Senate Select Committee on Intelligence, Washington: Office of
the Director of National Intelligence, 2014
DoDEA. “Operations Security (OPSEC).” U.S. Department of Defense Education Activity.
2014.
Accessed November 12, 2014.
EPIC. “Veterans Affairs Data Theft.” Electronic Privacy Information Center. 2006. Accessed
November 10, 2014.
FBI. “The Federal Bureau of Investigation: Organized Crime Glossary of Terms.” The Federal
Bureau of Investigation. 2013. Accessed November 3, 2014.
FBI. ”FBI Arrests StealthGenie Mobile Spyware App Maker, Disables Website.” FBI.
September 30, 2014. Accessed November 10, 2014.
“JK Audio CellTap – Wireless Phone Interface from Cellphone to Audio Input Devices.” B&H
Photo and Video. January 1, 2014. Accessed November 10, 2014.
Lombardo, Robert. Organized Crime in Chicago : Beyond the Mafia. Champaign: University of
Illinois Press, 2012. 151-159.
Magnuson, Stew. “Military Wrestles with the High Cost of Satellite Terminals.” National
Defense Magazine, February 1, 2014.
Matthews, Chris. “Fortune 5: The Biggest Organized Crime Groups in the World.” Fortune,
September 14, 2014.
Millis, Elinor. “AntiSec Hackers Post Stolen Police Data as Revenge for Arrests.” CNET,
August 6, 2011.
ODNI. “ODNI FAQ: About the Intelligence Community.” Office of the Director of National
Intelligence. 2014. Accessed November 4, 2014.
ONCE. “What Is Counter Intelligence?” Office of the National Counterintelligence Executive.
September 1, 2010. Accessed November 11, 2014.
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Perry, William. Information Warfare: Assuring Digital Intelligence Collection. Hurlbert Field:
JSOU Press, 2009. 4-8.
Stewart, Scott. “Demystifying the Criminal Planning Cycle.” STRATFOR. April 3, 2014.
Accessed November 12, 2014.
Stewart, Scott. “Recognizing Criminal Surveillance.” STRATFOR. April 10, 2014. Accessed
November 11, 2014.
“Tali H500 Drone.” Drone Jungle. 2014. Accessed November 10, 2014.
http://www.dronejungle.com/tali-h500-drone/.
“Thermal Imager Optris PI 400 Lightweight Kit.” Steadi Drone. January 1, 2014. Accessed
November 10, 2014. http://www.steadidrone.eu/product/optris-pi-400-lightweight-kit/.
Whitney, Lance. “Android Snags Record 81 Percent of Smartphone Market.” CNET. October 31,
2013. Accessed November 10, 2014.
Withnall, Adam. “Criminals ‘Using Unmanned Drones and Infrared Cameras to Find Illegal
Cannabis Farms’ – and Then Steal From the Growers.” The Independent. April 17, 2014.
Accessed November 10, 2014.
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PROFESSOR
REPLY
You brought up that information should not be eliminated. Do you feel that people should be able to be removed from the database?
HELLO THIS WILL BE A 150 TO 200 W0RD COUNT WITH REFERENCE PLEASE READ EACH STUDENT AND PROFESSOR QUESTION AND RESPOND BACK TO THEM. IF YOU DON’T UNDERSTAND SOMETHING JUST REACHOUT AND I WILL TRY AND GUIDE YOU……
STUDENT REPLIES
STUDENT REPLY #1 Callie Sanchelli
My local law enforcement uses the state-wide definition of gangs and gang members to help define if the offender they have caught could potentially be related to a gang. That definition is the use of a common symbol or name, and the members engage in a pattern of criminal activities. In doing my research on local law enforcements use of gang related databases I found that a database called “GangNet” was at one time was in use and became a long list of gangs around the area yet was shut down in 2011 due to the department believing the criminal activity was more than just being a gang issue and need to look at each offender individually. Currently the department does not rely specifically on a gang database, rather they use a crime mapping database that lists locations times and what type of crime was committed so if there is a certain pattern happening, they will be able to visually see it throughout the community.
Pros
of using a database would be seeing a list of potential gangs in the community and descriptions of them which could include the type of crimes normally committed by the gangs, what symbols they use to mark their criminal activity and or if the gang goes by a name.
Cons
of using this type of database would be that the information could be so broad that many different gangs could it the exact same description and even with the information it could be difficult to arrest members. I think gang databases can only aid in the arresting and shut down of these gangs and decrease the amount of criminal activity in these communities that are notorious for having gang related crimes occur.
Reference
Nelson, T. (2019, July 13). GangNet terminated by Ramsey County Sheriff. MPR News. https://www.mprnews.org/story/2011/08/03/gangnet
Office of the revisor of statutes. Sec. 609.229 MN Statutes. (n.d.).
https://www.revisor.mn.gov/statutes/cite/609.229
STUDENT REPLIES
STUDENT REPLY #2 Angelica Moreland
How do your local law enforcement officers identify potential gang members?
I live in a town right outside of Houston in Montegomery County. Montegomery County created a gang investigation unit better known as (GIU) in 2014. Gang members are distinguished from ordinary criminals with markers, such as hand signals, tattoos, and evidence that an individual recruited new gang members.
• Does law enforcement in your community rely on a gang database?
“The gang intervention unit does have a database that is provided from the Department of Public Safety… We put all of our gang members in that database, and that’s how we keep up with them.”
• What are the pros and cons of using a gang database?
Pros
Helps curb crime
Helps being identified through color, tattoos, signs, and symbols
Cons
Discriminatory- brown and black men are overly represented in the database.
Error Ridden- Gand database are notoriously error-ridden.
Over-inclusive- there are no uniform criteria for adding someone to a gang database, and the criteria can be minimal and unrelated to a criminal activity.
Barrier to unemployment- because being included in a gang database can appear in a background check, it can create a barrier to employment and result in long periods of unemployment.
• Should gang databases continue to be used to combat gang-related activities? Why or why not?
Yes, the gang database should be used to combat gang related activities. However, there are a lot of improvements that need to be made within the database. The database should track the activities of the gang while having a checks and balance process in order. When reading this information, I noticed there are a lot of errors but there is also some good with the gang databases.
Reference
https://localprogess.org/wp-content/uploads/2021/04/2020-lp-policy-brief-gang-database
www.communityimpact.com/austin/news/2015/12/09/more-gangs-identified-in-montgomery-county-2