The New York Times Magazine featured an article around the life of a former gang member and addict, Dr. Jesse De La Cruz, who currently serves as an expert witness in some California jury trials. His testimony has convinced juries on some occasions that a person is not a gang member. That’s not to say that the defendant was not convicted of a crime; it’s just that he wasn’t convicted of being a gang member.
How Do You Define a Gang Member? http://www.nytimes.com/2015/05… The New York Times Magazine.
DANIEL ALARCÓN. May 27, 2015. The article is an eye-opener for those who think they can spot a gang member a mile away.
All fifty states and the District of Columbia have enacted some form of legislation in which a person can be charged with being a gang member or some related crime – such as state level RICO laws. Some larger cities have created ordinances as well, like Chicago. In Iowa, “Criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” It’s a class “D” felony for anyone to “actively [participate in] or [be] a member of a criminal street gang” or to be associated “with any criminal street gang.”
In State v. Walker, 506 NW 2d 430 (Iowa 1993), Iowa’s Supreme Court ruled that the Iowa statute, on its face, is constitutional. The statute, Iowa Code Chapter 723A, created in 1990 within Senate File 2413, a bill with a title longer than the content of many bills introduced in the Iowa General Assembly.
In Friday’s [July 10] Des Moines Register, a paragraph quotes Sergeant Jason Halifax of the Des Moines Police Department as he addresses the issue of downward trending homicides in Iowa’s largest city.
He said:
The overall drop in homicides is likely due to Iowa criminalizing gang participation in 1990 and the Des Moines force obtaining federal money to start a gang unit, he said.
Since then, it appears gang violence has cooled as members are less likely to flaunt their affiliation and risk being charged under that law, Halifax said.
Sgt. Halifax is speaking on a hunch. But he may be more accurate than you think. According to the Iowa Justice Data Warehouse [information provided by Steve Michael, Division Administrator of the Department of Human Rights – Division of Criminal and Juvenile Justice Planning], convictions of criminal gang participation grew from one in 1992, two years after enactment of the statute, to 22 in 1994, two years later. Convictions have dropped off over the past twenty years to average a little less than 8 per year.
A startling statistic is the number of persons convicted of “Gang Recruitment”. Since the act of recruitment was created in 1995, there have been 10 convictions. But the first conviction didn’t occur until 2006 – 10 years after the legislation was deemed necessary. In that year, there were a total of 3 convictions. The only other years with convictions of recruiting gang members were 2011 (4 convictions) and 2013 (3 convictions). All three years with a recruitment conviction also showed a decrease in convictions for gang membership in the previous year.
We searched for an appeal court challenge to Iowa Code section 723A.3 – Gang Recruitment , and could find nothing. The language of the law invites questions about vagueness, overbreadth, and Freedom of Speech and Association. However, case law in Florida, Texas and California has determined that similar statutes can hold up to constitutional challenges. In each case, the usual federal case law that addresses strict scrutiny of these constitutional matters was obviously missing. It was substituted with lesser known case law.
Wouldn’t it be interesting to sit in on a jury trial where a defendant was facing a charge of criminal gang participation, or gang recruitment? It would sure beat the dullness of a trial in which a corporate mogul was facing a charge for polluting our waterways or air.