Criminal Street Gang Activity, Initiation and Solicitation

Testimony of Rahul Saksena on behalf of the New York Civil Liberties Union before the New York City Council's Committee on Public Safety regarding Int. No. 183-A: In Relation to Criminal Street Gang Activity, Int. No. 941-A: In Relation to Criminal Street Gang Initiation Activity, and Int. No. 954-A: In Relation to Criminal Street Gang Solicitation. My name is Rahul Saksena.[1] I am legislative counsel with the New York Civil Liberties Union (NYCLU).  The NYCLU is the state affiliate of the American Civil Liberties Union.  The NYCLU is dedicated to protecting and enhancing New Yorkers’ civil rights and civil liberties as articulated in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. I present testimony today primarily on Int. No. 183-A, which would create the crime of criminal street gang activity, but I would also like to comment briefly on Int. No. 941-A, which would create the crime of criminal street gang initiation activity, and Int. No. 945-A, which would create the crime of criminal street gang solicitation. The NYCLU agrees with the central idea upon which these three bills are premised:  that persons have a right to be secure and to be protected from fear and harm caused by violent groups and individuals.  The recent death of Sadie Mitchell in the Bronx is a painful reminder of what violence (including gang violence) can do, and my heart goes out to Ms. Mitchell’s family, friends, and community. It is not clear whether Ms. Mitchell’s death was caused by gang activity.  But even if it were, it is the NYCLU’s position that the proposed legislation is not an effective approach to preventing gang-related crime.   Our concerns are three-fold. First, the state penal code gives police and prosecutors ample grounds on which to prosecute those responsible for what happened to Ms. Mitchell and others who are harmed by street gang violence.  For example, an individual who commits a crime in concert with one or more persons can be prosecuted under the state’s conspiracy laws.  An individual who solicits a crime in concert with one or more persons can be prosecuted under the state’s conspiracy and solicitation laws.  An individual who engages in harmful initiation activities can be prosecuted under the state’s hazing laws.  If he or she hazes in concert with one or more persons, they can all be prosecuted for conspiracy, too.   An individual who helps another commit a crime can be prosecuted for facilitation. Second, we believe enactment of the proposed “street gang crimes” will lead to unwarranted police actions directed at persons engaged in lawful conduct. And finally, the introduction of these bills is an indication the City is failing to pursue affirmative strategies – employed in cities such as Boston and Chicago – that can be effective in intervening with young people who may susceptible to involvement in criminal gang activity. I.  Int. No. 183-A:  In Relation To Criminal Street Gang Activity I will begin by addressing Int. 183-A, which would create a new A-misdemeanor offense for “engaging in criminal street gang activity.”  The NYCLU respectfully submits that the proposed law is flawed in several respects.  We are concerned that the imprecision of the bill’s terminology will create confusion in applying that law, and that this confusion will lead to unauthorized police practices targeted at low-income communities of color.

The proposed law would employ terminology and definitions that are vague and will therefore lead to misinterpretation by those charged with enforcing the law.

The penal code is intended to establish rules that clearly define prohibited conduct; and to give unambiguous direction to law enforcement officials regarding what constitutes a criminal act.  The proposed legislation fails to meet these standards. The bill defines a “criminal streetgang” as:

a group of three or more persons having as one of its substantial activities or purposes the commission of one or more of the felonies or misdemeanors defined in any of the following articles of the penal law: [list omitted] (Section 10-168(a)1.)

The bill then provides that a person who is a member of such a gang, and who knows that this group of persons is in fact a gang, is criminally liable if he solicits another to join the gang for a criminal purpose. It is not difficult to foresee that this language would create (if not encourage) opportunities for misguided and unwarranted police action. First, the bill is premised on the notion that gangs have discrete organizations, easy to identify.   They are not.  Gangs are complex organizations in their structure and mission; and gangs are no less complex in terms of the status and activities of their members.  Professor David Cole, an expert on gang culture, has written, “it is undoubtedly the rare gang that engages exclusively in illegal behavior.  . . .  [Gangs] also provide social activities and networks of support to their members.  They provide for their members much as fraternities, sororities, basketball leagues. . . .  Some gangs engage in political activity, working for community development, voter registration, and civil rights.”[2] Another student of gang culture in the United States, Professor Richard Curtis, has observed that gangs like the Netas functioned “as an alternative family that prescribed rules and justifications for behavior, thereby bringing order and structure into potentially unmanageable social and emotional situations. For those who had histories of substance abuse or who were infected with HIV, the gangs functioned as vital support networks.”[3] This is not to deny that certain gangs and certain gang members are involved in criminal activity, but rather to bring attention to the fact that a person who appears to be affiliated with a gang may not be – and to the extent he is involved, that involvement may have nothing to do with the gang’s allegedly criminal conduct.[4] However, the police may not be inclined to make such distinctions – or to make much of them – when the law sets out so imprecisely the indicia of criminal suspicion. Second, the bill directs police to make determinations about gang-related crime based upon elusive factual criteria.  Membership in gang is an element of the gang activity crime.  How is a police officer to determine membership status?  And assuming this has been established, how will a police officer determine when a gang member’s solicitation of another has an innocent, lawful purpose, as opposed to one that is unlawful. The fact is the proposed law will lead cops to impute suspicion to individuals and to conduct based on little more then one’s association with others in a community.  As a practical matter, the bill tells police to consider criminally suspect the simple act of entering a residence or community center that is considered gang territory, or conversing with someone whose clothing seems to indicate gang affiliation.  And it can be predicted with a degree of certainty that almost all of these suspects will be brown or black.

The proposed law, if adopted, will lead to selective policing and prosecution based on race and ethnicity

The NYCLU is concerned that the new gang crime law will be enforced selectively in communities of color.  The City Council cannot ignore that a foreseeable consequence of enacting a criminal sanction framed with such breadth and ambiguity is the increased surveillance, criminal investigation and arrest of young black and Latino men and boys for conduct that is entirely lawful. The NYPD already stops and frisks hundreds of thousands of law-abiding New Yorkers every year, the vast majority of whom are black and Latino.  More than half a million New Yorkers were stopped by police last year, almost ninety percent of whom were entirely innocent of all wrong-doing and released without any further police action.  Of those stopped, almost ninety percent were people of color.  An analysis by the NYCLU reveals comparable stop-and-frisk statistics each year since 2004.[5] Similarly, a 2001 report issued by the CCRB found that, as compared with whites, African Americans were approximately twelve times more likely to have been stopped by an officer using physical force, and approximately forty times more likely to have been stopped by an officer using a gun.[6] The CCRB found that civilian complaints related to street stops were twice as likely to be substantiated as compared with other types of complaints, and that street-stop complaints filed by African Americans and Latinos were more likely to be substantiated, and less likely to be exonerated or unfounded, than street-stop complaints filed by whites.[7]

Racial bias is also evident in New York City’s marijuana arrest data: although whites use marijuana at least as often as blacks, the per capita arrest rate of blacks for marijuana offenses in New York City between 1996 and 2006 was nearly eight times that of whites.[8]

These statistics indicate a stark racial bias in New York City police practices.  The proposed gang recruitment bill would exacerbate the problem by directing police to consider criminally suspect an individual who in some vague, imprecise manner is perceived to be involved with gang-related activity.

The allocation of police resources to investigate recruitment of suspected gang members may divert attention and resources from other interventions that have proved effective in reducing unlawful gang-related activity.

If  the objective is to steer young people away from criminal activity, then the solution requires an examination of the underlying dynamic that leads to such activity – and the adoption of strategies that can create a dynamic that promotes a more positive outcome. In fact, relying primarily on a law enforcement strategy to deter unlawful gang activity may prove counterproductive.  A recent report by the Justice Policy Institute concluded that “heavy handed suppression efforts can increase gang cohesion and police-community tensions, and they have a poor track record when it comes to reducing crime and violence.”[9] Indeed, the report cited the failure of gang suppression tactics in cities like Chicago, Los Angeles, Detroit, and St. Louis.  Notably, the report states:

One city that never embraced the heavy-handed suppression tactics chosen elsewhere has experienced far less gang violence.  In New York City, a variety of street work and gang intervention programs were fielded decades ago during a period when gang violence was on the rise.  These strategies were solidly grounded in principles of effective social work practices that fall outside the realm of law enforcement, and they seem to have helped dissuade city policy makers and police officials from embracing most of the counterproductive gang suppression tactics adopted elsewhere.  No seasoned New Yorker would deny the existence of street gangs.  But gang-related offenses represent just a tiny blip on the New York crime scene.[10]

We urge the members of this committee to ask themselves this question: by allocating police resources to investigate gang recruitment, what effective, non-prosecutorial strategies for preventing unlawful gang activity are being overlooked?  Instead of promoting gang suppression and law enforcement tactics, New York City should reinstitute (or reinvigorate) programs that have proved successful in the past.   This includes authorizing health and human services agencies to promote job training, education, and health, and to remove barriers that prevent former gang members from reintegrating into the larger community. In the past, the NYPD has participated in such education and prevention programs, including the Gang Resistance Education and Training (GREAT) program, that have proven effective, but are underutilized.[11] GREAT has been incorporated into school curricula in forty-seven states.  The nine-week program provides students with tools to resist the lure of criminal gang activity, teaching students conflict resolution skills, cultural sensitivity, and the negative aspects of gang life. Results from a survey of 5,935 eighth-grade students in 11 sites indicate that students who completed the program had more positive attitudes and lower rates of some types of delinquent behavior than did students in the comparison group.[12] These students reported lower levels on all measures of gang affiliation and self-reported delinquency, and these differences were often statistically significant.  Program participants had significantly lower rates of drug use and minor delinquent offenses.[13] In light of these findings, it would seem that any City Council initiative that seeks to address criminal gang activity would incorporate some greater investment in prevention strategies.  Innovative programs have been introduced in cities nationwide.  However, the scholarly literature indicates that such programs are underutilized.[14] Finally, we urge that City Councilmembers learn about an innovative program launched in the City of Chicago to combat the problem of youth violence that has plagued that city.  Chicago has seen youth violence increase despite “hauling even larger numbers of children off to jail.”[15]  In response, the city recently announced a new approach to youth violence that is aimed at solving the underlying problems that lead young people to gang violence, rather than expediting their involvement in the criminal justice system.  The program focuses on helping at-risk students by offering them jobs and counseling.  It pairs local advocates with these young people, giving them an opportunity to develop a constructive relationship with an adult.  The Chicago model for addressing gang activity favors “mental health strategies and prevention over policing and punishment.”[16] The Chicago model comes with a significant price tag, but New York City already spends significant amounts of money aggressively policing persons engaged in lawful activity, as well as low-level, nonviolent offenses such as marijuana possession.  Why not allocate a small share of that budget to steering individuals away from gang activity and toward a successful life path. The foregoing analysis leads us to call on the City Council to withdraw the proposed legislation and to pursue non-prosecutorial strategies for preventing gang-related crime.

II. Int. No. 941-A:  In Relation To Criminal Street Gang Initiation Activity and Int. No. 945-A:  In Relation to Criminal Street Gang Solicitation

The concerns about vagueness and imprecision in the language of Int. No. 183-A also apply to the two related bills (Int. No. 941-A and Int. No. 945-A), which involve initiation and solicitation activity.   The problem here is that the definition of “criminal street gang” is incorporated in each of the bills.  In addition we find that Int. No. 941-A and Int. No. 945 are inconsistent with the state legislature’s intent as regards similar provisions in the New York Penal Law.  Further, we believe that Int. No. 945-A criminalizes the same conduct as Int. No. 183-A. Int. No. 941-A and Int. No. 945-A punish as class A misdemeanors conduct that is punished as a violation in state law.   Significant penalty enhancements for relatively minor offenses are thus inconsistent with provisions of the New York Penal Law and raise a question as to whether the city is preempted from enacting the proposed legislation. Under New York State Law, “hazing” is already an established crime.[17] A person, who, in the course of another person’s initiation into or affiliation with any organization, intentionally or recklessly engages in conduct that creates a substantial risk of physical injury to such other person or a third person, is guilty of hazing in the second degree.  Under state law, this conduct is punished as a violation.  By contrast, under Int. No. 941-A, titled “Criminal street gang initiation activity,” a person who engages in the exact same conduct in New York City would be guilty of a class A misdemeanor.  Under the New York State law, only hazing in the first degree—which requires an actual injury—is punished as a class A misdemeanor. Similarly, under New York State Law, “solicitation” is an established crime. [18] Criminal solicitation in the fifth degree – the intentional solicitation of another to commit a misdemeanor or other non-felony – is a violation under state law.  By contrast, under the proposed Int. No. 945-A, titled “Criminal street gang solicitation,” a person who, in concert with another, intentionally solicits another person to commit a misdemeanor or other non-felony is guilty of a class A misdemeanor. These increased penalties are not likely to have an increased deterrent effect.  But the City would be punishing low-level conduct as a far more serious offense than under state law.  This not only raises the issue of preemption; as a practical matter the enactment of criminal standards for New York City that depart significantly from the state’s criminal law will create confusion for police, prosecutors, defense attorneys, and judges. Int. No.  945-A criminalizes the same conduct as Int. No. 183-A Under Int. No. 183-A, a person is guilty of "engaging" in criminal street gang activity when he solicits another to join the gang, provided that the purpose of the solicitation is to commit one of the enumerated crimes.  Under Int. No. 945-A, a person is guilty of "gang solicitation" when he solicits another to commit one of the same specified crimes.  Essentially, the elements of Int. Nos. 183-A and 945-A are the same, thus creating redundancy.  Both bills require that a person: (1) is a member of "criminal street gang" and (2) solicits another to commit one of the crimes specified in bill. Moreover, this person can also be charged with solicitation under State law, since by definition he has worked "in concert with another."  This further redundancy will create even greater confusion for police, prosecutors, defense attorneys, and judges. We urge the City Council not to proceed with Int. Nos. 941-A and 945-A.

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[1]  This statement is based, in part, on NYCLU testimony presented in 2003 regarding similar legislation (Int. 364-A). [2] Cole,  supra note 3, at 222. [3] Ric Curtis, “The Negligible Role of Gangs in Drug Distribution in New York City in the 1990’s,” in Gangs and Society, Alternative Perspectives, Louis Kontos, David Brotheron, Luis Barrios, eds., at 50.  New York: Columbia University Press (2003).  [4] See Richard Ball and David Curry, “The Logic of Definition in Criminology: Purposes and Methods for Defining ‘Gangs’,” Criminology 33 (2) (May 1995).  (“ class=desc>Administrators may care less about the theoretical power or empirical applicability of a definition than the fact that it is simple enough to impose bureaucratic standardization for purposes of recordkeeping, and police may be interested primarily in an expedient definition allowing them to hold the collectivity responsible for criminal acts of individual members or vice versa.”) [5] In 2008, 531,159 New Yorkers were stopped by the police, 88 percent of whom were completely innocent.  Of those stopped, 51 percent were black, 32 percent were Latino, and 11 percent were white.  In 2007, 468,732 New Yorkers were stopped by the police, 87 percent of whom were innocent.  Of those stopped, 52 percent were black, 31 percent were Latino, and 11 percent were white.  In 2006, 508,540 New Yorkers were stopped by the police, 90 percent of whom were completely innocent.  Of those stopped, 53 percent were black, 29 percent were Latino, and 11 percent were white.  In 2005, 399,043 New Yorkers were stopped by the police, 88 percent of whom were completely innocent.  Of those stopped, 49 percent were black, 29 percent were Latino, and 10 percent were white.  In 2004, 315,483 New Yorkers were stopped by the police, 89 percent of whom were completely innocent.  Of those stopped, 50 percent were black, 29 percent were Latino, and 9 percent were white. [6] CCRB, Street Stop Encounter Report: An Analysis of CCRB Complaints Resulting from the New York Police Department’s “Stop & Frisk” Practices, June 2001. [7] Ibid. [8] Harry G. Levine and Deborah Peterson mall, class=apple-converted-space>  >"Marijuana Arrest Crusade, Racial Bias and Police Policy in New York City, 1997-2007," April 2008.  Between 1996 and 2006, there were 353,000 marijuana possession arrests in New York City.  Fifty-two percent of those arrested were black, 31 percent were Latino, and only 14 percent were white. [9] Judith Greene and Kevin Pranis, “Gang Wars: The Failure of Enforcement Tactics and the Need for Effective Public Safety Strategies,” Justice Policy Institute 7 (2007). [10] Ibid. [11] Finn-Aage Esbensen and D. Wayne Osgood, “Gang Resistance Education and Training (GREAT): Results from the National Evaluation.” The Journal of Research in Crime and Delinquency 36 (2), 1999. [12] Ibid. [13] Ibid. [14] See James Diego Vigil, “Streets and Schools: How Educators Can Help Chicano Marginalized Gang Youth,” Harvard Educational Review, 69(3), Fall 1999.  “Prevention, intervention, and suppression strategies provide a logical, flexible balance for addressing the needs and problems of children from marginal gang backgrounds. At present, however, schools reflect the visceral sentiments of society at large, which supports suppression as the sole solution to a complicated problem. Thus, prevention and intervention efforts that could be effectively implemented in elementary schools are largely untried, and the limited programs at the middle school and high school level tend to reinforce rather than alleviate gang deviance.” [15] Editorial.  “A Powerful Idea on Youth Violence.” New York Times Nov. 5, 2009. [16] Susan Saulney. “Focus in Chicago: Students at Risk of Violence.”  New York Times Oct. 7, 2009. [17] NYPL § 120.17 [18]NYPL § 100.00