Street Gang Safe Houses: A Survey of State Gang Statutes and the Absence Thereof in America by Sean E. Harris, copyright 2009.

Transcription

1 Street Gang Safe Houses: A Survey of State Gang Statutes and the Absence Thereof in America by Sean E. Harris, copyright 2009 Introduction Firebombing last month attributed to gang violence may have been part of initiation for one female gang member, something that s becoming more common in the city, police said. Dutchess Lykes, 19, reportedly was ordered to throw a Molotov cocktail in order to be accepted into a gang, according to an affidavit filed in Hamilton County General Sessions Court. 1 Police said the cocktails were the result of an ongoing feud between the Bloods and Gangster Disciples gang, and that known Blood members targeted homes of known Gangster Disciples. 2 From drive-by shootings, home invasion robberies, operating prostitution rings, and homicide, Gangs are responsible for a significant portion of the crime in many urban communities and an increasing number of suburban communities across the country. 3 And by whatever name they may be recognized, be it Bloods 4 or Crips, 5 hopefully, through the continued efforts of state legislatures and law enforcement across this nation, all of them will one day be known in a court of law as [A]ny ongoing organization, association or group of three or more persons which has as one of its primary objective or activities the commission of one or more criminal activities. 6 1 Jacqueline Koch, Firebombings Linked to Woman s Gang Initiation, CHATTANOOGA TIMES FREE PRESS (Tennessee), Oct. 17, 2009 at 1 available at LexisNexis and Ms. Lykes and four others face two counts of aggravated arson in connection with Sept. 29 firebombing at two residences on Tomahawk Trail. id. 2 Id. 3 NATIONAL GANG THREAT ASSESSMENT: 2009 ( 2009) 8, 4 Id. at 25. There are an estimated 7,000 to 30,000 Bloods members in the U.S. with Bloods gangs being active in 33 states. Id 5 Id. There are an estimated 30,000 to 35,000 Crips members with Crips Gangs operating in 41 states. Id. 6 VA. CODE ANN (West, Westlaw through end of 2009 Special Sess. I).

2 2 This article will survey certain state gang statutes and examine whether state legislatures have provided those statutes addressing gang activity in order to determine if those states lacking such statutes should take action due to a gang presence in its state. Section I presents the current status of gangs in the United States, the types of crimes they commit, and the participation of juveniles in gangs. Section II discusses gang initiation and recruitment. Section III gives an introduction to the responses that have been given legislatively to the areas discussed in Sections I and II and explains generally what an antirecruitment and gang participation statute is. Section IV analyzes those states in the United States that lack one of the three areas of gang statutes under analysis, those being a statutory definition of a gang, a statutory penalty for gang recruitment, a statutory penalty for gang participation, or in the alternative to a penalty for gang participation, a sentencing enhancement. This section is broken down by region in which a brief overview for gang activity in the region is discussed, followed by an analysis of each individual state lacking one or more of the gang statutes subject to this article, noting the statutes the particular state has, those it lacks, and whether there is gang activity or a gang presence in the state. Section V briefly discusses an area for future research. Section VI will then discuss the statutory forms states should either adopt outright if they are lacking statutes or change to if they already have some form of statute in place. Acknowledgement This article was inspired by, and builds off of Chapter 14 of Lentz School Security, by Mary A. Lentz who presented an overview of 14:2. State laws and gang activity ; an article which provides a comparison of gang statutes from several, but not all, states; including gang

3 3 definitions, recruitment, school policies, and property seizures related to gangs. 7 While her actual analysis was not utilized in the writing of this article, the idea of comparing statutes and conducting a statutory survey would not have come about without her initial work. However, before discussing the results of the statutory survey conducted for this article and whether or not gang activity is present in the states lacking one or more of the statutes surveyed, some background information on gangs is necessary. Section I. Overview of Gangs Juvenile gangs have been in the United States since the 19 th Century 8 with what is believed to be the first youth gang in the country forming in the 1820s. 9 But what is a gang exactly? The National Gang Center cites to criteria used by several researchers in addressing that very question, criteria including that The group has three or more members, generally aged Members share an identity, typically linked to a name, and often other symbols. Members view themselves as a gang, and they are recognized by others as a gang. The group has some permanence and a degree of organization. The group is involved in an elevated level of criminal activity. 10 The National Gang Threat Assessment for 2009 has found that Approximately 1 million gang members belonging to more than 20,000 gangs were criminally active within all 50 states and the District of Columbia as of September And while the approximation 7 Mary A. Lentz, 14:2. State Laws and Gang Activity, LENTZ SCHOOL SECURITY ( ed.), Westlaw. 8 DONALD J. SHOEMAKER, JUVENILE DELINQUENCY 223 (Rowman & Littlefield Publisher, Inc. 2009) (2009) available at _hfiouyfv7pb1gns0unsy&hl=en&ei=xffisssomyoa8aborpzzaq&sa=x&oi=book_result&ct=result&resn um=1&ved=0casq6aewadgu#. 9 Id. The first youth gang in America is thought to be a gang called the Forty Thieves, which developed in New York City in the 1820s. Id. 10 Frequently Asked Questions About Gangs, (last visited Nov. 26, 2009) (answering What is a gang? on FAQ page). 11 NATIONAL GANG THREAT ASSESSMENT:2009, supra note 3 at iii.

4 4 was later characterized by the assessment as a conservative estimate, these numbers are a 200,000 increase from those in The assessment credited this increase in the number of gang members being identified to four possible sources, which included better reporting by law enforcement and also, a key topic of this discussion, gang recruitment. 13 Aside from strong numbers, as stated earlier, Gangs are responsible for a significant portion of the crime in many urban communities across the country, for in addition to drug trafficking, gangs participate in [A] host of other criminal activities such as auto theft, assault, alien smuggling, burglary, drive-by shootings, extortion, homicide, identity theft, insurance fraud, mortgage fraud, operating prostitution rings, and weapons trafficking. 14 Within this melee of criminality, according to the National Youth Gang Survey Analysis, a web resource reflecting analysis from ongoing National Youth Gang Surveys, 15 as reported in a statistical analysis chart, 36.5% of gang members were under the age of 18 in Also for the year 2006, this resource reflected that adult gang members dominated the makeup of gangs in larger cites, while juvenile gang members dominated the makeup of those in smaller cities and rural counties Id. at 6. Gang membership in the United States was conservatively estimated at 1 million member as of September 2008, based on analysis of federal, state and local law enforcement reporting-an increase from an estimated 800,000 members in Current estimates include approximately 900,000 gang members residing within local communities across the country and more than 147,000 documented gang members incarcerated in federal, state and local correctional facilities, according to state and federal corrections data. Id. 13 Id. The other sources were gang members being released from prison and increased awareness of gangs. Id. 14 Id. at National Youth Gang Survey Analysis, Analysis#tableOfContents (last visited Nov. 26, 2009) (giving a relatively current look at Youth Gang Surveys.) 16 National Youth gang Survey Analysis, (describing the exact percentages reflected in the chart at National Youth Gang Survey Analysis, (last visited Dec. 2, 2009)). 17 National Youth Gang Survey Analysis,

5 5 As these stats have touched on the quantitative side of gang membership, the following section discusses another area related to gang membership, gang initiation and recruitment. Section II. Gang Initiation and Recruitment Gangs use the initiation rite as a means of determining if the inductee is mentally and physically strong enough to be worthy of membership. 18 This article began with the discussion of a gang initiation carried out by firebombing the homes of rival gang members. 19 This was not an isolated incident, nor isolated to the state of Tennessee. 20 In fact potential members can be inducted in a variety of fashions including being Beat in, Sex in, Blessed in, or must commit such crimes as armed robbery, murder, rape or a drive by shooting. 21 Female inductees are frequently sexed in by having intercourse with multiple members of the gang. 22 Worse than that, It has been reported that females, on occasion, have been required to consent to sex with a person known to be HIV positive. 23 In addition to the issues surrounding gang initiation, gang recruitment has been attributed to the increases in membership of gangs 24 and is still being engaged in across the nation, from 43-year old Theodore Olds, who [U]sed his daughter to recruit gang members inside (describing the exact percentages reflected in the chart at National Youth Gang Survey Analysis, (last visited Dec. 2, 2009).). The analysis for 2006 found that persons under 18 made up 64.9% of gangs in rural counties, and 68.4% in smaller cities. Id. 18 Robert Walker, Initiations, (last visited Nov. 26, 2009) (explaining gang initiations). 19 Koch, supra note Two More Arrested in Gang-Related Firebombing of N. Portland Home, On April 22, 2009 an explosive device was thrown into a home with a family of nine inside. Id. It was reported on October 22, 2009 that detectives felt the firebombing stemmed from an attempted gang initiation. Id. The victim claims, in January gang members sprayed his home with bullets. Id. They ve also vandalized his car and threatened four of his son s in an effort to recruit them into a Hmong gang. Id. 21 Walker, supra note Id. 23 Id. 24 NATIONAL GANG THREAT ASSESSMENT:2009, supra note 3, at 6. Increased gang membership is most likely the result of gang recruitment efforts and the release of incarcerated gang members however. Id.

6 6 Fairfax High School, 25 to efforts by the Hmong Gang in Portland, Oregon 26. As for the incident involving Olds, according to the search warrant affidavit, two students have identified Olds and his daughter as attempting to recruit them into the gang. 27 Given the number of gang members in the country, the crimes they commit, and the effects of gang recruitment, the next section will discuss the responses states have made to address these issues legislatively. Section III. Response Many state legislatures, in responses to these issues have taken action in the form of legislation and have defined statutorily what gangs are 28, provided penalties for street gang recruitment 29, and penalties for gang participation either through participation statutes 30, sentencing enhancements 31, or both 32. These three forms of statues were those surveyed state by state for this article and the subject of the remaining discussion. But, before getting to that analysis, in order to give an introduction to what these types of statutes actually consider and entail, Virginia s statutory scheme will be utilized. 25 Paul Wagner, Gang Recruiting Charges for Dad, Teen, Sept. 30, 2009, 26 Two More Arrested in Gang-Related Firebombing of N. Portland Home, supra note Wagner, supra note See VA. CODE ANN (West, Westlaw through End of 2009 Special Session I.), ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.). 29 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I), ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.). 30 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I), Ga. Code Ann (West, Westlaw through the 2009 Regular Session). 31 ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.), MISS. CODE ANN (West, Westlaw through end of the 2009 Regular and 1 st to 3 rd Extraordinary Sessions). 32 CAL. Penal CODE (West, Westlaw through c. 652 of the 2009 portion of the Reg. Sess., the end of st, 2 nd and 4 th Ex. Sess., urgency legislation through c. 31 of the rd Ex. Sess. Urgency legislation though c. 31 of the rd Ex. Sess., and c. 2 of the 7 th Ex. Sess., Gov. s. Reorg. Place No. 1 of 2009, Prop. 1F, approved at the 5/19/2009 election, and propositions on the 6/8/2010 ballot received as of 11/15/2009) (The effective date of this law will be January 1, 2011). (providing the statutory provision that penalize gang participation, provides a sentencing enhancement, and provides the definition of criminal street gang under Chp. 11. Street Terrorism Enforcement and Prevention Act.). CAL. Penal CODE (West, Westlaw through c. 652 of the 2009 portion of the Reg. Sess., the end of the st, 2 nd and 4 th Ex. Sess., urgency ) (providing for gang participation charge under the Chp. Covering Conspiracy in the code.)

7 7 In addressing gang participation, in Virginia, A. Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony. B. Violation of this section shall constitute a separate and distinct offense. If the acts or activities violating this section also violate another provision of law, a prosecution under this section shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby. 33 In Virginia, a Criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction. 34 In addressing gang recruitment, in Virginia, A. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor. Any person age 18 years or older who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 6 felony. 33 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I). 34 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I).

8 8 B. Any person who, in order to encourage an individual (a) to join a criminal street gang, (b) to remain as a participant in or a member of a criminal street gang, or (c) to submit to a demand made by a criminal street gang to commit a felony violation of this title, (i) uses force against the individual or a member of his family or household or (ii) threatens force against the individual or a member of his family or household, which threat would place any person in reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. The definition of family or household member set forth in applies to this section. 35 Virginia does not provide for a sentencing enhancement. However, for two examples of a sentencing enhancement, the Mississippi statute provides in part, (2) Any person who is convicted of a felony or an attempted felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be imprisoned for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for that offense. 36 In Tennessee, the state s sentencing enhancement has a different form, providing that (b) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed. (c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed. 35 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I). 36 MISS. CODE ANN (West, Westlaw through end of the 2009 Regular and 1 st to 3 rd Extraordinary Sessions)

9 9 (d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced. 37 These three categories of statutes are the subject of the survey analysis to follow. For the purpose of this article, a state is designated to have addressed gang activity if it provides for either a gang participation provision or a sentencing enhancement provision. Also, statutory provisions providing aggravating and mitigating circumstances and other provisions not directly addressing gangs were not considered as satisfying the three categories of statutes subject to this survey. With these parameters set out, and examples of the types of statutes considered in this survey having been provided, the results of the state by state survey analysis follows below. Section IV. Analysis Unlike Virginia, some states have not taken up the sword of justice to address the issues of gang recruitment and participation statutorily. 38 While these states may not be ignoring the issues of gangs in general, they are failing to take advantage of the full power of the justice system as other states have. 39 The purpose of this analysis is to put legislators, criminologists, and law enforcement personnel, of a given state, on notice that there is a gang problem in that state and not all of the legislative tools are being utilized. The analysis to follow will accomplish this by noting each state lacking one or more the three types of 37 TENN. CODE ANN (West, Westlaw through end of 2009 First Reg. Sess.). 38 i.e. Hawaii, Maine, Vermont 39 i.e. LA. REV. STAT. ANN. 15:1403 (Westlaw through the 2009 Regular Session) (providing sentencing enhancement for gang participation), LA. REV. STAT. ANN. 15: (Westlaw through the 2009 Regular Session) (providing penalty for gang recruitment), LA. REV. STAT. ANN. 15:1404 (Westlaw through the 2009 Regular Session) (providing definition of a criminal street gang as used in Chapter on Criminal Street Gangs), GA. CODE ANN (West, Westlaw through the 2009 Regular Session) (providing a definition for and penalizing Gang Participation and Recruitment), GA. CODE ANN (West, Westlaw through the 2009 Regular Session) (providing definition of Criminal Street gang ).

10 10 statutes mentioned above and then briefly analyzing some of the gang activity in each of those states if any exists. The first section is composed of states from the Southeast part of the United States. Southeast United States Approximately 9,871 gangs with more than 172,360 members are criminally active in the Southeast Region, according to 2008 NDTS (National Drug Threat Survey) data and interviews with law enforcement. 40 Current trends in this area of the country are showing battles for territory between Hispanic and African American gangs and it is estimated that in the future the Hispanic gangs in this area will continue to expand the drug trade. 41 The most significant gangs operating in the region are Crips, Gangster Disciples, Latin Kings, Surenos 13, and UBN. 42 Of the states in the Souteast region, which, based on a graphic provided in the NGTA, consist of Arkansas, Louisiana, Tennessee, Mississippi, Alabama, North Carolina, South Carolina, Georgia, and Florida 43, the states of Arkansas 44, Louisiana 45, Georgia 46, and Florida 47 provide the statutory provisions that are the subject of 40 NATIONAL GANG THREAT ASSESSMENT: 2009 (2009) 20, (giving, in this section, an overview of the Southeast Region of the United States and a gang membership graphic, with this region, based on the graphic provided, being made up of the states of Ark., La., Tenn., Miss., Ala., N.C., S.C., Ga., and Fl. Id.). 41 Id. 42 Id. 43 Id. 44 See ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.) (providing a definition of criminal gang under the Arkansas Criminal Gang, Organization or Enterprise Act), ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.) (defining and penalizing gang enhancement penalty), ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.) ( defining criminal gang under Subchapter on Recruiting Gang Members) and ARK. CODE ANN (West, Westlaw through end of 2009 Reg. Sess.) (providing statutory provision covering gang recruitment.). 45 LA. REV. STAT. ANN. 15:1403 (Westlaw through the 2009 Regular Session) (providing sentencing enhancement for gang participation), LA. REV. STAT. ANN. 15: (Westlaw through the 2009 Regular Session) (providing penalty for gang recruitment), LA. REV. STAT. ANN. 15:1404 (Westlaw through the 2009 Regular Session) (providing definition of a criminal street gang as used in Chapter on Criminal Street Gangs). 46 GA. CODE ANN (West, Westlaw through the 2009 Regular Session) (providing a definition for and penalizing Gang Participation and Recruitment), GA. CODE ANN (West, Westlaw through the 2009 Regular Session) (providing definition of Criminal Street gang ).

11 11 this analysis. As discussed below, the remaining states do not, failing to provide one or more of the gang provisions being analyzed. The first state analyzed is Alabama. Alabama The state of Alabama s criminal code provides for the criminal activity of gang recruitment as well as a definition of a streetgang 48 as it relates to that section. 49 In the state of Alabama, a violation of that section is Class C felony. 50 The state however does not appear to provide a penalty for streetgang participation or some form of sentencing enhancement. With Alabama lacking the penalty for gang participation, the question then is whether or not the state has gang activity, which it in fact does. In Alabama, of those counties reporting, as displayed in a graphic in the 2009 National Gang Threat Assessment, two are shown to have between 500-2,499 gang members, 51 Jefferson and Madison. 52 Two other counties in 47 See FLA. STAT. ANN (West, Westlaw through Chapter (End)) (defining criminal gang and other related definitions), FLA. STAT. ANN (West, Westlaw through Chapter (End)) (providing sentencing enhancement), FLA. STAT. ANN (West, Westlaw through Chapter (End)) (penalizing gang recruitment). 48 ALA. CODE 13A-6-26 (Westlaw through End of 2009 Regular and First Special Session, except Act ). Part (a) states For purposes of this section, the term streetgang means any combination, confederation, alliance, network, conspiracy, understanding, or other similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity. 13A-6-26 (Westlaw) A-6-26 (Westlaw) Part (b) (b) A person who expressly or by implication threatens to do bodily harm or does bodily harm to a person, a family member or a friend of the person, or any other person, or uses any other unlawful criminal means to solicit or cause any person to join or remain in a streetgang is guilty of the crime of compelling streetgang membership. 13A-6-26 (Westlaw). Note how this statute requires heightened requirements, where recruitment by itself is not enough, but rather some form of threat or criminal means must be utilized. Id A-6-26 (Westlaw). 51 NATIONAL GANG THREAT ASSESSMENT 2009.,supra note 40, at 20. Information based on graphic provided on this page. 52 Alabama County Map. (last visited Nov. 27, 2009) (providing a county map of Alabama used to note the counties highlighted from the National Gang Threat Assessment that

12 12 Alabama are shown to have between 2,500 and 3,499 gang members, 53 Mobile and Tuscaloosa. 54 Even recent law enforcement operations in the state making headlines show that there is a gang problem that needs to be addressed to the fullest extent possible in the state. 55 Following Alabama, is Mississippi. Mississippi The State of Mississippi gives a very comprehensive definitional section on gangs in its state code. It provided the definition for streetgang, gang member and makes note of the role of gang leadership in its definition of streetgang related. 56 The code also provides for penalties or sentencing enhancements for crimes committed to basically further the interests of the gang, basing those penalties in most instances on the underlying offense in conjunction were unnamed in the graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT supra note 40, at 20). 53 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20. Information based on graphic provided on this page. 54 Alabama County Map, supra note 52. (providing a county map of Alabama used to note the counties highlighted from the National Gang Threat Assessment that were unnamed in the graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20). 55 Erin Stock, Immigrants Arrested as Raids Target Gangs, The Birmingham News (Alabama), September 27, 2009 at 15A available at LexisNexis and An operation targeting street gangs has led to the arrests of 42 immigrants in north and central Alabama in nearly a year, including 23 picked up earlier this month in a four-day sweep, according to U.S. Immigration and Customs Enforcement. The initiative, known as Operation Community Shield, has netted a total of 86 arrests in the state since it began in 2005 as a partnership among ICE, state authorities and local law enforcement. All have been in Jefferson, Shelby and Morgan counties. The 42 most recent arrests came since last Oct. 1. Id. Most of the charges brought against the suspects arrested in the state have been administrative ones, such as being in the U.S. without documentation, ICE spokesman Temple Black said in response to an information request from The Birmingham News. Some have been charged with crimes such as having a weapon and returning after having been deported. All of them had ties to ''transnational gangs'' such as MS-13, Sureno-13, Vatos Locos and the Latin Kings, Black said. Id. 56 MISS. CODE ANN (West, Westlaw through End of the 2009 Regular and 1 st to 3 rd Extraordinary Sessions).

13 13 with, again in most instances, a mandatory minimum of one year. 57 The code, however, does not provide a penalty for gang recruitment. The code does provide for some civil actions 58 and damages that relate to gangs, with the damages provision appearing to apply even in criminal situations 59, but it is unclear if these civil provisions would address the issue of penalizing gang recruitment. 57 MISS. CODE ANN (West, Westlaw through End of the 2009 Regular and 1 st to 3 rd Extraordinary Sessions). (1) Any person who intentionally directs, participates, conducts, furthers, or assists in the commission of illegal gang activity shall be punished by imprisonment for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for an underlying offense and may be fined an amount not to exceed Ten Thousand Dollars ($10,000.00). Any sentence of imprisonment imposed pursuant to this section shall be in addition and consecutive to any sentence imposed for the underlying offense. (2) Any person who is convicted of a felony or an attempted felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be imprisoned for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for that offense. (3) Any person who is convicted of an offense other than a felony which is committed for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct or enterprise by gang members, shall, in addition and consecutive to the penalty provided for that offense, be imprisoned for an additional period of not more than one (1) year. (4) Any person who knowingly and willfully sells or buys goods or performs services for a criminal street gang in furtherance of illegal activity shall be punished by imprisonment for not less than one (1) year nor more than one-half ( 1/2 ) of the maximum term of imprisonment provided for the underlying offense and may be fined an amount not to exceed Ten Thousand Dollars ($10,000.00). (5) The court may elect to suspend all or a part of any additional mandatory punishment or enhanced punishment provided for in this chapter to impose alternative punishment in the form of properly supervised community service or placement in an appropriate adolescent offender program, if available, only in an unusual case where the interest of justice would best be served, and if the court specifies on the record and enters into the minutes the circumstances and reasons that the interests of justice would best be served by that suspension of enhanced punishment (Westlaw). 58 MISS. CODE ANN (West, Westlaw through End of the 2009 Reuglar and 1 st to 3 rd Extraordinary Sessions). 59 MISS. CODE. ANN (West, Westlaw through End of the 2009 Regular and 1 st to 3 rd Extraordinary Sessions).

14 14 Lacking the recruitment provision, the question again is whether Mississippi has gang activity or a gang presence in the state, with the answer being yes. Mississippi has six counties reflecting between 500-2,499 gang members 60, and has, within its State, gangs such the Gangster Disciples, [O]ne of the largest gangs in Mississippi 61 62, and the Simon City Royals, whose members were recently arrested on charges for, among other things, conducting gang activity 63. As for the Gangster Disciples, they are a Chicago born street gang that [I]s structured like a corporation and is led by a chairman of the board. Gang membership is estimated at 25,000 to 50,000; most members are African American males from the Chicago Metropolitan area. The gang is active in 110 cities in 31 states. 64 While Mississippi certainly has taken a great step though its current gang legislation, more can be done to address what is still an evident gang problem within their state. Following Mississippi is Tennessee. Tennessee 60 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at Kathleen Baydala, Jackson Gang Suspect Arrested in Tchula, THE CLARION-LEDGER (Jackson, MS), July 9, 2009 at 2B. A 36 year-old Jackson homicide suspect was in custody Wednesday after being arrested by U.S. marshal fugitive task force in Tchula. Christopher Robertson was arrested and charged in the June 29 shooting death of Ke Aunte Scott, 16. Id. Authorities have not said why they believe Robertson may have killed Scott, though Robertson is a reputed gang member. He is an admitted Black Gangster Disciple, Womack said. Gangster Disciples make up one of the largest gangs in Mississippi. Id. 62 Big 4: Gangster Disciples, Vice Lords, Crips, Bloods, March 23, The Gangster Disciples are Also known as Black Gangster Disciples. Id. 63 Mark F. Bonner, Accused Richland Gang Head in Custody, THE CLARION-LEDGER (Jackson, MS), July 17, 2008, at 1A available at LexisNexis. The Chicago Crime Commission s gang Book says the Simon City Royals are probably the Windy City s oldest predominantly white street gang. Id. [T]he gang-known for its black and royal-blue colors-is primarily entrenched in drug and gun sales in Illinois. However, in recent years, the gang has founded satellite operations throughout Mississippi, especially in areas around the Gulf Coast, published reports indicated. Id. Last Thursday night, the gang s alleged activity culminated during a 20-onthree street fight. Richland police descended on the residence and arrested eight on charges including conducting gang activity. Id. 64 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 25.

15 15 The state of Tennessee provides a legal statutory definition of a criminal gang and other related definitions 65, provides for a sentencing enhancement, 66 and even a penalty for gang initiates, 67 but fails to provide a straight forward criminal offense for gang recruitment. As for gang recruitment, in Tennessee, it is an act that could establish a nuisance 68 with a class C misdemeanor penalty for violating a permanent injunction. 69 However other states, such as Virginia, discussed earlier, have addressed recruitment activities without having to go through nuisance and injunction measures 70. Aside from recruitment, Tennessee s enhancement statute is quite narrow, being limited to what it terms as Criminal gang offense, which is any violation of Tennessee law:(a) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or 65 TENN. CODE ANN (West, Westlaw through end of 2009 First Reg. Sess.) (Westlaw). (b) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed (Westlaw). (d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced (Westlaw). There are several other provisions for enhancements for gang leaders provided in the statute (Westlaw) (Westlaw). (c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed (Westlaw). 68 TENN. CODE ANN (West, Westlaw through end of 2009 First Reg. Sess.). (2) "Nuisance" means that which is declared to be such by other statutes, and, in addition thereto, means: (B) A criminal gang, as defined by (a)(1), which regularly engages in gang related conduct (Westlaw). Gang related conduct occurs when one or more criminal gang member(s), as defined by (a)(2), regularly engages in the following: (vii) Taking any action to recruit gang members or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace, or destroy the personal property of anyone as an incentive to join a gang; (Westlaw). 69 TENN. CODE ANN (West, Westlaw through end of 2009 First Reg. Sess.). If any person violates any permanent injunction such person commits a Class C misdemeanor (Westlaw). 70 VA. CODE ANN (West, Westlaw through end of 2009 Special Session I).

16 16 persons and specifically includes rape of a child, aggravated rape and rape; or (B) That results, or was intended to result, in the defendant receiving income, benefit, property, money or anything of value from the illegal sale, delivery or manufacture of a controlled substance or firearm;. 71 This arguably means that the only times gang members will be charged under the purview of the statute is through certain acts committed during the preparation of an offense or an offense that is related to drug and gun sales. However, one aspect that makes this statute different, and arguably more effective from a prosecutor s perspective, is that there is no mentioning of the offenses being committed for the benefit of the gang, which, as seen in other statutes is generally an element that must be shown. 72 Nonetheless, Tennessee lacks one of the three statutory provisions, and the question again is whether or not Tennessee has gang activity or gang presence, and the answer is yes. According to a graphic provided in the 2009 NGTA, Tennessee indicates, of those counties reporting, two with between 3,500-9,999, 1 with 500-2,499 members, and over 25 counties with between gang members. 73 Next, is South Carolina. South Carolina South Carolina provides for the definition of a criminal gang, criminal gang member, pattern of criminal gang activity, and gang related incident. 74 The state also provides a 71 TENN. CODE ANN (West, Westlaw through end of 2009 First Reg. Sess.). 72 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I). A. Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony (Westlaw). See Also Miss. Code Ann (West, Westlaw through End of 2009 Regular and 1 st to 3 rd Extraordinary Sessions). 73 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at S.C. CODE ANN (Westlaw through End of 2009 Reg. Sess.).

17 17 statute that addresses gang recruitment 75, but provides no indication of a statute for gang participation or a sentencing enhancement. South Carolina s recruitment statute however is not truly much of a recruitment statute at all, for it does not criminalize the recruitment itself, rather recruiting an individual via physical violence. 76 This means that recruitment essentially is not a criminal act, while doing it by means of physical violence or with a firearm is. It is important to note however the statute is not worthless when violence is used, as mentioned in the Hmong gang incident 77 provided in the footnotes under the discussion of recruitment. However, despite 75 S.C. CODE ANN (Westlaw through End of 2009 Reg. Sess.). (A) It is unlawful for a criminal gang member to use or threaten to use physical violence against another person with the intent to coerce, induce, or solicit that person or another person to actively participate in criminal gang activity, or to prevent another criminal gang member from withdrawing from or leaving a criminal gang. A criminal gang member who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than one thousand dollars or imprisoned not more than two years, or both. A criminal gang member convicted for a second or subsequent offense pursuant to this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both. (B) A criminal gang member who uses a firearm, any other deadly weapon, or physical violence to coerce, induce, or solicit another person to actively participate in a criminal gang, or to prevent another criminal gang member from withdrawing or leaving a criminal gang, in addition to the punishment prescribed in subsection (A), may be punished by an additional fine of not more than ten thousand dollars or by imprisonment for an additional period of not more than ten years, or both. (C) If the person solicited, recruited, coerced, or threatened in violation of this section is under the age of eighteen, an additional term of three years may be imposed in addition and consecutive to the penalty prescribed for a violation of this section. (D) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of the actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member. (E) Nothing in this section limits prosecution under any other provision of law. I (Westlaw) (Westlaw). 77 Two More Arrested in Gang-Related Firebombing of N. Portland Home, supra note 20

18 18 its limitations, the statute is considered a recruitment statute for the purpose of this analysis, however, South Carolina should look to adopting a more general gang recruitment statute, like that used in Virginia 78. While the state does provide for a government civil action against gangs for certain injuries suffered to the government, 79 it lacks a direct criminal penalty for gang participation like, for instance, in Virginia. 80 Lacking such a statute, the question again is does South Carolina report gang activity or presence in the state, and the answer, like for the other states in this section is yes. South 78 VA. CODE ANN (West, Westlaw through end of 2009 Special Session I). A. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor. Any person age 18 years or older who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 6 felony. B. Any person who, in order to encourage an individual (a) to join a criminal street gang, (b) to remain as a participant in or a member of a criminal street gang, or (c) to submit to a demand made by a criminal street gang to commit a felony violation of this title, (i) uses force against the individual or a member of his family or household or (ii) threatens force against the individual or a member of his family or household, which threat would place any person in reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. The definition of family or household member set forth in applies to this section (Westlaw). 79 S.C. CODE ANN (Westlaw through End of 2009 Reg. Sess. ). (A) A civil cause of action is created in favor of the State of South Carolina, a county, municipality, or another political subdivision, or an agency or instrumentality of them, that sustains any damage, impairment, or injury proximately caused by a pattern of criminal gang activity as defined in this article, or the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The cause of action created by this section may be brought against a criminal gang, a criminal gang member, or any other person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, or any other person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. (B) Except as provided in this section, an action for injunction, damages, or other relief filed pursuant to this section must proceed according to the common law, statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court (Westlaw). 80 VA. CODE ANN (West, Westlaw through End of 2009 Special Session I).

19 19 Carolina indicates three counties with 500-2,499 gang members 81, and one county, Orangeburg 82, with 3,500-9,999 gang members 83. A recent article on gangs and crime in Anderson County, South Carolina provides every reason for stronger statutes in the state, stating, Currently, there are between 300 and 400 known gang members in Anderson County, Mark Gregory said. But for every one member we know about, there are at least two more we probably don t know about, he said. Also, there are at least 25 gangs now documented as being in the county. Gangs known to be operating in the county include the Bloods, Crips, Folk Nation, Brick City Boys, Black Mafia and Insane Disciples. The Insane Disciples are a set, or support group, for the Folk Nation. 84 Hopefully in the near future South Carolina will begin taking steps to legislatively continue to address issues such as this. Following South Carolina is North Carolina. North Carolina The state of North Carolina provides for the penalty of gang participation and the definition of a gang 85, however, it fails to penalize gang recruitment. It has two provisions, that appear to address such an issue, but they are statutes that criminalize the act of soliciting an individual to engage in criminal street gang activity. 86 As defined in N.C. Gen. Stat. Ann , "criminal street gang activity" means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit an act or acts, with the specific intent that 81 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at South Carolina-Detailed County Maps, (last visited Nov, 28, 2009) (providing county map used to match the name of the county with the highlighted county in the 2009 National Gang Threat Assessment graphic on page 20. See NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at 20 ). 83 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at Rick Spruill, Task Force Says Gangs in Anderson are Real, Independent Mail, October 25, 2009, (giving an overall look at the gang activity in Anderson County). 85 N.C. GEN. STAT. ANN (West, Westlaw through S.L (end) of the 2009 Regular Session.). 86 N.C. GEN. STAT. ANN , (West, Westlaw through S.L (end) of the 2009 Regular Session).

20 20 such act or acts were intended or committed for the purpose, or in furtherance, of the person's involvement in a criminal street gang or street gang. An act or acts are included if accompanied by the necessary mens rea or criminal intent and would be chargeable by indictment under the following laws of this State:. 87 The difference is crucial, as these statutes are punishing someone for getting someone else to commit a crime, as opposed to getting someone else to join a gang, such as in Virginia 88. With North Carolina lacking one of the statutes, the question is again, does the state have gang activity or a gang presence, and the answer is yes. According to a graphic provided in the 2009 NGTA, North Carolina has over 25 counties with between gang members, three with 500-2,499, and one with 2,500-3,499 gang members. 89 For the purposes of this article, the sentencing enhancement provision for misdemeanor offenses 90 is not being addressed nor discussed, as North Carolina has already provided a gang participation penalty. With North Carolina rounding off this section, analysis now moves to the west coast. Pacific Approximately 6,900 gangs with more than 237,000 members are criminally active in the Pacific Region, according to 2008 NDTS data and interview with local law enforcement officials. 91 The most significant gangs operating in the Pacific Region are 18 th Street, Bloods, Crips, La Erne, Nuestra Familia, and Hells Angels. 92 The Pacific Region for the purposes of this discussion reflects the NGTA Pacific Region, consisting of Nevada, (Westlaw). 88 VA. CODE ANN (West, Westlaw through end of 2009 Special Session I). 89 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at N.C. GEN. STAT. Ann (West, Westlaw through S.L (end) of the 2009 Regular Session.). 91 NATIONAL GANG THREAT ASSESSMENT 2009, supra note 40, at Id.