Weekly Briefing

“Street Gang Prevention” Proposals Need More Work

By Rob Schofield

Quick Take:

• Both the House and Senate are considering sweeping “anti-street gang” legislation.
• Both proposals attempt to attack the problem of criminal behavior by gangs via the traditional approach of enacting new criminal offenses and tougher penalties.
• Though perhaps well-intended, each of these proposals is badly flawed. Lawmakers would do well to study the issue further before acting.   

One of the most encouraging trends in American public policy over the past few years has been the gradual demise of the nation’s late-20th century obsession with enacting ever-tougher criminal penalties. After two decades of locking up more and more people for longer and longer sentences and experiencing, at best, mixed results, many public officials are coming to grips with the fact that there is much more to fighting and preventing crime than harsh punishment.

More and better policing, improved community services like drug treatment, targeted school intervention programs and increased economic opportunity – to name just a few tactics – have all shown themselves to be the equal of (if not superior to) long prison sentences in deterring crime. When this reality is combined with the explosive costs associated with the state’s enormous and growing prison population, it’s no wonder that lawmakers are finally beginning to consider some modest proposals for scaling back (at least slightly) some of the state’s criminal penalties.

All of which makes a pair of anti-gang bills currently pending in the state Senate and House perplexing and disheartening. Under both of the proposed measures (read them here and here to get a flavor – though, note that the Senate version has been amended), North Carolina would enact a sweeping new “get tough” regimen that promises new crimes, higher penalties, and broad – even vague – standards that push the limits of constitutionality. Though perhaps well-intended, each of the proposals is fraught with serious problems. Much more, in-depth study is warranted before lawmakers attempt any bold new efforts in this area.

The Problem

By all accounts, criminal gang activity is a problem in North Carolina. Common sense tells us that gang populations are probably rising right along with the state’s general population boom. Hard data, however, are hard to find and confirm. A recent press release from Senator Dole’s office touting a new federal anti-gang program claimed that the state’s gang population had grown from 5,068 to 8,517 between 1999 and 2004. A 2006 Governor’s Crime Commission document however, put the number at 3,500. Some sources have found that national gang membership is actually trending downward.

Whatever the actual numbers, it’s clear that many North Carolinians have either been victimized or otherwise felt the effects of gang activity. Particularly in struggling neighborhoods, many have watched as gangs have moved in and recruited troubled or otherwise vulnerable kids. A number of good people are demanding action by law enforcement officials and state and local policymakers.

The only problem for policymakers in responding to such demands, of course, is the lack of obvious answers. While superficially appealing, harsh new penalties are of questionable deterrent effect. Perhaps more importantly, they also serve to assure that large numbers of young people will get an early and complete indoctrination into the criminal justice system and all of the baggage that comes with it – what some have described as “Street Gang University.” Serious constitutional issues can also be implicated.

School and community-based education and intervention programs offer great promise, but can cost lots of money and take time to set up. Moreover, no such model is immune to simply being overwhelmed by a rapid population influx or shift in a particular neighborhood.

Flawed Legislation

The many shortcomings of the “get tough” approach are on full display in the current proposed legislation. Both bills would create new offenses and impose harsher penalties on “gang” activity. As a practical matter, both measures would result in more long-term prison sentences – particularly for young people. A narrowly defeated amendment offered in the Senate Judiciary I Committee by Senate Republican Leader, Phil Berger, would have dropped the age of eligibility for such punishment to 13.

Perhaps more importantly, both bills define “criminal street gang” so broadly as to rob the term of any real meaning. The bills say the term includes essentially any collection of three or more individuals (“formal or informal”) that even attempts to commit any of a long list of several hundred criminal offenses “in furtherance” of the gang.  

If applied as written, the measure could lead to ridiculous results. Under the terms of the legislation, a political party or religious group that held illegal raffles or bingo games could actually be subject to classification as a criminal gang. While obviously not the intent of the sponsors, such incredibly broad coverage is also certain to invite abuse from overzealous prosecutors. The bills also make it a serious (class F) felony to “encourage…another to participate in a criminal street gang activity.” One can only imagine the court challenges that will result to any prosecutions under such a section.

The proposed legislation is also chocked full of circular definitions and prohibitions like this one: “It is unlawful for any person employed by or associated with a criminal street gang to conduct or participate in the criminal street gang through a pattern of criminal gang activity.”

Flawed Policy

Setting aside the many questionable provisions in the proposed drafts, one must also question the underlying policy assumptions. Assuming some or all of the law were actually to survive the inevitable constitutional challenges that would follow its enactment, do lawmakers really want to override the years of work that have gone into fine tuning the state’s structured sentencing law? A fiscal note developed by legislative staff on a previous iteration of this legislation in 2005 forecast an extraordinary cost to the state’s corrections and criminal justice system (tens, if not hundreds, of millions of dollars). A similar projection is expected this year. How would the state pay such costs?

Perhaps even more importantly, do lawmakers really want to make hardcore felons out of hundreds, if not thousands, of vulnerable young people – many of whom will have done little more than what troubled kids have always done, i.e., dress like and hang out with the wrong friends and make stupid decisions in a desperate attempt to find a sense of belonging and/or avoid victimization? Obviously, these young people need services. Many need to be rescued. But a life in the criminal justice system seems like a poor prescription for what ails them.     

A Better Solution

Given the painful complexity of the gang issue, it’s obvious that North Carolina cannot waive a magic wand (or, in this case, a magic club) and solve the problem overnight. If lawmakers want to seriously address the issue, they must explore, develop and enact sophisticated approaches that involve all stakeholders and take into account the combined expertise of professionals in a wide array of disciplines – not just law enforcement.

Ironically, the most recent version of this year’s state budget bill (see page 186) already includes language directing the Governor’s Crime Commission to undertake a special study that would approach the issue in a just such a holistic fashion. The provision directs the Commission to assess the scope of the problem, to assess what’s already being done, to hear from experts, to project the future and to offer specific suggestions for improving the state’s approach to the problem. It ought to be given time to work before lawmakers resort to the crude approach of concocting vague new crimes and slapping more time onto hundreds of prison sentences. Let’s hope reason prevails over simplistic, “get tough” politics.

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This entry was posted on Tuesday, July 3rd, 2007 at 3:02 pm and is filed under Weekly Briefing. You can follow any responses to this entry through the RSS 2.0 feed.