Fear itself: the impact of allegations of gang affiliation on pre-trial detention.

AuthorHowell, K. Babe
  1. Introduction II. The Impact of Gang Affiliation on Pre-trial Bail Determinations A. The Impact of Alleged Gang Affiliation for a Particular Defendant: Daniel's Story B. Survey Evidence of The Impact of Allegations of Gang Affiliation on Bail Determinations 1. Frequency of Allegations of Gang Affiliation 2. Types of Cases in Which Gang Allegations Were Made 3. Impact of Allegation of Gang Affiliation 4. Impact on Outcomes 5. Race 6. Accuracy of Allegations of Gang Affiliation 7. Evidentiary Review of Allegations of Gang Affiliation III. The Importance of Bail Determinations A. The Presumption of Innocence and the Right to Non- Excessive Bail B. The Impact of Non-Release on Case Outcomes IV. Gang Membership A. Defining the Gang B. Identifying the Gang Member C. Compiling and Maintaining Gang Databases V. Proposals VI. Conclusion I. INTRODUCTION

    In criminal courts, the statement "the defendant is in a gang" often reduces or eliminates the possibility of release on reasonable bail regardless of the merits of the case, or the severity of charges against a defendant. This is because the allegation that a person is affiliated with a gang evokes fear of senseless violence. (2) This is the case whether or not the defendant has ever been convicted of a crime, and whether or not the arrest is related to a serious crime or alleged gang activity. Most importantly, this fear is evoked whether or not the defendant is actually a member of a gang. A defendant who would otherwise be released to defend himself, to go to school, to work to support his family, or to demonstrate that incarceration is unnecessary through good conduct will often face bail that will all but insure his pre-trial incarceration if the gang label is affixed to him when the court considers release.

    The practice of requesting bail based on an allegation that a defendant is affiliated with a gang is deeply problematic for several reasons. First, the information underlying this claim is based on law enforcement gang databases which include non-gang members and are compiled without any requirement of criminal conduct or actual gang membership. (3) Second, imposing high bail leading to pre-trial detention exacerbates existing racial disparities in the criminal justice system because the gang label is affixed predominantly to young men of color, despite the fact that gang researchers estimate that forty percent of gang members are actually white. (4) Finally, despite popular myths, most gang members are not involved in drive-bys and organized drug selling. Nonetheless, the basis for the allegation is not tested and defendants who face these allegations are often incarcerated when they would otherwise be released. This occurs because the gang label evokes fear of violence and organized crime.

    Despite the impact of allegations of gang affiliation on every phase of the criminal process, the literature on gang affiliation in the criminal justice system is extremely limited (5) and the impact of alleged gang affiliation on pre-trial detention is non-existent. A number of articles have examined the use of civil injunctions in California to criminalize the presence of alleged gang members in public spaces. (6) Additionally, a spate of articles were penned during the litigation of Chicago's anti-gang loitering ordinance in the late 1990s. (7) Generally, however, use of allegations of gang affiliation based on inclusion on gang databases has not been subjected to critical review. (8)

    While legal academics have left the intersection of gang policing and the criminal justice system largely unexplored, social scientists and sociologists have long focused on the nature of gangs, the different levels of affiliation, and the difficulty of defining both "gangs" and "membership" in a gang. (9) Law enforcement's bare allegation that an individual is a member of a gang is often inaccurate and is generally tremendously overinclusive of young men of color. (10) It is simultaneously substantially underinclusive of women (11) and white men. (12) The divide between the extraordinarily inclusive definition of gang membership employed by police and prosecution and the decidedly more complex and nuanced relationship between youth in neighborhoods dominated by street gangs evidenced in the social science literature is more than an issue of academic interest. An allegation of gang affiliation affects every aspect of a criminal case because it is so prejudicial that it is difficult to get a fair trial. (13) Moreover, in the majority of jurisdictions, substantial sentence enhancements may be imposed upon conviction of a gang related incident. (14)

    This article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the fight to non-excessive bail is guaranteed by the Eighth Amendment. (15) Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. (16) This is particularly so when charges are less serious. (17) When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain release. (18) Thus, the imposition of high bail may be the only decision based on gang allegations affecting the majority of defendants.

    Third, the allegation of gang affiliation is often inaccurate and unrelated to the offense, yet a defendant alleged to have a gang affiliation will often be treated as an extremely violent and dangerous individual. (19) The invocation of gang membership suggests senseless violence, danger to others, and can lead to misguided preventive detention in the form of excessive bail. While there is certainly a very real connection between gangs, delinquency, and violence, any non-law enforcement gang expert (and some law enforcement experts) would distinguish among levels of gang membership. (20)

    Further, evidence suggests "gang databases" (21) are so wildly over-inclusive that many people in gang databases are not even members of a gang. (22) The databases are simultaneously under-inclusive of non-minority gang members and women, and their use exacerbates the overrepresentation of males of color in the criminal justice system. The reliance on unsupported allegations of association with a gang in determining pre-trial bail conditions may, and often does, overshadow the presumption of innocence. (23)

    To be sure, the imposition of bail that effectively leads to pre-trial detention is a long-established facet of the criminal justice system. (24) The presumption of innocence and the right to remain free until proven guilty has often been honored more in the breach than in reality. Jails across the country are filled with defendants awaiting trial. (25) A small number of defendants are remanded after specific findings that they pose such a great risk of flight or such a danger to the community that detention, even prior to conviction, is permitted. (26) In these circumstances, the decision to remand without an opportunity to post bail and be released is governed by narrowly defined considerations. (27) In the vast majority of cases, pre-trial detention is secured by bail. (28) Money is the key that can unlock the jail door, but the amount of bail required to secure pre-trial freedom is set, more often than not, beyond the means of the indigent defendant. (29) For those alleged to have gang affiliations, however, higher bail is more likely than for those with similar records, charges and community ties who are not alleged to be in gang databases. (30)

    While there is substantial literature examining the terms and conditions of pre-trial release and bases for pre-trial bail decisions, (31) the allegations of gang affiliation have not been subjected to such scrutiny. Because the decision to release or detain a defendant is often the most critical moment in the course of a criminal case, this paper fills that gap. This paper proposes that allegations of gang membership be excluded from the release determination in all but a very limited number of cases and that, when such allegations are permitted, procedural safeguards requiring prompt review of the factual basis for allegations of gang affiliation be adopted.

    Part II of this article examines the nature and scope of the impact of allegations of gang association. In Part III, the critical nature of the pre-trial release decision and the permissible considerations for release determinations are considered in light of the presumption of innocence and the Eighth Amendment's prohibition on excessive bail. Part IV examines the difficulty of defining gangs and identifying gang members, the problems associated with the development and maintenance of gang databases by law enforcement, and their use by prosecutors in making bail requests. Part V sets forth proposals to limit improper use of allegations of gang affiliation.


    The impact of allegations of gang affiliation on pre-trial bail determinations depends on a number of factors. The most important of these may be the severity of the crime. Counter-intuitively, the less serious and less violent the alleged crime, the greater the impact of the allegation of gang affiliation. This is because the "seriousness of the offense" is a factor considered under most bail statutes. (32) Thus, in any case involving a murder, shooting, serious stabbing, large amounts of drugs, or numerous weapons, bail will be set at a relatively high level regardless of gang affiliation. The length of the sentence a defendant faces if convicted of a serious or violent offense is also a factor which may be considered in determining bail. (33) It is only when a defendant would ordinarily be released, or when bail would be set...

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