By David M. Greenwald
Sacramento, CA – One of the big complaints about gang enhancements is that they heavily target people of color while their provisions remain vague and poorly defined. Senator Sydney Kamlager’s AB 333, the STEP Forward Act, seeks to remedy that and it took a major step on Wednesday—passing in the Senate on a 25 to 10 vote and heading back to the Assembly for a concurrence vote.
Currently, gang enhancement statutes have vague definitions, weak standards of proof, and are perhaps the most racially discriminatory part of the criminal justice system: 92% of people with gang enhancements in California are people of color.
AB 333 takes the first step toward addressing the pain caused by gang enhancements. It does so by reducing the list of crimes that allow gang enhancements to be charged, prohibiting the use of the current charge as proof of a “pattern” of criminal gang activity, and separating gang allegations from underlying charges at trial.
“The reality we live in now is we have biased prosecutorial overreach with these kinds of enhancements,” Senator Kamlager said Wednesday during a press conference. “At the core AB 333, The STEP Forward Act is about due process.”
She said, “This bill would ensure that all of us, no matter what we look like, where we come from, our zip code, what kind of tattoos that we have, regardless of all of that, if we are charged with a crime and if we are charged with being in a gang, then the prosecution must prove those charges to be true.”
Right now the problem, she said, is you do not need to prove beyond a reasonable doubt whether or not someone is in a gang.
“So instead of relying on very arcane and lazy tools, let’s ask prosecutors to prove the charges that they’ve levied against someone,” the senator added.
Moreover, she pointed out that “gang enhancements are often used frivolously and disproportionately against people of color.”
At the same time they worked with law enforcement and prosecutors to make the bill more acceptable to them.
For example, she said, “We have removed a provision requiring the prosecution to prove that the alleged criminal activity gang, that the alleged criminal street gang must have established hierarchy.”
San Francisco Public Defender Mano Raju said that “the stated values of our legal system are that people should be held accountable for what the prosecution proved that they did, but the gang statutes are anathema and contrary to that because prosecutors and judges end up punishing people, caging them, not because of what they did, but because of what someone else did at some other time and maybe in some other place.”
Raju pointed out that prosecutors are able to “introduce evidence about something that has nothing to do with their loved ones who are on trial in that particular case.”
He said, “Prosecutors often end up making up for a lack of evidence by trying to substitute fear and name calling for actual reliable evidence.”
Los Angeles DA George Gascón noted that, in Los Angeles, “we don’t use gang enhancements anymore. We stopped using them.”
He believes science tells them “that enhancements generally create more insecurity in our community.”
Gascón said, “They over-criminalized people based on race, based on economic status. But just as importantly, they also create an environment where you increase criminality and insecurity, uh, by recidivism, by criminalizing young people that then are often placed in a situation where they cannot find employment. They cannot get housing.”
He said, by doing that, “you often create a scenario where people are left with very few options other than engaging in other criminal activities, even in order just to be able to, to pay for housing, we’re going to be able to survive.”
Gascón added that an AG audit found that in many cases where young people of color, especially African-American men and Latino men, but also women, were being placed in these files when they have no connection to any gang activity whatsoever.
“This is really a beginning of a journey,” he said. “We have to get to a place where not only gang enhancements, but most enhancements, are eliminated from our system.”
“We need to have truth in, in the way that we charge cases,” he said. “I tell people often that enhancements in our criminal legal system are like drugs. We go have surgery and the doctor might give us drugs to make us feel better for a while. But when we continue to use some, we get addicted to it. I think that is what has occurred with enhancement in our criminal legal system—we have become addicted to it.”
“At the heart of AB 333 is due process,” said Senator Kamlager. “AB 333 just asks for the charges to be proven when they’re levied against someone. Right now, our system allows a shaved head, tattoos, or even the color of your grandma’s house as reason to be charged with a gang enhancement. That’s antithetical to how our judicial process should operate and I am glad we are one step closer to a fix.”
The senator added, “The step forward act is just that it is a step forward, an important step forward and undoing a lot of the harm that has been caused by current gang enhancement statutes. It is common sense legislation, and it works to really address how we have used stereotypes and how we are basing so many of our decisions on fear.”