By David M. Greenwald
Sacramento, CA – Governor Newsom continued to re-define California law on Friday, signing one of the seminal criminal justice reform bills on the docket this term—AB 333, which will drastically change the way prosecutors can charge and convict on gang enhancements.
“It’s long been shown that a ‘one-size-fits-all’ approach to sentencing does little to improve recidivism rates and improve public safety,” said Senator Sydney Kamlager who authored the legislation. “It is time our laws reflect the data we have about how and why people enter the system, and how best to keep them from re-entering.”
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.
“We’re re-injecting due process back into the criminal legal system—where it should’ve been all along,” continued Senator Kamlager. “I’m thrilled to see Governor Newsom sign AB 333 into law. Gang enhancements have long been used against people of color far more frequently than their white counterparts. With today’s signing, we’re making progress on our promise to root out discrimination where we see it.”
“The reality we live in now is we have biased prosecutorial overreach with these kinds of enhancements,” Senator Kamlager said in September during a press conference.
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.”
“People should not be criminalized because of the neighborhoods they live in, families they were born into, or other factors outside their control,” said a spokesperson for NextGen Policy, a co-sponsor of the bill. “And they shouldn’t lose an additional 5, 10, 20 or more years of their liberty without adequate proof or due process. This bill provides long overdue, commonsense reforms to curb the rampant and devastating application of gang enhancements to people of color from overpoliced and under-resourced communities. We are excited to see it signed into law.”
In addition, the bill also reduces the list of crimes under which use of the current charge alone creates proof of a “pattern” of criminal gang activity, and separates gang allegations from underlying charges at trial.
“Gang enhancements exacerbate racial inequities in our criminal legal system,” added a spokesperson from Anti-Recidivism Coalition, who also co-sponsored AB 333. “They target people of color and people in low-income neighborhoods—criminalizing relationships within those communities. In fact, research shows that 92% of people who receive gang enhancements are people of color. We’re relieved that California is taking steps to address this area of deep racism.”
AB 333 was based on a recommendation from the newly-formed Committee on Revision of the Penal Code. Michael Romano, Chair of the Committee, said, “I am deeply grateful to Senator Kamlager for authoring and Governor Newsom for signing AB 333. The Committee on Revision of the Penal Code is committed to improving public safety for all Californians while reducing unnecessary incarceration and inequity in the criminal legal system. AB 333 is an important step towards those goals.”
Other supporters of the change were San Francisco Public Defender Mano Raju and Los Angeles DA George Gascón.
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.”
“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.”