Reminder: as always, this blog post is written in my capacity as a private citizen. I do not purport to speak for my office.
The New York Times had a long piece recently about gang enhancements in California titled How Do You Define a Gang Member?
Here is a typical passage from the piece:
At the Sebourn trial, Brennan showed the jury and his witness, Robert Gumm, a Modesto Police Department detective, image after image of Sebourn’s extended network of friends, photos of young men and women throwing up signs for the number 13, contorting their fingers into crooked forms of the letters CLS, for Celeste Locos Sureños, Sebourn’s clique from the neighborhood near Celeste Street, on the east side of Modesto. Most of the pictures had been taken from the defendants’ cellphones, as well as from their Facebook pages. The jury saw photos of tattoos, of young men drinking 40-ounce bottles of malt liquor, scowling at the camera. It was a gangbanger’s photo album, or at least that was what this curated selection of images appeared to be. And though Sebourn himself was in only a couple, Brennan argued that he was known to these young people, as they were known to him. It was guilt by association. And it was very convincing. That rainy morning in Modesto, I had two contradictory thoughts at once: This doesn’t seem fair; and These knuckleheads sure look like gang members.
First of all, we don’t get any details about the photos of the defendant. Is he throwing gang signs in his photos? I assume he is, because if he weren’t, the author would tell us. Placing that issue to one side, referring to photos of other people throwing gang signs as “guilt by association” ignores the issue of why the photos were on these defendants’ cell phones to begin with. If you looked at someone’s phone and it had 100 pictures of other people holding Rembrandts, would it be “guilt by association” to conclude the owner of the phone had an interest in Rembrandts?
Not to mention the irony of an article referring to a “curated selection of images” while publishing one and only one photo of the defendant: a portrait of him with his sister:
So innocent looking. And yet:
From where I sat in the courtroom, I had a clear view of the judge, the multiethnic jury and the back of Sebourn’s head. He kept his dark hair cut short enough that I could make out the outline of the letters ES peeking through in Old English font. The prosecution’s gang expert, Detective Robert Gumm, had argued that these letters stood for East Side and were among the indicators of Sebourn’s gang affiliation. As someone who does not have a tattoo on the back of my head, who would never consider getting a tattoo on the back of my head, I found it easy to believe that this was some sort of gang statement. De La Cruz, though, didn’t agree. Sebourn and his co-defendants were pretenders. Poseurs. Like young people anywhere, they could be trying on identities. They might be irresponsible, perhaps unlikable, maybe some were even dangerous, but legally, none of that was relevant.
At least the writer was honest enough to tell us that the defendant had a tattoo of his gang screaming from the back of his head — something he would only have done if he were at one point displaying that tattoo with a shaved head. But the writer also makes it sound plausible that someone could get such a prominent tattoo without earning it — while being a “poseur.” Somehow I don’t think that would go over very well with other members of the gang.
Anyway, “New York Times writes another pro-defense article on the criminal justice system” isn’t much of a shocker, but I did want to draw attention to some dubious discussion of sentencing law in the article. For example:
If Brennan could convince the jury that Gomez had been murdered, as he put it, “for the benefit of, at the direction of, or in association with the Sureño criminal street gang,” then Sebourn and his co-defendants could be facing 50 years to life in prison. According to the penal code, without the gang enhancement, the sentence could be as little as 15 years.
That makes it sound as through the gang enhancement could transform a 15-year case into a 50-to-life case, essentially making the crime a life crime and adding 35 years to life. That is impossible. First of all, look at the caption to the photo above. It says Sebourn was being tried for second-degree murder, which makes sense because he was charged under a “natural and probable consequences” theory. A second-degree murder conviction is punishable by 15 years to life in state prison — not just 15 years. The gang enhancement could have the effect of adding 25 years to life, by making a gun enhancement available even though Sebourn did not personally fire the weapon. Thus, the difference is between 40 to life and 15 to life — not between 50 to life and a mere 15 years with no life “tail.”
The article has several other questionable statements about the nature of the gang enhancement. In murder cases, the gang enhancement generally has no effect on the sentence. In murder cases where the defendant was the shooter, the gang enhancement will not add a single day to the sentence. In attempted murder cases where the defendant was the shooter, it will add 8 years to the minimum parole eligibility date. I’d be willing to bet that the writer does not know these subtleties, and (if I’m right) is inaccurate when he says:
Roughly 7 percent of California’s prison population, around 115,000 people, is serving extra time because of gang enhancements; given that the state has been ordered by the Supreme Court to reduce its prison overcrowding, this is hardly an insignificant figure. According to the California Department of Corrections and Rehabilitation, nearly half of those convicted with gang enhancements are serving an additional 10 years or more.
My guess is that the writer is simply tallying up the number of gang enhancements under Penal Code section 186.22(b)(1)(C), which nominally adds 10 years to a sentence, and assumes that 10 years have been added in every case where that enhancement applies. That is not the case, however, as I just explained.
I’m out of time and room to comment further. It’s just a shame that flawed and biased pieces like this have such a great effect — but this one is very likely to be widely discussed. After all, it’s the New York Times, and it has a great reputation in this area . . . with everyone except the people who actually know what they’re talking about.