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Saturday, June 4, 2016

Gang Enhancements And Due Process

A Tennessee court of appeals issued a turgid, 57-page decision last week that ruled that the Volunteer State’s gang enhancement law violates the due process clause of the Fourteenth Amendment.

Yes, the Fifth Amendment also contains a due process clause.

The Tennessee ruling has received considerable attention. Theoretically, it may effect the application of gang enhancements to criminal charges in other states. The Tennessee ruling is not as likely to accomplish that in and of itself as much as the 55-year-old ruling by the United States Supreme Court it cites, That old ruling seems applicable to many “gang” cases, particularly the slow motion “gang” case now underway in Waco, Texas.

In Tennessee, four defendants named Devonte Bonds, Thomas Bishop, Jason Sullivan, and Brianna Robinson were tried jointly and convicted of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony after they beat “out a fellow gang member.” The beating put the victim in a coma for nine weeks.

“The jury found that the underlying offenses committed by Defendants Bonds, Bishop, and Sullivan constituted criminal gang offenses, and they received enhanced punishment….”

The prosecution’s case included the testimony of a “gang expert” and the Tennessee appeals court  ruled his testimony was relevant because he has taken many classes in gangs, has taught many classes in gangs and has given testimony against gang members many times before.

Tennessee’s legal definition of a street gang resembles many such definitions:

“A criminal gang is a formal or informal ongoing organization, association or group consisting of three or more persons that has . . . as one of its activities the commission of criminal acts; and two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity.” The statute defines “pattern of criminal gang activity” as prior convictions for the commission or attempted commission of Two or more criminal gang offenses that are classified as felonies; or three or more criminal gang offenses that are classified as misdemeanors; or one or more criminal gang offenses that are classified as felonies and two or more criminal gang offenses that are classified as misdemeanors; and the criminal gang offenses are committed on separate occasions; and the criminal gang offenses are committed within a five-year period.”
New And Old Law

What seems to be applicable to “gang” cases in other states is the Tennessee ruling that prosecutors must prove a connection, or nexus, between criminal activity and gang affiliation. This has come up in recent federal racketeering cases aimed at motorcycle clubs, most notably U.S. v. Mongol Nation in which prosecutors failed to assert a connection between certain criminal acts, some of them decades old, and the membership of the Mongols Motorcycle Club as a whole when the case was filed.

The Tennessee court quotes the 1961 federal case Scales v. United States: “In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity…that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause….”

The Scales decision is likely to be cited at some point in the current criminal proceedings in Waco, Texas where a bush league District Attorney named Abelino Reyna decided that innocent people could be arrested for participating in organized crime if they could be “documented” as either a Cossack or a Bandido or a “supporter” of either of those clubs. This “documentation” could be “based on their jackets or what is referred to as ‘cuts’ or ‘colors’ as well as a any other patches or particular identifiers to show they were a documented member or a support member.” These identifiers included “a patch showing ‘I support the Bandidos’” and a patch “indicating ‘I support the Fat Mexican.’”

Citing Scales, the Tennessee appeals court disagrees with the learned Reyna. “It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that act alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever.”