By Jason Childers
BPU Investigator in Jim Wells County
Strong links exist between gang membership and violent victimization,1 and as I stood on the street in the summer of 2012 taking yet another report of a drive-by shooting, I found this victim was no exception. On top of her reputation for violence, Sandra Smith (not her real name) was on her third gang-member boyfriend from her third different gang. Her own gang involvement contributed to her victimization, but that didn’t justify the shootings, nor did it provide an excuse to ignore the problem. How- ever, we had no direct link to any specific perpetrator, so there was little to be done from an investigative standpoint.
The shootings were related to an ongoing conflict between the gang of Sandra’s current boyfriend and the gang of one of her previous boyfriends. That her loyalties had switched likely added fuel to the fire, but the back-and-forth violence between these two gangs had been going on for years. The shootings at her house in the prior weeks were only a small part of the cycle of gang violence in our community, and like many of our gang cases, we had no leads to go on.
My department had been responding to drive-by shootings and assaults between these two gangs and others on a regular basis since I had started as a cop in the area in 2005. For such a small community, we were dealing with crime rates stereotypically associated with larger cities. To put the problem in perspective, our aggravated assault rate grew by an additional 53 per- cent between 2004 and 2011; during the same period, the rate at the Houston Police Department not only remained less than ours, but even declined by 6 percent.2 Later, some described our gang situation as a small town with big-city problems.
The issues we were experiencing with gangs had become the status quo, and with the gang code of silence and the ability of the group to exact its own form of justice on the street, preventing many victims from cooperating, it seemed there was little we could do to stop the cycle of violence. However, with our second gang- related murder in three months, the status quo was no longer unacceptable. The situation escalated quickly, and the two gangs clashed in a shootout that ended in a high-speed crash into the wall of a church and four people dead. In a community of about 20,000, many began questioning what was being done to stop the violence. Law enforcement and prosecutors had to change our approach, and in the process, there were a number of lessons we learned, which I now share with you.
How gangs differ from other criminals
Though laws exist to deal with organized crime, problems of gang violence don’t often fit the typical mold of how the criminal justice system works. The system is built on the theory of general deterrence, whereby the investigation, arrest, and prosecution of some individuals for some crimes deters others from committing crimes. Additionally, investigations often focus on separate criminal acts committed by specific individuals. However, the general deterrence model does little to stop gangs—groups whose very identity is defined by involvement in crime— and the individualized nature of cases can some- times keep us from recognizing how we can impact the criminal organization itself.
Different problems require different solutions, and in the case of gang control, the foundation for an effective justice strategy consists of a focused-deterrence approach, along with an understanding of group crime and gang dynamics. In combination with other factors, applying this approach to our local gang problem led to a 58-percent drop in our aggravated assault rate from its high in 2011 to its low in 2015, a level that hadn’t been seen since before 2000 but which we have since maintained.3 The prosecutor’s office plays a powerful role in gang violence intervention and can obtain significant results by providing training and investigative support to law enforcement agencies, developing local gang experts, and implementing a prosecution strategy with the group, rather than the individual, in mind.
Group crime dynamics
“To deter, disrupt, and dismantle criminal organizations” is the phrase often used to describe the mission of anti-gang efforts, and central to accomplishing that mission is an understanding of group crime and gang dynamics. Group crime is significantly different from crimes committed by individuals in several respects: There is an in- creased chance of the planned crime actually occurring, a higher risk of violence, a greater possibility of criminal success, and an increased likelihood of escape.4 Crimes are often better planned and executed by the combined abilities of group members, and the perceived strength in numbers, higher degrees of negative peer influence, and reluctance of participants to back out increases the courage and lowers the inhibitions of its members. As group members successfully commit more crime together, their confidence, cohesion, and ability to commit future crimes significantly increases.
An example of group crime dynamics I share during training comes from a cell phone video of a drive-by shooting that was found through a search warrant. In the video, all four suspects encouraged each other, while the tasks were divided between two shooters who focused on hitting their target, the driver who paid attention to traffic and options for escape, and the other passenger who recorded the act and served as another set of eyes to watch for police and potential witnesses. The presence of fellow gang members made it unlikely that any individual would back out and also reduced each person’s own risk of capture or injury. Had they encountered the police at any point, the size, strength, and abilities of the group would have enabled the escape of most, if not all, of the offenders.
By allowing each party to be charged with the same crime (under the Law of Parties), Texas law recognizes that co-offenders play an important role in the commission of an offense.5 In gang crimes, the mere presence and actions of fellow gang members at the scene can facilitate the crime. Even when appearing to be mere by- standers, gang members often represent their gang by throwing gang signs and yelling the gang’s name, which increases the group’s courage and criminal reputation. These actions, combined with the presence of a group, intimidates witnesses and victims. Fellow gang members also watch for police, prevent others from interfering, and stand ready to physically support the primary offenders should a situation turn against them. Evidence of these group dynamics can be gathered by investigators who know what questions to ask, and qualified gang experts can ex- plain these dynamics to a jury,6 thereby nullifying the argument fellow gang members were nothing more than innocent bystanders.
More than anything else, gang crime de- pends on trust and cohesion between members. To commit crime together, gang members have to be able to trust that their fellow gang members will support them, not only physically, but also by refusing to cooperate with investigators and prosecutors. Trust that they will not betray each other is the glue that holds a criminal organization together. The tighter the bonds between gang members, the greater their involvement in crime7 and the less likely they are to cooperate with the police. Conversely, the less trust and cohesion within the gang, the less crime the gang commits and the more likely they are to cooper- ate with law enforcement. Our ability to impact trust and cohesion is perhaps the most important way the criminal justice system can intervene in the cycle of gang violence. The impact of different strategies is apparent when comparing two different scenarios.
Two scenarios
In the first scenario, gang members are suspected of one or more crimes, and the police or prosecutors decide to arrest or indict group members all at once. The idea is to deal a significant blow, send a strong message, and cripple the organization in one fell swoop. This strategy has its merits for those agencies with the resources and expertise to conduct long-term, in-depth investigations into organized crime, but for those with more limited resources, the next strategy may be more appropriate.
In the second scenario, gang members are suspected of one or more crimes and each suspect is arrested or indicted one at a time, in a slow but steady approach. There is not one fell swoop, but rather a constant chipping away at the group.
When it comes to trust and group cohesion, significant differences emerge between these two strategies. In the first where everyone’s arrested at once, the suspects know one thing for sure: Their arrest was the result of something other than betrayal by their co-defendants. While there may be some fear a group member might break, the knowledge their arrest didn’t come from their co-defendants cooperating with the police can provide reassurance that they all have each other’s backs. If they each hold true to a code of silence and the case doesn’t end in a conviction, the confidence to commit future crimes together can potentially increase if they perceive their solidarity helped them to beat the charge.
In the second scenario, however, where officers arrested suspects individually and over time, gang members may believe their arrests were the result of their previously arrested co-defendants cooperating with police. Arresting and interviewing each suspect prior to the arrest of the next can reduce the gang’s ability to trust each other, and seeds of doubt can be planted—even a small break in trust can provide an opportunity to gather more information about both the current and future crimes. In this scenario, suspects are more likely to turn toward self-preservation and implicate others as the primary suspects while down- playing their own involvement. Each member may begin to perceive other members as witnesses against each other rather than as a cohesive group, even if a conviction isn’t ultimately obtained.
On top of this, co-defendants in an organized crime trial may be required to testify without fear of their testimony being used against them in their own case,8 which can encourage further breakdowns in the trust between gang members. Because they might be worried about what other parties are saying about the crime, co-defendants can become less confident about beating their current charge and more reluctant to commit crimes with the same group in the future.
A similar prosecution strategy can have the same effect, and as each member begins to suspect his fellow gang members have turned against him, each is that much less likely to commit crime with the others. As an example, my colleague, prosecutor Jon West, has effectively used this strategy for years throughout South Texas, with the most recent success being the dismantling of one gang in our jurisdiction through the prosecution of 17 out of 25 members. Some re- main in the community on supervision, but as a group, they are no longer involved in crime to the extent they previously were.
Pulling levers
Gang crime can be effectively reduced through group-centered strategies, but additional progress can be made when prosecutors work with their local police agencies in a focused-deterrence approach. Focused deterrence efforts against gang crime have been studied extensively, most notably in Boston.9 Here is a summary of what happened in that city.
During the 1990s, the city of Boston experienced an unprecedented number of youth homicides, 60 percent of which were gang-related, despite the fact that gangs in Boston at the time represented less than 1 percent of the city’s youth between the ages of 14 and 24. Beginning in 1996, the Boston Police Department led an initiative dubbed Operation Ceasefire, which consisted of more than 40 law enforcement officers and youth workers who, along with relevant partners such as probation departments, community members, and state and federal prosecutors, spread the message to gang members that violence was not acceptable. The message emphasized that while all other crimes would be handled routinely, violence would elicit a strong criminal justice response on the entire gang. Groups, rather than individuals, were held accountable for outbreaks of violence by a coordinated criminal justice response.
When gang members were involved in violence, the criminal justice system focused a response on that specific gang, which included disruption of street drug activity, attention to low-level crimes, service of outstanding warrants, cultivation of informants, strict probation and parole enforcement, asset forfeiture, stiffer plea bargains, extra prosecutorial attention, and special attention from federal authorities, which all came to be known as pulling levers. Essentially, when members of a gang were involved in a violent act, the criminal justice system pulled every available lever against every possible gang member, placing pressure on the group to control the behavior of its members.
The result was that youth homicides dropped nearly two-thirds, from a high of more than 70 in 1990 to fewer than 20 during the years the operation was conducted, the lowest point in Boston in at least 25 years.
Boston’s Operation Ceasefire ran until 2000, when a change of administration suspended the program. Though widely hailed as a success and replicated in other cities, critics were quick to point out that gang violence was already on a downward trend prior to Ceasefire, and it was difficult to determine if the reduction in gang violence resulted directly from this operation. However, in the years after the operation ended, youth homicides in Boston began an upward creep, reaching pre-1990 levels. By 2006, with gang violence again a serious problem, it became obvious that another Ceasefire-style intervention was needed. This time, Boston PD partnered with a team of researchers to study the effects of Ceasefire by matching gangs who were subjected to the Ceasefire treatment with their counter- parts who were not on the receiving end of the intervention. Overall, gang shootings dropped substantially after Ceasefire was re-implemented in 2007, but the total shootings by gangs subjected to the Ceasefire treatment dropped a significant 31 percent in comparison to the other gangs.
As a focused-deterrence approach, Operation Ceasefire represents an effective alternative to the general deterrence model that forms the basis of our criminal justice system, and it is one of the few approaches rated as effective by the National Institute of Justice. Often, the extra attention is exactly what gang members need to re- consider their gang involvement, as incarceration, intensive police investigation, and other criminal justice threats are reported as one of the primary reasons for gang desistance, second only to personal and vicarious victimization.10 The most important elements of the focused-deterrence approach are the direct advertising of the deterrence message to the target audience, including what behaviors will provoke a special criminal justice response, exactly what that response will be, and then following through with that very response.11 Prosecutors can sup- port local police agencies in this approach by giv- ing special attention to gang cases, reinforcing the deterrence message, and helping police utilize resources and tools, which are readily available.
Resources and tools
It can be argued that Boston PD had the re- sources necessary to devote to the city’s gang problem but that similar efforts would be impossible in smaller jurisdictions. However, when put in perspective, the 40 or so people who worked on Ceasefire represented less than 2 percent of the more than 2,000 officers in the department, and the city’s large size meant it also had more gangs than most of us. Smaller agencies can implement a similar approach, sometimes with only one or two officers, when they have the appropriate training, investigative support, and an under- standing of the resources available to them. Gang search warrants and search warrants for persons, for example, are some of the easy-to-use and effective means of pulling levers to reduce gang violence without requiring a significant amount of additional resources, but the first step of any gang violence reduction strategy is gathering data and evidence of gang membership by documenting gang members in a database.
Gang documentation. Addressing a gang problem in any jurisdiction first requires identifying the gangs and their members. Knowing the size and scope of the problem, the relationships be- tween gangs and individual members, gang dynamics and organizational structures, and how to gather evidence of gang membership is the basis for successful investigation and prosecution. The initial hurdle is often that gang members are mostly known on the street only by their nicknames, making identification difficult when the nicknames aren’t known or available to investigators. Gang databases provide a location to gather criminal intelligence such as nicknames and other identifiers, which can often be done by patrol officers as they come across gang members on the street, but certain criteria must be met for an individual to be documented as a gang member in a database or to bring evidence of gang membership into court proceedings.
These requirements include either a judicial self-admission of gang membership or a judicial finding that the individual is a member of a criminal street gang, which prosecutors can often obtain during the plea bargain process. Outside of this, a combination of two or more of the following is needed:
• a non-judicial self-admission,
• identification by a reliable informant,
• corroborated identification by a source of unknown reliability,
• use of gang dress, hand signs, tattoos, or symbols,
• evidence of being arrested or detained with gang members on a gang-related offense,
• use of the internet to recruit new members,
• frequenting a documented gang area and associating with known gang members, or
• visiting a known gang member while that member is incarcerated.12
When used together, the last two—associating with known gang members and visiting an incarcerated gang member—require one of the other criteria as well.
In documenting gang members, agencies can use their own local databases or TXGang, a searchable database maintained by the Texas Department of Public Safety, which allows agencies to store and share information on gang members with other agencies, including email notification when arrest warrants are entered for gang members in an agency’s jurisdiction.
Search warrants for persons. After spreading the message to gang members that violence will result in special attention, the most effective lever to pull may be a search warrant for a per- son13 arrested for violent felonies. Just as the potential for narcotics search warrants keeps drug dealers wary of how they conduct their drug business, the potential for search warrants when gang members commit violent crimes can make gang members wary of engaging in violent acts. This type of search warrant can be used to arrest specific suspects after obtaining arrest warrants in a case of gang violence or as part of the levers pulled against the whole gang when members have outstanding felony warrants. While officers can gain warrantless entry into a residence in felony cases if they have probable cause to believe a wanted person is inside,14 a search warrant for that person provides additional assurances that constitutional rights are upheld and that officers are acting in accordance with the law.
Commonly, plain-view evidence of other crimes comes up while executing the warrant, so investigators should also be prepared to obtain another search warrant and continue with a secondary investigation after the arrest. Even if evidence of other crimes isn’t apparent, there may be opportunities to gather evidence of the original offense or of gang membership through a search warrant.
Gang search warrants. Search warrants in gang cases can seek evidence of the suspect’s gang membership, including photos and documents depicting the suspect in the case, the gang, or gang member names, nicknames, signs, and symbols,15 and this evidence can often be found in gang members’ homes, vehicles, and cell phones. On top of establishing gang membership, gang- related evidence can explain the motivation for the underlying crime, identify other suspects, and provide leads for further investigation.
However, to obtain this type of search warrant, an abundance of facts must establish probable cause that the suspect gang exists, that the suspects are members of that gang, and that the underlying crime was done for a gang-related purpose. Though the information is often not needed at the time it is gathered, it is the day-to- day documentation of gang membership and the dynamics of gangs within a specific jurisdiction, through documented field interviews in gang databases, that establishes the probable cause necessary for this type of warrant. Gang search warrants are not a typical warrant for most investigators, so support from the prosecutor’s office may be needed in drafting one. Documentation of the affiant’s expertise relating to gangs—his training, education, and experience—can also support the probable cause needed for the war- rant. More information on these warrants can be found in the Gang Prosecution Manual published by the U.S. Department of Justice in 2009.
Developing local experts. Though some gangs can span large geographical areas, most are local problems requiring local expertise. Officers can develop gang expertise through the daily process of documenting gang members in their jurisdiction, as well as through in-service training. The Texas Gang Investigator’s Association (TGIA) is an excellent resource for this, with many regional courses offered free of charge at least once a year, in addition to TGIA’s annual conference. Many gang officers are willing to bring courses to those agencies whose officers are unable to attend the larger training sessions, as most understand the importance of working together against gang crime. Prosecutors can benefit by facilitating such training, as it helps them build stronger cases and develop local experts.
Conclusion
Gang documentation and the development of local experts serve as the foundation for successful investigation and prosecution of gang crimes. Through this documentation, agencies can then implement evidence-based gang violence reduction initiatives, such as Operation Ceasefire, using tools and resources such as TXGang, gang search warrants, search warrants for persons, and investigative strategies designed to decrease gang trust and cohesion. As trust and cohesiveness within a gang erodes, gang crime and gang member victimization begin to disappear as well. The cooperation that emerges between police and prosecutors in this process can lead to significant reductions in gang violence, and safer communities for everyone.
One way to know if a different approach is needed: gang members are disproportionately involved in violence in comparison to their peers, so review the aggravated assault rates in your jurisdiction. If they’ve been on a significant upward trend, it could be a sign of a building crisis and soon-to-be increase in gang murders.
Please email me at [email protected] with questions or for assistance.
Endnotes
1 Wu, Jun &Pyrooz, David. “Uncovering the Pathways between Gang Membership and Violent Victimization.” Journal of Quantitative Criminology, 32 (2016) 531- 559. doi: 10.1007/s10940-015-9266-5=207.
2 Texas Department of Public Safety. Crime in Texas (1999-2017); www.dps.texas.gov/administration/ crime_records/pages/crimestatistics.htm.
3 Id.
4 U.S. Department of Justice: Gang Prosecution Manual (2009); www.nationalgangcenter.gov/content/documents/gang-prosecution-manual.pdf.
5 Tex. Penal Code §7.01–.02.
6 U.S. Department of Justice: Gang Prosecution Manual (2009); /www.nationalgangcenter.gov/content/documents/gang-prosecution-manual.pdf.
7 Klein, Malcolm W.,& Maxson, Cheryl L.“Street Gang Patterns and Policies.” New York, NY: Oxford University Press (2006).
8 Tex. Penal Code §71.04.
9 Braga, Anthony A., & Winship,Christopher. Partnership, Accountability, and Innovation: Clarifying Boston’s Experience with Pulling Levers. In Weisburd, David L., & Braga, Anthony A. (eds) Police Innovation: Contrasting Perspectives, 191-190. New York, NY: Cambridge University Press, 2006; Braga, Anthony A., et al. “Problem-Oriented Policing, Deterrence, and Youth Violence: An evaluation of Boston’s Operation Ceasefire.” Journal of Research in Crime and Delinquency, 38 (2001): 195–225; Braga, Anthony, et al. “Deterring Gang-Involved Gun Violence: Measuring the Impact of Boston’s Operation Ceasefire on Street Gang Behavior”; and Journal of Quantitative Criminology, 30 (2014): 113-139. doi: 10.1007/s10940-013-9198-x; Kennedy, David M., et al. “The (Un)known Universe: Mapping Gangs and Gang Violence in Boston.” In Weisburd, David, & McEwen, Tom (eds) Crime Mapping and Crime Prevention, 219- 262. Monsey, NY: Criminal Justice Press (1997).
10 Berger, Rony, et al. “The Process of Desistance among Core Ex-gang Members.” American Journal of Criminology, 87, No. 4 (2017): 487-502. http://dx.doi.org/10.1037/ort0000196.
11 Braga, Anthony, et al. “Deterring Gang-Involved Gun Violence: Measuring the Impact of Boston’s Operation Ceasefire on Street Gang Behavior.”
12 Tex. Code Crim. Proc. Art. 67.054.
13 Tex. Code Crim. Proc. Art. 18.02(a)(11).
14 Tex. Code Crim. Proc. Art. 15.25.
15 U.S. Department of Justice: Gang Prosecution Manual (2009); www.nationalgangcenter.gov/content/documents/gang-prosecution-manual.pdf.