Evolving or Catering? Gascón and Gangs

By Eric Siddall

Ever the opportunist, candidate George Gascón is continuing his disinformation campaign with the hope of winning over progressives. This time, his sights are set on the gang enhancement. This enhancement, first enacted in 1988 in the midst of a gang crime wave throughout California, ensured gang motivated crimes received tougher sentences. With 10,000 gang-related homicides in California from 1981-2001, 75% of which occurred in Los Angeles County, the enhancement received unanimous bipartisan support when it was passed. Today in the city of Los Angeles alone, there are about 45,000 gang members, and over the past three years there were roughly 16,000 gang related crimes, including 491 murders. These numbers do not include the rest of Los Angeles County, the population of which Los Angeles City constitutes 40%.

Although violent crime has fallen in L.A. over the past two decades, make no mistake: We still have a gang problem. In 2020, we are unlikely to see, as we did in 1988, a Karen Toshima getting murdered in Westwood – a tragic incident the Los Angeles Times described as the “Murder that Woke Up LA.” But for those forgotten residents of neighborhoods claimed by gang members, for those who still must live with the daily terror, these organizations inflict on the community, gangs remain a real danger. As Maxine Waters so aptly observed in 1998, 10 years after the murder of Karen Toshima: “The black community has known for years that a problem is not a problem until it hits the white community.”

It is not just prosecutors who understand gang enhancement’s importance. Our highest state court has found, “there is nothing absurd in targeting the scourge of gang members committing any crimes together and not merely those that are gang related. Gang members tend to protect and avenge their associates. Crimes committed by gang members, whether or not they are gang related or committed for the benefit of the gang, thus pose dangers to the public and difficulties for law enforcement not generally present when someone with no gang affiliation commits a crime.” People v. Albillar, 51 Cal.4th 47, 55. (2010)

But for George Gascón the gang enhancement is a political football. In his attempt to curate his message to progressive voters, he has stated he will refuse to charge gang enhancements if elected Los Angeles County district attorney. He took this position in front of progressive activists. Perhaps realizing that this same message may not play well to a larger audience, he later qualified this statement during an interview and said he would rarely or never charge the gang enhancement. Gascón proceeded to justify his position: “I started looking at status enhancements, enhancements that are based not on what you are doing at the moment that you are being charged with, but enhancements that are a consequence of your prior behavior or alleged behavior, and gangs are one of them.”

It is not surprising that a man who has never tried a case-much less a gang murder-has this uninformed opinion about the law. The law does not criminalize the status of being a gang member, but criminalizes the conduct committed during the crime. In other words, being a gang member in and of itself is not a crime. The gang enhancement requires that the crime be conducted for the benefit of, at the direction of, or in association with a gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. In fact, a non-gang member is equally guilty of the gang allegation if he meets these criteria. And here is the bottom line: if no crime is committed, there is no enhancement, because the enhancement requires the defendant to have committed a crime in the first place.

So when Gascón says we are criminalizing a person’s prior behavior, i.e. joining a gang, he either knows nothing about the statute he is critiquing or he is creating a straw man to justify his position. Never mind that this new position is in stark contrast to the one he had when he was District Attorney in San Francisco: there Gascón charged gang enhancements more than 451 times.

Gascón resigned his position as district attorney in San Francisco with more than a year left to serve. It seems he is also willing to abandon any prior positions or principles he might have had if he believes doing so will help his election chances. Fortunately, the voters will be able to evaluate Gascón by his record, not his words.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

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