Op-Ed: California Gang Laws Are Normalized Racism

By Emily Galvin-Almanza, The Appeal

On Dec. 10, 2016, Darrell Caldwell, a rapper known as Drakeo the Ruler, pulled up to a party near the Los Angeles International Airport. According to recently filed court documents, he was with a mix of friends, including supposed-rival Crip and Blood gang members and others as well. Caldwell was socializing outside the party when one of his passengers, Mikell Buchanan, began shooting at Davion Gregory, a rival gang member, from Caldwell’s car. A teenager outside the car, Jaiden Boyd, allegedly also opened fire. Gregory was shot and killed.

Caldwell didn’t pull the trigger. He has always maintained that he is not a gang member and the shooting came as a complete surprise to him. Later, a witness would testify that Caldwell hid under the dashboard thinking he and his friends were under attack. But two years later, prosecutors with the Los Angeles County District Attorney’s Office would charge Caldwell with a murder, launching a yearslong crusade to lock him away for life.

Under ordinary circumstances, simply being at the scene of a crime is not illegal (California’s “felony murder” rule was recently restricted because it punishes people for deaths they didn’t cause). But Caldwell and his friends were subject to policing based on the California gang database, an imprecise and sweeping list of everyone the police suspect of gang affiliation. The database is state-funded but unregulated and maintained by law enforcement. California’s Street Terrorism Enforcement and Prevention (STEP) Act, which has shaped the state’s gang laws, has given prosecutors broad latitude to charge people with felonies even when they didn’t personally engage in misconduct.

Gang enforcement begins with “documentation”: labeling certain people as gang members in the CalGang database. How people get into the database varies wildly. Tattoos and arrests can certainly cause documentation, but so can neighborhoods, friendships, families, or even schoolbook marginalia. In the case of Caldwell and Tiny Doo, another rapper from San Diego, music lyrics have been used to assign gang designations that the musicians themselves contest. Once that person is in the database, police have reason to approach them and detain them at will. Police use these tactics almost exclusively to document people of color—only about 8 percent of documented individuals are white, according to a 2015 audit of the CalGang database.

The database gives police increased authority to approach and harass people for virtually no reason. And STEP allows courts to criminalize normal behavior, using civil injunctions to make it a crime for children to wear designated colors, for people to visit certain locations or be out after hours, and even for family members to see one another. I learned this during my first summer of law school, working for the Los Angeles County Public Defender in the Eastlake Juvenile Court, where I tried to help mothers navigate court orders that said two children couldn’t be in the same house, or orders to throw out all blue or red or purple or even gray clothing. Once these children were charged, STEP stripped away the due process protections intended to protect accused people from unfair verdicts. Then it lengthened sentences by years, if not decades.

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Documentation starts young. Police track kids as young as 10, said Sajid Khan, a deputy public defender and host of the “Aider and Abettor” podcast. But by the time a child is finally arrested and has access to a lawyer, there may be years of police contact built up—years of encounters, relationships, grudges, and admissions. José Valle, a community organizer with Silicon Valley De-Bug, described to me how “at-risk” and “gang-impacted” are just gradations of what Black and Latinx communities look like to law enforcement. “The system is punishing or criminalizing you merely because of your culture and where you grew up and had to create a sort of form of survival.”

I was pulled out of Eastlake Juvenile halfway through the summer to assist with a homicide case downtown. We were defending Charlie, who was almost exactly my age and grew up in a heavily documented neighborhood near where Caldwell was raised. He had a new baby at home and a deeply loving, close-knit family. Like Caldwell, he was subjected to obsessive gang policing. Unlike Caldwell, prosecutors claimed he was the triggerman in a shooting at a party where two people were killed and others injured.

It didn’t matter that all survivors of the shooting identified another man as the shooter, that man had already been convicted of the shooting, and witnesses testified that Charlie had been elsewhere at the time. Police insisted Charlie was a gang member, and he must have been a second shooter, somehow unseen and unmarked by gun residue.

The police testifying in Charlie’s case were men he had known for years. Charlie explained how they had come to hate him when he had publicly mocked one officer for thinking he had a gun on him when he didn’t. Charlie had the wrong circle of friends, but never seemed to be caught up in anything serious (his most serious prior conviction was for joyriding) and in the intimate world of gang enforcement, his local cops were convinced Charlie was hiding something.

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Ten years later, the police were treating Caldwell the same way they had treated Charlie. Police spent two years trying to find a way to link Caldwell to the 2016 murder. They watched hundreds of hours of music videos, interpreting lyrics. They spent New Year’s Eve lying on a dirt mound, spying on Caldwell’s home. Rather than moving forward with prosecuting the actual shooters, Los Angeles County District Attorney Jackie Lacey’s office waited to bring the case to trial for years so that officers could build a case against Caldwell.

When Caldwell’s case finally went to trial, the jury rejected the prosecutor’s assertion that he was guilty of murder, attempted murder, and conspiracy to commit murder. In fact, out of 11 counts, the jury convicted him only of gun possession. But crucially, the jury split on the charge of promoting a gang.

On the day of his sentencing, having already spent almost two years in custody, Lacey’s deputy district attorneys announced that Caldwell would not be sentenced or released. They wanted to try him again—accusing him, again, of the gang charge. A charge so broad, prosecutors claim they don’t need to prove Caldwell had intent or even an agreement to kill anyone, merely that the gang’s crime should be attributed to him by association.

Still incarcerated, and having spent eight months in solitary confinement, Caldwell asked the court to dismiss the remaining charges, but last week his motion was denied. His lawyer, John Hamasaki, said, “We have full confidence in a jury to get it right. As it has once already.” Caldwell is expected to go to trial next month.

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Generally, the law doesn’t allow prosecutors to allege guilt by association. Prosecutors aren’t allowed to convince a jury that the defendant is a bad person simply because they know bad people, let alone tell juries about all the bad stuff those other people did when the accused wasn’t even around.

But in gang cases, prosecutors often seek to prove the defendant’s guilt using evidence of other crimes committed by other documented members of an alleged gang whom the defendant may not even know.

“It becomes this trial of the gang, as opposed to a trial of the individual,” said Khan. “The individual gets lost in the shuffle. The individual accused of the crime is a tangential part of the trial process, because what gets highlighted are the ugly or serious and violent crimes of other gang members rather than the actual conduct of the accused in this current case.”

When this happens, the jury is inundated with evidence of other crimes committed by other people. Khan explained that in his experience, juries tend to lose sight of what the trial is actually about—whether an accused person did a particular thing. “What actual evidence there is against the individual offender almost becomes somewhat irrelevant,” he said. “Gang laws permit—not even a backdoor, just a front door to tremendously prejudicial information to be entered into evidence and become kind of the star of the show against the individual.” Juries are tempted to decide that the details don’t matter, because the accused person is clearly a bad person who knows bad people who do other bad things. They get tempted to vote for conviction, regardless of whether anyone has proved guilt beyond a reasonable doubt.

These convictions have dire consequences. Gang involvement can result in life in prison even when the accused had no direct involvement in the incident. Even simply painting graffiti can become a felony punished by years in prison if a person is accused of tagging for a gang. As Valle explained, “If you get caught for a strong-arm robbery and you’re white, you’re going to get whatever’s coming to you for that specific charge. If you’re la raza or if you’re Black or Samoan, if you get caught with the same strong-arm robbery, more than likely you’re going to get a gang enhancement, and with the gang enhancement, you’re going to do a whole lot more time than the average person would for that charge.”

Caldwell’s case has caught public attention, but this practice of sweeping young men onto the gang database and then systematically targeting them for arrest and prosecution is fundamentally common throughout California. As Valle says, “you don’t have to be a famous entertainer for these types of things to happen.”

This is the system that cost my client, Charlie, everything.

It would eventually come to light that police had pressured the only supposed eyewitness to lie about Charlie’s involvement. The young man, a teenage runaway, spent two days on the witness stand, crying and apologizing for his role in the setup. He explained that police had threatened him with prison time for drug possession if he didn’t identify Charlie as the shooter. Other witnesses remembered seeing Charlie elsewhere at the time of the shooting, dancing with a girl inside the party.

With little evidence of actual guilt, jurors were instead subjected to a slew of gang evidence. Prosecutors presented crime after crime committed by other people whom Charlie supposedly knew. Suddenly, it didn’t matter that witness after witness remembered Charlie being elsewhere when the shooting happened. Charlie was convicted of murder and sentenced to life without parole.

Caldwell and Charlie were arrested over a decade apart. Though other vestiges of California’s tough-on-crime era have begun to be reformed over that time, STEP has continued to move California further from justice. DA Lacey is perhaps most responsible for pressing forward with the worst aspects of California law: Her record is one in which only men of color are sentenced to death, in which she has refused to answer calls to step away from using corrupt officers as witnesses, and which still, 20 years after STEP was conceived, still leaves young men of color to face harassment, obsessive policing, and criminalized association. While the rest of the state focuses on vital reforms, young men like Caldwell and Charlie are left in the dark, fighting against a special, vastly more penal legal scheme reserved for Black and Latinx people.

By creating a scheme that corrals communities of color and subjects them to different rules of engagement, the law has formalized a pipeline of people from heavily policed communities into the prison system. The STEP Act is a vestige of the tough-on-crime 1980s, now vastly out of date with California’s push toward safety- and justice-oriented reforms. Lacey’s persistence in using these outdated laws against Caldwell has garnered national scrutiny, but the damage to thousands of other people is often overlooked. Groups like Pillars of the Community, Silicon Valley De-Bug, A New Way of Life, the Los Angeles Community Action Network, the ACLU, and others have spent years trying to raise awareness and find restorative solutions to gang conflict, but the widespread nature of this race-based enforcement is still difficult for many outside the legal world to fathom.

By making arrest more likely and conviction more certain, prosecutors who embrace these schemes are implicitly choosing winning over justice. And every time they sidestep the burden of proof by using gang laws and use guilt by association instead of guilt beyond a reasonable doubt, they are taking us further from the rule of law.

This tilted playing field will now determine whether Caldwell goes free, or whether he spends most of his life in a cell.

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Charlie spent nearly a decade in California’s worst prison appealing for a fair trial. When he finally received it, more careful legal rulings required the prosecutor to focus on the actual accusation at hand, without being able to rely on other people’s gang crimes. Given a chance to be tried on his own actions, Charlie was found not guilty on all charges.

In the end, Charlie won, but not before he lost his youth and his chance to be a part of his daughter’s childhood. Charlie’s mother never missed a court date during the time he spent fighting for his life, but she died of heart failure before she got to see him come home.

Caldwell and Charlie are just two of the people who have grown up among generations of young men and women of color in California with the knowledge that the rule of law is designed not for their protection, but to be used against them.

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This commentary was originally published on The Appeal, a nonprofit criminal justice news site.

Emily Galvin-Almanza is Senior Legal Counsel for The Justice Collaborative. The Appeal is an editorially independent project of The Justice Collaborative, which is a fiscally sponsored project of Tides Advocacy.

Image: CalGang Mission Statement from the California Department of Justice.