Anti-gang Legislation: More cons than pros

By Yvonne McCalla Sobers

Jamaican gangs wreak havoc on the society. They steal, murder, extort, intimidate, traffic in guns and drugs, and pose as legitimate business persons. They also spread a “gangsta lifestyle” that has found its way into aspects of Jamaican culture.

The gang threat has persisted in Jamaica despite laws intended to contain gangs. Jamaica’s murder rose from 8 per 100,000 (1974) to 64 per 100,000 (2007) despite draconian Gun Court and Suppression of Crimes Acts. In addition, numbers of gangs have increased from 35 (1994) to 85 (2004) to 200 (2011).

Nonetheless, politicians continue to use methods shown to increase crime rates and gang numbers. Cycles usually begin with public panic about crime, followed by a demand that politicians do “something” about crime. Politicians then respond with draconian laws that send gangs underground. Public panic subsides until crime rises again, with gangs posing an even greater threat than before. These cycles worsen police-citizen relationships, with police acting more and more like community invaders rather than protectors, and the public becoming more and more mistrustful of the police.

After the most recent lull after the draconian Crime Acts of 2010, crime is on the rise again. The current Minister of National Security seems to feel once more obliged to do “something” about crime. Despite evidence to the contrary, security ministers of the past 40 years have persisted in believing that:

  1. Punitive measures scare off gang members and prospective gang members;
  2. The threat of incarceration will make gang members refrain from committing crimes;
  3. Police and prosecutors can distinguish between gang members and non-gang members;
  4. Gang- related crime can be reduced by locking up those loosely termed “gangsters”.
  5. Long prison sentences for “gangsters” will reduce crime, make communities feel safer, and make youth less likely to join or remain in gangs.
  6. Social intervention can begin only when “gangsters” are off the streets.
  7. Gang violence can be addressed by depriving law-abiding citizens of their fundamental rights and freedoms.

Enforcing anti-gang legislation

Because the term “gang” is so subjective, anti-gang legislation has proved difficult to enforce. “Gang” criteria may also apply to groups of persons who form clubs. More importantly, anti-gang legislation has been shown to breach the fundamental rights and freedoms of citizens.

The US, Canada, and Australia target gangs that can be identified by colours, clothing, tattoos, symbols, or hand symbols. Biker gangs even have trademarks, websites, and written constitutions. However, those who wear “gangsta fashion” are not necessarily gang members; and gang members do not necessarily conform to a dress code.

Gang activity in the US continues to be a widespread problem, although 28 states (beginning with California in 1988) have anti-gang legislation. Gang violence has risen despite an overall drop in crime. American Civil Liberties Union (ACLU) contends that anti-gang laws do not work; they may even worsen gang violence by shifting criminal activity to new areas. In addition, there is the view that anti-gang legislation in the US breaches constitutional rights.

Canadian critics of anti-gang legislation say these laws are flawed because they seek to penalize people for being members of a group and not for themselves committing a crime.

On June 23, 2011, the Australian High Court declared the anti-gang law to be invalid. An Australian law research fellow said, “I have great concerns about laws which criminalise membership in organisations as opposed to individual criminal behaviour. This is much the practice of dictatorial regimes with little regard to the right to assembly and freedom of organization.”

South Africa has a major difficulty in prosecuting gang members under its 1998 anti-gang legislation. Without clear definition of a “gang”, South African police are unable to produce evidence strong enough for prosecutors to build strong cases against gang leaders.

A former attorney general described the Trinidad and Tobago Anti-Gang Act as “flawed” because gang and gang-related activities could not be defined in criminal law. Because of lack of evidence, police in Trinidad and Tobago had to free all 463 persons under anti-gang laws passed in May 2011, and since September 2011 they have arrested no one under these laws.

Problems of anti-gang legislation

The experience of other countries suggests that anti-gang legislation is likely to: Increase rather than decrease a country’s justice and security problems. Undermine confidence in the authorities because these laws are difficult to enforce fairly if at all. Put increased power in the hands of police who risk being corrupted by power for which they are not held accountable. Encourage police to rely on force, falsehood and scare tactics to secure convictions, rather than on the painstaking business of gathering information. Embolden rather than suppress gangs because the laws are tinkering around the edges to little effect. Further victimize poor, black, uneducated young men who wear “gangsta fashion” (such as bandanas, baggy pants, and ornate jewellery) and live in low-income communities. Risk constitutional challenge for breaching rights of association, freedom of movement, and presumption of innocence.

Jamaican context

According to Albert Einstein, insanity is doing the same thing over and over again and expecting different results. If Jamaica is to change the national security experience of the past 40 years, politicians, especially those favouring anti-gang legislation, need to reflect on questions such as:

  1. Exactly what problem is anti-gang legislation intended to solve?

  2. Why have gangs increased in despite previous draconian laws?

  3. To what extent is the proposed anti-gang legislation yet another reactive attempt to be seen to do “something” about crime?

  4. How will anti-gang legislation remove gangs from the streets?

  5. How will “gang” be defined in criminal law?

  6. What are the viable alternatives to anti-gang legislation?

Doing “something” under pressure has temporarily removed symptoms while leaving causes to fester. What seems vital in 2012 is to seek solutions that will engender respect for the individual as well as justice and security systems, while protecting the collective and preventing crime.

Mrs. Yvonne McCalla Sobers in the Convenor of Families Against State Terrorism (F.A.S.T.). She is a retired teacher and a community and human rights activist living in Jamaica.

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