The New York State Senate, remiss in not using street gang hysteria to prove how tough on crime it can be in an age of incredibly low crime, is on the cusp of enacting Article 495 to the Penal Law, a new series of “Criminal Street Gang” crimes. Its opening salvo of definitions is a textbook example of how hard it is to write law.
S 495.05 DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL MEAN AND INCLUDE:
1. “CRIMINAL STREET GANG” MEANS A STREET GANG THAT ENGAGES IN A PATTERN OF CRIMINAL STREET GANG ACTIVITY FOR ITS BENEFIT OR FOR THE BENEFIT OF ONE OR MORE MEMBERS. AS USED IN THIS ARTICLE, THE TERM “STREET GANG” MEANS AND INCLUDES ANY FORMAL OR INFORMAL ASSOCIATION IN FACT OF TWO OR MORE INDIVIDUALS IDENTIFIED BY A COMMON NAME, SIGN, DRESS, SYMBOLS, TATTOOS, OR OTHER MARK OR MARKINGS.
The definition is really two definitions lumped together. The first part defines “criminal street gang” as “a street gang that engages in a pattern of criminal street gang activity.” When a definition uses the word or phrase being defined to define it, it’s utterly worthless. For those who say, well, it says “criminal street gang,” and everybody knows what that means, you’re required to listen to Dylan all day today.
The second part of the definition provides the partial (“includes”) indicia of gang membership: “common name, sign, dress, symbols, tattoos or other mark or markings.” Does that cover the Crips and Bloods, MS-13? Sure. It also covers junior’s little league team, the girl scouts and the high school marching band.
But does putting the two together change things? Not for anyone with a remote familiarity with the criminal justice system. Think a band member gets caught smoking a joint, shoplifting, fighting with the tuba player from the hated neighboring high school. Or maybe even a college fraternity engaged in hazing its pledges.
Whether there is any reason to create a separate Article in the Penal Law to address gang crime is a dubious proposition. Like those who think hate crimes are worthwhile, the conduct involved is already criminal, and this just adds a facile layer on top to soothe the psyche of those who hear scary words like “street gang” and can’t comprehend why there aren’t super-di-duper laws to punish them. Because life alone isn’t harsh enough, we need life plus cancer because their crime feelz much worse than when it’s just your ordinary, run-of-the-mill drug dealing or murder.
When it is abused, and it’s rife for abuse, remember that it’s very hard to write laws that criminalize what ails ya without sweeping in the cub scouts. This is particularly troubling when it’s a law that isn’t needed in the first place.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
In California, whenever I’ve raised this argument, the judges just say, “Oh, come on now! It doesn’t include the Cub Scouts. It doesn’t include cops. It has to be actual criminal street gang members.”
Don’t bother pointing out to them that you’re using the statutory definition that is supposed to help you identify actual criminal street gang members. They’ll just look at you like you’re the crazy one.
“the judges just say, “Oh, come on now! It doesn’t include the Cub Scouts. It doesn’t include cops. It has to be actual criminal street gang members.””
Given how little difference there is between some cops and criminal street gang members, maybe it should apply to them as well.
Did you come up with that idea all by yourself?
As you know (that I know), you’re light years ahead of us on the ways cops abuse gang characterizations to smear innocent people by claimed associations with “violent street gangs.” Those who don’t share your experience won’t get it until it’s too late.
The abuse—and, again, I know you know this—is off-the-charts. Entire neighborhoods become subject to arrest for being criminal street gang members just for hanging out with friends, and even relatives. I mean, seriously, come on! Relatives?
But that’s what this kind of legislation does. It’s a blunt weapon meant to give cops a way to keep entire populations under control; not just criminal street gangs.
People need to understand that (as your article here helps them to do if they will listen). Then they need to tell their representatives they want no part of this.
Writing superfluous laws like this are necessary in New York, because,…. everybody knows, that’s where all the gangs are. I mean, how many gangs do you have in Utah? Unless you count polygamous Mormons as a gang?!? In Alaska, gangs of dog mushers. In Florida, gangs of scuba divers coral thieves. In Caulifornia, gangs of surfers and would be actors and actresses. In Silicon Valley, gangs of techies converging in awe-inspiring conventions and TED Talks. In New Hampshire, gangs of outlaw bikers converging for their annual biker rally.
Plus, the lawmakers have to ‘make’/invent laws; otherwise they’ve got nothing else to do to justify their existences.
Having flashbacks to your Hell’s Angels days?
We’ve learned not to respond to your replies. Ha. Actually, we’ve never driven a Harley, but we rode on the back of one once. I was the b!tch. It was exhilarating!
You see, we’re the artsy-fartsy type. Zen and the Art of Motorcycle Repair, shall we say? We’d rather ogle and take a picture of one rather than own one. Finally, we miss the GreatFull Dead. Ha. You’re close.
You obviously haven’t learned well enough. That said, good to know you find being the bitch exhilarating. Probably answers a lot of questions for other readers.
That was a great movie though. Very cinematic.
Cinematic should have been included in the definition.
So how far down does this rabbit hole go? What does it mean to engage in a “pattern of criminal street gang activity?” Well, apparently it means members of the group have committed at least two acts of “Street Gang Activity” within a three-year period. What’s “Street Gang Activity”? Well, apparently it’s any one of a number of felony crimes defined within a laundry list of penal code sections, several of which don’t actually seem to define a felony crime. What felony crime falls under Criminal Trespass in the Third Degree? There’s also a list of penal code sections that apparently count even if they don’t define felonies, including Criminal Mischief in the Fourth Degree, and Making Graffiti.
So assuming you can find Girl Scouts who’ve doodled on picnic tables in two separate incidents, it appears they could meet not only the definition of “Street Gang”, but “Criminal Street Gang”.
Does anybody ever ask, “why did Scott address a narrow slice and not go down the rabbit hole to the point of turning into a huge pile of meaningless feces?” If so, do they then ask, “so if Scott chose to stop there, would it be a good idea of I, on Scott’s blog, dumped that huge pile of meaningless feces instead?” Asking for a friend.
No.
Yes, but you only see the people who don’t. Classic confirmation bias. I hope this helps.
That’s why I have you.
Words of wisdom from a judge, now sadly deceased, (and not said on the record, of course), “They should never let the legislature mess with criminal law. They just fuck it up.”
Legislators have but one job, to get re-elected. It’s incompatible with good criminal laws.
“Any formal or informal association in fact of two or more individuals identified by a common name, sign, dress, symbols, tattoos or other mark or markings”.
Royal Canadian Artillery, it just doesn’t roll off the tongue as Gangsta, but in nearly every other respect (tattoos excepted)……
The New York State Senate is of course itself a street gang under Article 495. Good thing Dean Skelos isn’t still working there, huh? I knew Preet was good for something.
They all dress alike and have the same death’s head tat.
Scott, I feel like you’re being a bit duplicitous. Read a bit further down and it defines “criminal street gang activity” without reference to “criminal street gangs”
It’s poorly written, sure, but unless your cub scouts go around commiting felonies, they aren’t a criminal street gang.
Felonies? Like criminal mischief 4, trespass 3, stalking 4, menacing 3? There’s a long laundry list of offenses, ranging from murder to B misdemeanors that even cub scouts could commit.
Couldn’t carrying an open-assist knife also count because it’s a “gravity knife” under New York Penal Law §265.01? I could see an older scout carrying one as a matter of wilderness training, or just to sharpen a stick for roasting a hot dog.
Absolutely. And whatever isn’t there now will be there in a year or two, until every offense in the Penal Law will be covered. But from the outset, the breadth of coverage is staggering, and can be used to turn anybody into a “reputed” gang banger.
At which point incarceration can help turn the reputed gang-banger into a real one, thus proving the wisdom of the original definition.
Let’s say you’re right, Adam. What benefit does this law provide you in the case? Is there any point to the guilt by association that the “cub scouts” would be subject to if they engage in a “pattern of criminal activity”(i.e. two very evil boy scouts commit two very evil felonies like stealing candy from a baby). You can’t imagine how this guilt by association will be used to hunt down “cub scouts” after police extract a confession that you’re actually part of them? Guilt by association worked so well in stop and frisk, why not here?
> OR PROHIBITS PUPILS FROM WEARING “GANG-RELATED APPAREL”
Baggy jeans and hoodies are gang-related apparel! I wonder who this will target disproportionately. Luckily progressive will be on the case, right after they’re done deciding which pronoun to use.