92% black or Latino: the California laws that keep minorities in prison
When Lucero Herrera stepped out of the San Francisco county jail on a cold, dreary autumn afternoon in 2008, she didn’t go back to the home in the neighborhood where she grew up.
The 18-year-old had served a little over a year in juvenile hall and county jail after a conflict between different street gangs in her community in the Mission District, San Francisco’s historically Latino neighborhood, turned into a violent fight.
The years leading up to the fight had been turbulent. Herrera and her brother moved from El Salvador to San Francisco when they were kids. Herrera’s youth was often rough, she said. Her mother, who worked multiple jobs and as a result was rarely home, struggled with drug addiction and was abused by some of her partners. Law enforcement had identified her brother as a member of a gang. And despite their reputation among law enforcement, local gang members, Herrera said, were some of the people who supported her most, and encouraged her to stay in school despite the chaos around.
Following the fight, authorities charged Herrera with assault with a deadly weapon and street terrorism. She was also ordered to register as a gang member upon her release, leave San Francisco and carry around a card detailing her gang membership at all times.
Herrera was paroled to a transitional house in the city of Oakland, separated by the bay from her support system in the Mission. “I was in the unknown. I had to do what I had to do to take care of myself,” she told the Guardian about her time in Oakland.
She ended up in the underground street economy, she said, exchanging sex for money to pay for public transit, clothes and food. She struggled to stay connected with her mom, who was still battling addiction and had become homeless. Herrera was regularly abused by her pimp, she said.
After a particularly bad beating left her with two black eyes and landed her in the hospital, Herrera tried to escape, she said. But her pimp and a client who had come to her aid got into a fight, and Herrera ended up arrested again. This time, she faced a sentence of almost three years because of her conviction record and alleged gang ties.
“They looked more at the gang ties than at the beating by my pimp. Even when I was trying to defend myself they were just looking at my background,” she said.
Herrera is among thousands of California residents who authorities have charged with gang enhancements – additional prison time or release conditions tacked on to their sentences because of alleged gang ties. Gang enhancements are just one of dozens of types of sentencing enhancements at prosecutors’ disposal, others include those for weapons possession or prior convictions. They are particularly common in California, where almost 70% of the state’s prison population in 2019 had at least one enhancement. As of August 2019, more than 90% of adults with a gang enhancement in a state prison are either black or Latino, California department of corrections and rehabilitation (CDCR) data indicates.
Many prosecutors argue that gang enhancements, which they say are used to reflect the severity of gang-related crimes, can deter people from participating in these groups, and can give communities time to heal by taking dangerous people off the streets for as long as possible.
A growing chorus of critics, however, say enhancements and lengthy prison stays are costly, ineffective tactics to deter crime, and do little to address the circumstances that push people into criminality. They argue prosecutors rely on an outdated and overly broad interpretation of what constitutes a gang member, resulting in an approach that criminalizes culture and relationships among people in low-income black and Latino communities.
In San Francisco, Chesa Boudin, the newly elected district attorney, has vowed to do away with gang enhancements: “We need sophisticated policing to go after sophisticated criminal networks, but we need to be really careful when we use the legal definition of gang, because I think it’s overused and abused right now,” Boudin told the Guardian. “It feels like we’re criminalizing a culture – music videos and Instagram photos showing that you’re friends with someone who could be your neighbor, cousin or girlfriend’s brother, are viewed through a lens of criminality.”
Lucero Herrera said the gang charges didn’t help her get her life back on track.
“It didn’t help my lifestyle. Instead, it made it difficult for me to live and navigate in the world,” said Herrera, who is now 30 and works at the Young Women’s Freedom Center in San Francisco, an organization that provides support for women and girls who are affected by the criminal justice system.
Gang enhancements first appeared during the tough on crime era of the 1980s and 90s, when Americans were fearful of young, mostly black and Latino people deemed “superpredators” and were concerned that the street-level violence that came out of the crack-cocaine trade would reach suburban and affluent communities. These days, terms like “superpredator” are widely considered racist and outdated. Yet some of the law enforcement tools that came from this era, including gang enhancements, are still widely used within the criminal justice system.
There are various versions of gang enhancements at both the federal and state level. In California, 11,484 inmates in the state’s adult prison system, or about 6%, had a gang enhancement in August 2019, according to data from the California department of corrections and rehabilitation. Of them, 10,535 – 92% – are either black or Latino. And while California’s prison population has declined since the US supreme court ordered the state to reduce its prison population in 2011 from 163,000 to around 125,000, the number of prisoners with a gang enhancement in the system rose almost 40% in the same period.
The racial discrepancies, experts and advocates say, are partly due to the way California identifies gangs and gang members.
Gang enhancements first appeared in the 1988 Street Terrorism Enforcement and Prevention (Step) Act, when the crack-cocaine trade and underground drug market fueled street-level violence over turf among gangs throughout California. The violence took the form of drive-by shootings, and deadly fights between feuding groups.
“It was on and poppin’,” said Douglass Fort, a Bay Area gang expert who testifies in criminal cases. “It was young men with a bunch of money and egos, with 13-year-olds making 5-10k a month.” Communities were killing each other with guns and crack, Fort said of the climate during the early 80s. “Legislators thought these communities were crazy and when it came to writing legislation, it was lockup instead of rehab.”
Prosecutors still follow the Step Act definition of a “gang” – an “organization, association, or group of three or more persons” who commit crimes as a collective. They can charge any defendant whose alleged crime is deemed to bolster the reputation of or bring money into the group with a gang enhancement, which can add between one to 10 years on to a sentence.
But the dynamics of gangs and gang violence have changed significantly over the years. Today, there are large ethnically based gangs, such as the Aryan Brotherhood, the Nuestra Familia, and their subsets, the Norteños and Sureños, active in the Bay Area’s streets, prisons and jails, law enforcement officials and gang experts say. These groups are still involved in the underground drug trade. But now, the once thriving underground crack, cocaine and marijuana trade is being replaced by the more lucrative opioid and methamphetamine sales.
The large, predominantly black gangs that are active in southern California, such as the Crips and Bloods, don’t have a significant presence in the Bay Area, according to law enforcement. Instead, black groups in the region are often smaller, centered around specific locations, and don’t have a clear power structure or origin – which is why they are classified as non-traditional gangs. Rapid gentrification in the region has changed the activities of these non-traditional groups, said the Contra Costa deputy district attorney, Jason Peck, with the region’s high housing costs causing them to splinter. This phenomenon is considered to be the main driver behind the almost 200 shootings that have happened on Bay Area freeways since 2015.
The reasons Bay Area residents join traditional and non-traditional gangs vary based on the individual and community in which they grow up. Some are born into heavily gang-involved families and are raised to be proud of being a member. Some are from neighborhoods where not being a part of a street gang can be more dangerous than being in one. Others, especially young people who are in smaller non-traditional gangs, come together for a variety of reasons including growing up in the same community and bonding over shared trauma.
“Most gang members operate from an area of being hurt,” said David Monroe who works with at-risk youth in San Francisco and Stockton. Monroe is also a Norteño, the subset of the Nuestra Familia prison gang that is most present in northern California, and spent 19 years in prison for murdering a rival gang member when he was 15.
“It’s easy to understand how a kid who grows up in that environment can go down that road,” Monroe continued. “Those gang members are like your new family, and they protect you, they look out for you, they do all the things your family should be doing.”
To establish gang ties, prosecutors today mainly look at social media photos and prior contact with police. In some cases rap music videos and lyrics that show proximity to people identified as gang members are also used to establish membership or affiliation. Some law enforcement agencies keep track of suspected gang members in the CalGang database, which underwent an overhaul after a 2016 state audit found that the database contained “questionable information that may violate individuals’ privacy rights”. The auditor found that some law enforcement agencies “were unable to demonstrate that many of the groups they entered into CalGang met the criteria necessary for identification as gangs”. The database is now managed by California’s department of justice.
‘It doesn’t address the root causes’
Prosecutors argue gang enhancements are still an effective way to help keep the public safe, by recognizing the severity of gang-related crime and the risk it poses to the community at large. Prosecutors consider them a way to ensure that people who commit violent crimes on behalf of a gang are incarcerated for as long as possible, said Yvette McDowell, a former assistant city prosecutor in Pasadena, California.
“Prosecutors are trying to either help the victim be made whole, or get justice for society as a whole,” McDowell said. “They are going to use whatever tool is at their disposal to bolster their position to have things work out in their favor.”
Some cities have also placed restraining orders on gangs that make various actions, such as hanging out in certain areas, illegal for some or all of its members. These court orders are known as a gang injunctions and cities throughout California have used them since the 1990s.
“It could have been whistling when the police are coming or riding a bicycle in a particular area,” said McDowell, who helped Pasadena get an injunction against a gang in the late 90s. “There’s nothing criminal about riding a bike, but if you are identified on the injunction list, you simply being over there gave [police] probable cause to stop and search you.”
Injunctions have been used in San Francisco since 2006. The city attorney, Dennis Herrera, says the injunctions on gangs in four neighborhoods have contributed to the city’s historically low rate of gun violence, were tactfully implemented and only used on people with a well-documented criminal history. But community organizers say this decrease in violent crime has come at the expense of black and Latino residents whose communities were targeted by police.
Groups like the American Civil Liberties Union (ACLU) argue the injunctions, much like gang enhancements, do not address the issues at the root of crime and take up public resources that could be spent on efforts like violence prevention programs.
“The gang injunctions were almost these 21st-century Black Codes,” said Jose Bernal, a San Francisco native and organizer with the San Francisco No Injunctions Coalition, comparing the court orders to a set of laws placed on formerly enslaved black people after slavery was abolished.
“Sending police to these neighborhoods is a reactionary thing,” Bernal added. “It’s natural for most folks [to] feel safer because there’s a police officer present, but that doesn’t address the root causes.”
Lucero Herrera recalls feeling singled out by police whether she was alone or with a group of friends hanging out. She learned of her brother’s reputation when she was stopped by police around the age of 12. She recalls gang taskforce officers calling her “Lil’ Lazy”, a version of her brother’s street name. These kinds of police encounters would even happen at places like the local community center, she remembered.
“It made me feel like I wasn’t a human,” she said. “If we were just sitting on the stairs police thought we were doing something wrong instead of just enjoying our youth.”
Herrera was often angry growing up. “The police think I’m already gonna be this way, so why not?” she recalls thinking.
Herrera stabbed a man in a large street fight when she was 15. She spent a year and a half in juvenile detention, and when she was about to be released she asked to stay locked up, worried she wouldn’t be able to stay out of trouble. She was released anyway.
“I just wish that probation, and the case manager would have listened to me when I asked to be in an out-patient program.”
She lasted about six days, before the fight that landed her in county jail. She accepts accountability, she said, but says that her prison stay kept her away from her mother, who was still struggling with addiction and was in need of Herrera’s help and support.
Herrera’s brother was arrested and charged with a gang enhancement in 2008, while she was serving her sentence in San Francisco county jail. He was deported to El Salvador after serving his sentence. Her own incarceration coupled with her brother’s arrest and deportation was a serious blow, she said.
“It broke my family,” Herrera said.
Herrera’s brother was found murdered in El Salvador in 2018, and in August of this year, police found her mother’s decomposing body in Sonoma county. She had been missing since May 2018.
“That’s another reason my mom went missing. All that trauma.”
The push for reform
There is a growing movement of community organizers and attorneys who point at cases like Herrera’s to argue that the current approach is archaic.
“We’ve had enough time since the tough-on-crime era. We have data to look back on to see the results of the policies,” said Derrick Morgan, a policy associate with the Ella Baker Center for Human Rights.
“Giving people more time does not work to reduce crime, we just burdened the state’s budget with really tough policies.”
Boudin argued during his campaign for district attorney that the use of social media and rap music videos can criminalize culture, because family members and neighbors can be caught up in the dragnet of gang prosecution.
Defendants committing serious crimes like murder and robbery already face harsh punishment, he added, leaving enhancements to mostly serve as leverage for prosecutors and a way to introduce evidence that would otherwise be irrelevant.
“To use gang charges as a way to introduce evidence at trial is problematic, racially charged, and it makes us unsafe by undermining trust in the community,” Boudin said.
“If public safety requires a life sentence, that’s doable without the gang charge,” he continued. “I want to have the resources we spend actually make us safer and to make sure that we’re reducing racial disparities, not increasing them.”
There is also a financial argument for reform. California spends about $80,000 a year on each inmate in the state’s prison system and this cost is substantially higher for juveniles. Violence reduction groups like the Giffords Law Center point to community-based mentorship, strengthening police-community relations and investing in alternatives to incarceration for young people as often more effective in stopping crime and violence than incarceration.
And there is growing awareness of the policy’s ripple effects on defendants and their communities.
“Families are being torn apart consistently,’ said Amber-Rose Howard of Californians United for a Responsible Budget, a coalition of not-for-profit organizations that work to reduce the state’s prison and jail population. “They are trying to support [the incarcerated person] and stay connected, and figure out how to survive without the extra help in their family.
“They also destabilize [incarcerated people], and their ability to function in society,” she added.
Herrera recalls having to carry around the card with her status as a known gang member made her feel “like a sex offender”. Since she was registered as a gang member, police could stop and search her whenever they wanted.
“I felt very embarrassed,” she said. “It was uncomfortable when I was in a big group of people, and I had to give the police a blue card.
“People wouldn’t kick it with me, and I couldn’t be myself because I was getting stopped and fucked with.”
Gang enhancements also affect the way people navigate behind bars, and can affect everything from where someone is housed to their chances in front of the parole board.
John Vasquez, who served 25 years in prison for shooting a member of a rival gang at a party when he was 16, received 12 extra years to his 15 years to life sentence for using a gun and being a gang member. He also spent three years in a smaller, more controlled housing unit that “didn’t have bars, just walls”.
“Having that gang label on you in the prison system means more lockdown time, and when I was going to my parole board hearings, the biggest hurdle was the gang enhancements, it seemed bigger than the murder itself,” Vasquez said.
Revamping the way that California hands down gang enhancements is a slow-moving process. Organizers and public defenders say that is partly because gang members are painted as menaces to society in and outside of court, making it harder to gain the public support necessary to reform gang prosecution.
Since gang members are still low on the statewide criminal justice policy agenda, organizers are focusing their reform efforts on local policies in DA offices and police departments.
“We can start at home. That’s a policy decision that any district attorney can make, they can just choose,” Bernal said of limiting and eliminating gang enhancements. “The money it takes to lock someone up could be better used in the community.”
John Vasquez received extra time for being associated with a gang when he committed a crime as a teenager.
In San Francisco, the use of gang enhancements may soon come to an end after Boudin unexpectedly beat Suzy Loftus, a progressive prosecutor who was appointed the interim district attorney in October. Loftus will remain in the office until early January. During the DA race, Boudin was the only candidate to call for a complete end to gang enhancements in San Francisco. He was also vehemently opposed by local law enforcement associations who said his progressive policies would lead to an uptick in crime. However, if Boudin disallows prosecutors from using gang enhancements, there will undoubtedly be backlash from within and outside the office.
John Vasquez says he is disheartened by both the violent actions of gang members as well as the use of gang enhancements. “I get pissed off by the gang members doing their thing, and I still get pissed off at these gang enhancements being used on youngsters and a lot of minorities.”
He also knows firsthand how, without intervention, the need for love and acceptance can turn into a potentially dangerous allegiance. “That gang mentality is very dangerous, it was my whole identity, everything. I was willing to kill for my gang to represent it, as crazy as that sounds today,” Vasquez says.
After 25 years in prison, Vasquez works for Communities United for Restorative Youth Justice (Curyj) where he helps families navigate gang prosecution and other parts of the court systems.
“We lose one of our community members to either gang violence or to a long prison sentence. These are both traumatic for our communities.”