Sunday, November 5, 2017

On Folks and Definitions


It is February 2005 and I’m in Jackson, Georgia at a hotel room close to the state prison.  I’m prepping with Brian Kammer and pro bono private attorney David Harth to testify in the Marion Wilson case.  I’m consulting because the defendant is accused of being in the Folks gang and the "gang" label was used to get the death penalty for Marion and his co-defendant, Robert Butts. 

I had never testified in person in a death penalty case before and I’m a bit nervous. The stakes are pretty high. I am scheduled to appear the next day at a habeas hearing located in a special courtroom in the prison right next to the execution cell on death row. The lawyers are arguing Wilson had received ineffective counsel and should get a new trial.  Among other issues, Kammer and Harth reasoned the original trial attorney failed to call a gang expert to question countless stereotypes and prejudicial statements about gangs.  My job was to provide expert testimony that, had I been called to testify at the original trial, at least one juror would not have voted for the death penalty. Harth and Kammer went over the questions they would ask and the questions they expected from the state. We rehearsed several hours until I got it right. These are two top notch attorneys.

Later that night after my mock testimony I read and re-read the transcripts of the original trial.  I was dismayed by the many ludicrous and unchallenged statements by prosecution witnesses.  We had subpoenaed a manual of the Milidgeville police gang squad that, among other amazing claims,  instructed officers that gang members "all dressed alike" and "most gang members died before they were twenty one."   Ricky Horn, the Milledgeville  PD gang "expert" and Baldwin County Sheriff Howard Sils talked about gangs in language right out of the manual with little apparent understanding of the lives of poor black men.  There were pages of testimony denigrating Mr. Wilson but I suddenly stopped when I realized I had the names mixed up. I was reading statements by “Westin” believing he was the prosecutor. No! The prosecutor was Fred Bright and Westin was the “defense” attorney.  I could not tell the difference between them from the transcript.  They both talked in crude,  denigrating language about Mr.Wilson. It appeared they were working together for a conviction and death penalty.  It was worse than "ineffective counsel."

But these sensational stereotypes were activated because the defendant was a member of a gang, the legal equivalent of a terrorist. In fact the name of the statue Wilson was charged under was  The Georgia Street Gang Terrorist Prevention Act. It defines a gang in standard terms.
Criminal street gang "means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section.

Back in the 1960s Walter Miller and Malcolm Klein were the first criminologists to give a theoretical foundation to such soon-to-be created statutes. They discarded the classical  definition of gangs that described the process of adolescent gang formation and replaced it with one that highlighted criminality.  Mainstream criminologists believe their definitions are neutral generalizations of an empirical reality of gangs. This is what gangs really “are” they say.

But another way of approaching definitions is to consult social psychology and the literature on categorization.  This approach tells us definitions are constructs of the mind, not scientific generalizations of reality. I demonstrated in A World of Gangs that gangs are of many types and behaviors, and are constantly in flux.  To define something is to freeze it as one thing with no room for change. Defining is similar to framing.  Entman states:

To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation.

Mainstream criminologists have lent support to punitive policies by selecting out and promoting criminality as a defining characteristic of gangs.  Following Entman, they have defined the problem of gangs as criminality not youthful rebellion, implied crimes were not individual acts but caused by a criminal organization,  and this moral condemnation of criminal gang members laid the basis for harsh, enhanced sentences.  A definition, like a frame, is a choice by rule makers, and the foundation for laws like Georgia's were laid by criminologists.  Let's leave to one side that definitions of gangs like Georgia's can also describe most police districts. What characteristic of police do you consider most salient?

Frames or definitions are not scientific generalizations of a phenomena but a category that allows us to treat everyone the same.  When a "human kind” is defined,  Berreby says, we have a guide for our actions toward them.  Once crime was put into the definition and sanctified by law, the label "gang" becomes a code to a court that this kid is evil.  It’s like a jig saw puzzle  we see only a gold chain, dark skin, a gang tattoo and we can fill in the rest of the puzzle and conclude this guy is a violent criminal.  The code "gang member" is a map that cues familiar stereotypes in our brains, what Winter calls "dangerous frames."  We transform every piece of evidence in such cases and make it gang-related.

How does this work in court?  In the Wilson case, my testimony was unsettling to the state, especially as I pointed out there was no evidence the crime was gang related.   Sheriff Sils was becoming red faced and visibly angry sitting in a row a few feet from the witness stand.  We could hear his muttering and eagerness to testify to counter my arguments.  As David Harth began his re-direct examination Sils was searching for a way to demonstrate the shooting was indeed all about gangs. Harth asked him when he had first thought the shooting had something to do with gangs? 

Sills: Well, there was one thing I always thought it could have been.

Harth: You must have thought of that since your deposition.

Sills: It was the fact they used F shot.  I never heard of F shot before this crime.  It’s a very large shot, bigger than normal bird shot. The gun had been stolen out of a car, but that ammo hadn’t been stolen with it. I always thought to myself that that F stood for FOLKS.  It is not widely sold.  Other grades are numbers, except BB shot. 


There was not any outright laughter in the court since the judge would have held us in contempt. Brian Kammer and I looked at one another and pressed our lips suppressing incredulous guffaws bubbling up from within. Just sit back for a moment and consider F...olks and F shot. Of course they are related and what else could F shot be but a sign of the Folks gang? What about F...armers or F....renchmen or F...igments of the imagination?

To reiterate: categories are not scientific generalizations of reality but processes of the mind. We are picking out some characteristics as salient and others as not important. For criminologists, prosecutors, journalists, and executioners crime is the most salient characteristic of a gang. For some of us, though,  the most important aspect of a gang is alienation and rebellion, and criminal acts should be punished for the harm they do, not because they were committed by a gang member.

Gangs are a "them" category that cues to "us" — in a court to judges and juries — that this guy is bad news and likely to be guilty. If the evidence isn't there a prosecutors can always search for the equivalent of F shot.

Berreby, David. 2005. Us and Them: The Science of identity. Chicago: University of Chicago.
Entman, Robert A. 1993. "Framing: Toward Clarification of a Fractured Paradigm." Journal of Communications 43(4):51-58.
Winter, Nicolas J. G. 2008. Dangerous Frames: How Ideas about Race and Gender Shape Public Opinion. Chicago: University of Chicago Press.