Trump, Deportations, and “Gang Members”

Latino youth beware!  You may be a gang member and not even know it!  And no, you might not be able to dispute that label if it is made by ICE. Welcome to America, or rather….. Farewell.

President Trump’s Executive Order on Immigration and his Implementation Memo dated 2/20/17 are aimed to “take the shackles off” of the nation’s immigration enforcers. According to Sean Spicer, the EO makes it clear that “the No. 1 priority is that people who pose a threat to our country are immediately dealt with” (New York Times  2/21/17). Among others, this means gangs, or at least people ICE decides are gang members. 

And that’s the rub. Bureaucratically law enforcement has a process to officially label a youth a “gang member.” There are checklists like this one:

However the judgements are highly subjective. In the recent highly publicized case of Ramirez Medina, ICE agents apparently mis-identified a tattoo as “gang related” and  although Ramirez was a DACA protected Dreamer, held him as a gang member and began deportation proceedings.

Law enforcement agencies have a long history of stereotyping and mis-labeling minority youth as gang members. In  Los Angeles, California Supreme Court Justice Chin questioned official gang identifiers, pointing out that “the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or 'Los Angeles Raiders' garments.” In Denver police created a data base that classified an astounding two out of every three black youth as gang members. 

As one law review article put it, police officers and ICE agents already “exercise virtually unchecked discretion” when it come to gangs.  This means racial stereotypes can be given free reign.  A deportation case I consulted in demonstrates how dangerous stereotypes plus  ICE's “unchecked discretion” can be.  For obvious reasons I changed the name of my client and masked some of the circumstances.

Dante Menzies was a 15 year old high school student. He was a rebel, and he and two friends formed a group called “Cholo or Die.”  They spray painted it on walls and had hats made with “COD” letters. One of Dante’s friends got into a tussle with a teacher.  Dante intervened and punches were thrown. Dante was arrested, and then the astounding happened.

The local police claimed out of the blue that Dante was a “Sureño,” and COD, Dante's gang of three,  was a chapter of MS-13.  He was turned over to Homeland Security and subject to deportation. His lawyer called me and I interviewed Dante via Skype, reviewed the documents, and talked to local police officials. My question was simple: how did the officer determine Dante was a MS-13 member? 

The checklist above is from Dante’s case. Here is the evidence: the graffiti on buildings was Dante and his two friends writing “COD” on the school bathroom walls.  Dante apparently was determined to be MS-13 because he wore the color blue..... and get this, the only blue he had on were his blue jeans. The arrest for a violent crime was the juvenile adjudication of delinquency in the scuffle which resulted in a couple of months in detention. 

The police department refused to explain what “correspondence" named Dante a gang member.   My guess is that the local Gang Investigators Association sent some background information or this referred to memos within the file between local officers.  Police departments or ICE do not have to disclose “gang intelligence” information as with other evidence subject to discovery. In other words, like in this case, ICE can allege gang membership as a basis to deport and never reveal how they drew that conclusion.

I have no way to know if 15 year old Dante was actually a secret MS-13 member.  But the evidence the police presented led me to conclude that Dante’s “MS-13” membership was most likely made up by the officer so deportation proceedings could begin. It was a false generalization that was necessary to justify punishing Dante, as in "Aren’t most of those Mexican kids gang members anyway?"  Why not just make up the evidence — who will know? 

Well the attorney called their bluff and I made an aggressive case that there was no evidence to even assume Dante was a MS-13 member.  He was spared deportation but not every youthful immigrant will enjoy such advantages.

I think Sean Spicer got it right. Trump’s order is meant to “take the shackles off” ICE agents, to give them even greater discretion to act on their hunches and biases in order get “them” out of the country. The facts be damned.

Gang members, along with Muslims, are the quintessential “them” to the virtuous “us” of the all-white alt-right.  Being in a gang is not illegal.....yet.  But even the allegation of gang membership puts Latino youth at risk of deportation.  This over-broad net of ICE predates Trump and former President Obama can't escape culpability. The fight against demonization in all its forms is an on-going struggle for us all.

Hufstader, Rebecca A. 2015. "Immigration reliance on gang databases: Unchecked discretion and undesirable consequences." New York University Law Review 90:671-709.

Leyton, Stacey. 2003. "The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases." in Crime Control 

            and Social Justice: The Delicate Balance., edited by Darnell Felix  Hawkins, Samuel L. Myers, Randolph N. Stone,. Westport, CN: Greenwood Publishing Group.

Lynching, Gangs, and the Courts

…the prosecutor’s remarks were designed to humanize the victim, demonize the defendant and his alibi witnesses, and remind jurors of the brutality of the crime. His intentions were to give the trial one last heavy dose of emotionalism. 

This quote could describe prosecutors' rhetoric in every gang-related legal case I’ve worked.  Emotional appeals to racial stereotypes and the routine demonization of gang members is “expected behavior” for states attorneys. As a manual on gang prosecution argues,  when the defense objects to gang evidence as "prejudicial" prosecutors should respond:  “Of course it is. That’s the point! “   Offering research to combat stereotypes is why I consult on gang related legal cases. 

The trial the first quote comes from, however, was from 110 years ago in Chattanooga, Tennessee. In his final appeal to the all-white male jury,  prosecutor Matt Whitaker raised his voice and thundered:

Send that black brute to the gallows and prove to the world that in Chattanooga and Hamilton County the laws of the country does not countenance such terrible crimes, has not ceased to mete out the proper punishment for such horrible outrages. 

Contempt of Court  tells the story of Ed Johnson, accused of the rape of a white woman. Likely innocent with multiple alibi witnesses,  Johnson was hurriedly tried and convicted in an emotionally charged city.  Attempts to change venue were denied because the judge and sheriff stated the mob would lynch him before letting him leave Chattanooga. During final arguments, one of the jurors tried to jump out of the jury box and threatened to tear out the defendant’s heart.

Two black attorneys made an unprecedented legal journey to the US Supreme Court in 1906.  When Justice John Marshall Harlan granted a stay of execution, an angry white mob of hundreds of locals, aided and abetted by Sheriff Joseph Shipp, broke Johnson out of the jail, lynched him and filled his still-shaking body with bullets.

The story of the book is that this event caused the Supreme Court for the first time to apply the 14th amendment to state criminal courts, with a particular concern with the lynchings that were terrorizing black people in the south.  The Supremes were split about whether to interfere in criminal matters traditionally left to the states. They had decided less than ten years previously in Plessy vs Ferguson that “separate was equal” and had given free reign to Jim Crow.  Justice  Harlan, who dissented in Plessy, argued not only that ignoring the Supreme Court’s habeas order was a direct insult to the Court, but Johnson’s unfair trial and subsequent lynching violated the basic rights of black people to equal protection under the law. 

Harlan’s argument was buttressed when a deliberating court heard about of another lynching in Oxford Mississippi. That mob was brazenly led by a US Senator, W.V. Sullivan,  who boasted to the press:  

I directed every movement of the mob. I wanted him lynched. I saw his body dangling from a tree this morning and I am glad of it. I aroused the mob and directed them to storm to jail.

This was too much and the court unanimously found Sheriff Shipp and others in contempt bringing them to trial. While Shipp and the others got off with light sentences the Fourteenth Amendment would from then on be applied to state criminal proceedings and actions. Federal courts would be used to bring civil rights suits against local authorities and to challenge egregious violations of justice in local courts.

The last two lynchings in the US took place in 1944.  That is progress. But this does not mean that black people receive equal protection of the laws. Like Ed Johnson, black males — in my work this means gang members — are still considered guilty unless proven innocent by extraordinary efforts of defense attorneys.

So while we celebrate progress, we must note mass incarceration is a Mark of Cain on our nation, persuasive evidence of the permanent nature of racism. Remarks by prosecutors still seethe of racial resentment and routinely spout out “alternative facts.” For example in one case in Georgia where I consulted, the prosecutor, Fred Bright, claimed that a gang related homicide was an example of a “the carnage” gangs had brought to Milledgeville, Georgia in recent years. His theatrics led to death sentences for the two defendants, Robert Butts and Marion Wilson.

I was retained by counsel for both defendants in appeals. The habeas hearings where I testified had been made possible by US vs. Shipp a century before.  On the stand I pointed out that with the advent of gangs in the late 1980s, the homicide rate in Milledgeville had actually declined, not spiked. Gangs in that city, the former capitol of the Confederacy, were in neighborhoods that were far apart and conflict between them was held to a minimum. 

We don’t know if Ed Johnson was innocent of rape, though after Contempt of Court  was published his conviction was set aside 94 years later.  Butts and Wilson, however, likely participated in the homicide on Donovan Parks.  Does their guilt make the unbridled demonizing rhetoric of prosecutors acceptable?

Gang neighborhoods in Milledgeville
 were not adjacent to one another

Bright grandstanded in his opening statement that the murder was a gang related crime. Despite offering not a shred of evidence of gang involvement he kept hammering his “alternative facts” into the heads and hearts of the all-white jury, stoking their fears.  He knew gang evidence is prejudicial and he kept riding that bucking bronco in rodeo-like proceedings.  In closing he evoked images of Muslims and terrorism as well as continuing his “Satanic” version of gang rituals of murder.  The appointed defense attorneys offered few objections at the original trial — they were indeed “friends of the court.” 

Like in the Johnson case, the prosecutor got his death penalty. Unlike Chattanooga in 1906, the convicted defendants were not lynched.  Times have changed and fortunately America is still not “great again” as in the good old days of vigilante justice. But despite years of hard work by the Georgia Resource Center and two high power private law firms working pro bono, both Butts and Wilson remain on death row.  

I think the use of “alternative facts,” demonizing defendants, and evoking strong emotions to cloud judgement violates the spirit of what we mean by justice.   A cynic might call what happened to the two Folks gang members a “legal lynching.”

Curriden Mark and Leroy Phillips, Jr. 2001. Contempt of Court: The turn-of-the-century Lynching That Launched a Hundred Years of Federalism. New York City: Anchor Books.

Jackson, Alan. 2004. "Prosecuting gang cases: What local prosecutors need to know." Alexandria, VA: American Prosecutors Research Institute.