Lawmakers Mull Tougher Gang Law

Republican lawmakers who are determined to take a bite out of crime dusted off the mandatory minimum principles when they introduced Senate Bill 44.

Senate Bill 44, introduced by state Sen. Bo Hatchett, R-Cornelia, also mandates minimum sentences for gang offenses currently on the books in Georgia. It would allow prosecutors and judges to consider lower sentences only in some situations, including where a defendant renders “substantial assistance” in identifying, arresting, or convicting other gang members. “There is no place for gangs in Georgia, and passage of this vital legislation is a top priority,” Hatchett said in a statement. “Enhancing gang sentencing across the board will ensure tough prison sentences for more gang offenders while offering a strong incentive for those accused of gang activity to cooperate with prosecutors.”

“This bill is one piece of the overall approach to reaffirm that Georgia will not tolerate gang activity or recruitment,” echoed Republican Lt. Governor Burt Jones. “Senate Bill 44 will enact powerful new tools to combat the violent street gangs operating across our state. Governor Kemp’s plan to target gang recruitment of minors will cut off the pipeline of young people being drawn into gangs.”

Criminal Sentencing

Mandatory minimums aren’t new. Usually, mandatory minimums target moral vices, like drug abuse. In fact, mandatory minimum drug sentences, which were passed in the late 1980s, created considerable controversy in this area. More on that below.

Essentially, lawmakers pass mandatory minimums because they feel some crimes are so heinous, these offenders cannot re-integrate into society before they receive harsh punishments. These lawmakers have obviously never been on intensive probation before.

In Cobb County and nearby jurisdictions, intensive probation usually means stricter conditions, like more check-ins and additional hoops to jump through, like classes to complete. If prosecutors offer intense probation, a Marietta criminal defense lawyer must have an honest conversation with a client about whether incarceration is better. That’s especially true in a misdemeanor.

Sometimes, five or six weeks in jail is preferable to five or six months on probation. That’s especially true if the defendant has a brain injury or other condition that makes it difficult to make multiple meetings on time. Moreover, a Marietta criminal defense lawyer can usually arrange for an alternative to “straight time,” like work release or weekends.

Weekend plans are sometimes quite attractive. Generally, the defendant checks into jail on Friday night, checks out on Sunday night, and receives three days of jail credit. Moreover, if the jail is crowded, and it usually is, the sheriff might offer two-for-one or even three-for-one time credit. That’s certainly not an ideal outcome, but it could be better than extended probation.

Back to mandatory minimums. The 1986 cocaine overdose of basketball phenom Len Bias shocked many people. At that time, most people believed that doing a few lines of cocaine on the weekends was like drinking a few six packs on the weekend. These habits weren’t healthy, but they weren’t unsafe either.

Then, at an NBA draft party, Bias did one line of cocaine, laid down on the bed, and died. 1986 was an election year. Since lawmakers felt intense pressure to “do something” about drug abuse, they quickly approved the Anti-Drug Abuse Act.

The mandatory minimum sentences treated cocaine and crack much differently. Five grams of crack and 500 grams of cocaine had the same mandatory minimum sentence. The myth that crack is more dangerous than cocaine has largely been debunked.

Gang Violence in Georgia

But, we’re getting ahead of ourselves. Courts must determine that defendants are guilty before they sentence them. Usually, gang crimes in Georgia involve gang membership and gang activities.

Gang membership laws usually apply to soliciting, recruiting, threatening, or retaliating against gang members. Soliciting could be something like hanging around together on a street corner. Recruiting typically means using some combination of promises and threats to entice people to join gangs. Higher-ups usually threaten or retaliate against members when these members step out of line.

These offenses are not regulatory offenses, like a traffic ticket or a DUI. Therefore, prosecutors must establish mens rea (criminal intent) and actus rea (criminal act).

Usually, prosecutors use illegal conduct to prove illegal intent. However, it’s not illegal to stand on a street corner, at least in most cases. Additionally, it’s not illegal to send coded text messages, once again at least in most cases.

On a related note, nonviolent gang offenses often involve search and seizure issues. The aforementioned text messages are a good example. Frequently, police officers scroll through text message logs and red flag communications which could be associated with gang activity.

These searches violate the Fourth Amendment, unless officers have valid search warrants or an exception, usually owner consent, applies. Individuals have a legitimate privacy interest in everything past the home screens on their cell phones.

Actus rea could be an issue in court as well. Usually, the state’s evidence in these matters usually includes eyewitness testimony or informer testimony.

Human memory doesn’t degrade gradually over time. Instead, most people forget 80 percent of what they see and hear in less than seventy-two hours. Therefore, by the time a case goes to trial, eyewitnesses normally have no independent recollection of the crime. A Marietta criminal defense lawyer uses this natural memory loss to exclude the witness’ testimony or at least undermine the witness’ credibility.

S.B. 44 encourages gang defendants to give law enforcement investigators “ substantial assistance in the identification, arrest, or conviction of any of  his or her accomplices, accessories, coconspirators, leaders, or principals.” Many people will say pretty much anything to avoid serious criminal charges. In court, it doesn’t matter if the information they provide is correct. The process is all that counts, and in this area, the process is tainted.

Expect more, and more aggressive, street gang criminal prosecutions in the near future. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.