May 7, 2012 Members of the Metropolitan King County Council 516 Third Ave., Rm. 1200 Seattle, WA 98104 VIA ELECTRONIC MAIL Dear Councilmembers, I write on behalf of the American Civil Liberties Union of Washington (ACLU-WA) to express our concerns regarding two proposed gang suppression ordinances that are being discussed by the Law, Justice, Health and Human Services Committee on Tuesday, May 8—Proposed Ordinances No. 2012-0134 and 2012-0135. The ACLU-WA is a statewide, non-partisan, non-profit organization with over 20,000 members, dedicated to the preservation and defense of civil liberties, and for the last several years, we have been an active participant in statewide and local efforts to find real solutions to gang issues. We believe, and the available evidence demonstrates, that funding and supporting the work of community-based organizations that provide prevention and intervention programs is the best way—indeed, the only way that has proven successful—to keep youth out of gangs and get gang-related crime under control. What does not work is attempting to arrest our way out of the problem—yet that is precisely what POs 0134 and 0135 would have us do. PO 0135 violates due process rights, invites differential enforcement, and will not solve gang problems in King County. PO 0135 allows courts to order individuals to stay out of designated “gang emphasis areas. As the proposed ordinance is currently written, court orders can issue pretrial as a condition of release or as a part of a sentence after conviction. Violation of the order constitutes a new, separate crime. PO 0135 violates due process in several ways. It provides no direction or criteria as to the method of designating or selecting the “gang emphasis areas.” The County Council is not required to find that the “designated parcels” are the locations of gang crimes or other criminal activity. And there is no requirement that the individual subject to the order be connected to the “designated parcels” either by criminal conduct or otherwise. The proposed ordinance also fails to set out any procedure by which the court may determine that an individual should be subject to “gang emphasis area” order. The ordinance does not require the judge to find that the defendant meets the definition of a “gang member” or that his or her charged offense be a “criminal street gang-related offense.” Nor does the ordinance establish the burden of proof required for issuing the order. This lack of guidance is particularly problematic because the ordinance as


currently written allows a court to issue an order as a pretrial condition of release—at a point when no crime has been proven at all. Finally, there appears to be no provision to provide notice to the public of where these exclusion zones are located. Given the potential for infringement of civil liberties, the omission of basic due process protections from the proposed ordinance is troubling. In contrast to existing legislation on drug and prostitution areas, PO 0135 invites racial profiling in its enforcement. People who have been in gangs, studied, or worked around them know that it is very difficult to accurately identify gang members by clothing or other visual factors. They also know that gangs are mobile rather than confined to particular blocks or parcels, and can easily move elsewhere once banned from a particular area. There is no simple visual way to make the determination of who in an area is violating a gang zone—and it is all too often made on the basis of race, ethnicity, mode of dress, or other factors that have more to do with stereotyping than effective law enforcement. For example, racially biased enforcement of gang injunctions in Oakland has been documented, with local community members complaining of abuse and profiling. In considering this legislation, the King County Council should take a hard look at the available evidence —the vast weight of which has shown that, at best, gang injunctions of this kind have little to no impact on violent crime rates, and at worst, that they actively increase crime by bringing young people who are trying to reintegrate into society back into the criminal justice system, with all the unnecessary expense that entails. Rather than creating an expensive new crime for these young people to violate, those same resources should be allocated to keeping them out of gangs in the first place, while focusing law enforcement efforts on those who commit violent crimes. PO 0134 is unnecessary and infringes on due process. PO 0134 creates a new general crime of criminal gang intimidation, which under state statute applies only to school enrollees. But the state statute was limited to those in school with good reason— schoolchildren are a captive audience with an obligation to go to school, and shouldn’t be harassed while there to join or rejoin a gang. More broadly, we already have a state law that prohibits threats of bodily injury (RCW 9A.46.020) and don’t need to create a new crime. Additionally, the proposal is vague and likely would not have any impact on coerced recruiting into gangs since the ordinance does not require any proof that the person making the threat is actually a gang member or is attempting to force the victim to join a particular gang. POs 0134 and 0135 will take funds and focus away from the proven solution of prevention and intervention, which King County has already under-invested in. Both of these proposed ordinances take the view that we can arrest our way out of the gang problem—and take our focus away from what we already know works. Multiple studies have shown—and the federal government’s Office of Juvenile Justice and Delinquency Prevention agrees—that the most effective mechanisms for keeping young people out of gangs are proactive prevention and intervention programs, such as those that a number of under-funded organizations in King County are already providing. This investment will pay for itself in reduced criminal justice costs for gang-involved youth in the future, as well as in safer communities.

Unfortunately, King County’s current anti-gang effort, while commendable, invests its resources in exactly the opposite way from the recommendations of the OJJDP model— with the lion’s share going to suppression efforts such as more gang prosecutors, and a quarter or less of the funding going to critical prevention and intervention programs that could help address the root of the issue. POs 0134 and 0135 shift the balance further in the wrong direction, towards ineffective suppression measures. At the state level, a broad coalition of community-based organizations representing a diverse range of interests—many based in King County—have come together oppose gang injunction legislation that raises many of the same concerns as POs 0134 and 0135. It is unfortunate that none of those community-based organizations—many of whom are doing the real work of keeping communities safe on a shoestring budget—were invited to participate in the Law, Justice, Health and Human Services Committee’s discussion of this important issue. Had they been at the table, it is likely those organizations would continue to advocate for investments in prevention and intervention services—investments that help communities, families, and young people, and galvanize community resources to addressing the root causes of criminal street gangs, rather than temporary fixes that shuffle the violence around. We urge the King County Council to reject POs 0134 and 0135 and invest instead in prevention and intervention services. Sincerely, Shankar Narayan Legislative Director cc: Dow Constantine, King County Executive

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