Rage at the machine: California’s gang suppression policies

Aaron Harvey was living outside Las Vegas in 2014 when California authorities swept in and arrested him for conspiracy in a series of gang murders that had occurred in his absence.

They knew Harvey wasn’t in California when the bullets flew. They knew his finger wasn’t on the trigger. But he was from a neighborhood with gangs, and was friendly with suspected gang members, and had social media posts of same. Thus, unbeknownst to him, Harvey was listed and tracked in the state’s CalGang database.

Under California law at the time — in this case, Penal Code Section 182.5 — being in the database was enough. The San Diego District Attorney charged Harvey, potentially locking him up for life.

How can that possibly be? As the new documentary “California Story” by David Kuhn explores (the movie screened at UC Irvine this month, with a bespectacled Harvey in attendance) a person could be charged with criminal street gang conspiracy if they “actively participated” in a gang and “benefitted” from the crime, even if they were not present.

Harvey’s alleged “benefit” from the carnage that occurred in his absence? Beefed up “street cred” in the criminal underworld, prosecutors argued.

‘Future gang member’

Outrage burned bright in the community room at UCI on Feb. 12, where many targets of California’s gang policies — some exquisitely tattooed and close to earning their doctorates — gathered for the screening and discussion. The sting of “gang documentation,” wrongful accusations, extra years behind bars layered atop sentences not for the crime, but for being branded gang members/”super-predators,” cut hot and deep, sparking demands for fairness, for equity, for change.

Isn’t there’s something wrong with kids being flagged as “future gang members” when they’re just 9, 10, 11 years old? With Grandma being pulled over and asked if she has gang tattoos? The film explores the humiliation, degradation and rage, which filmgoers said leads to more surveillance, more stops, more searches, more conflict, and the conviction that police are not there to protect and serve — at least, not to protect and serve them.

It argues that gangs are what happens when young men band together against what they perceive as a common enemy. Cops as sharks; streets as water. Toss in mediocre schools; a lack of jobs, skills and social supports; poverty; and a sprinkling of family turmoil, and the “future gang member” note in a kid’s elementary school file can become a self-fulfilling prophecy.

For too many, there’s not much besides gang life that provides a sense of belonging and purpose.

Even though it’s a 21st century database, CalGang might be just the latest version of the scarlet letter. Law enforcement can log your name, birth date, race, gender, address, height, weight, hair and eye color, “personal markings” (tattoos, scars), and other details into a statewide database, no arrest or conviction required. These days, you’ll be notified that you’re being added to CalGang, and you can object. But once in the database, the film argues, you’re marked. As was Aaron Harvey.

“It was easy for people to feel bad for Aaron Harvey,” Harvey said at the screening. Harvey came from a two parent household, had no gang tattoos, was well-spoken. His father was right beside him, fighting the injustice all the way.

“I was palatable to people. People heard about our case and they felt sorry for Aaron,” he said.

“But they’re not paying attention to the systemic issue happening to thousands of Black and brown folks.”

Yes, Harvey spent seven months in prison. Yes, the charge against him was tossed. Yes, he successfully sued San Diego and split a $1.5 million settlement with a rapper similarly accused. And yes, he graduated from UC Berkeley.

But most of the 14 people charged alongside him didn’t, or couldn’t, fight. Just two were convicted of felonies at trial. The rest were railroaded, some might say, taking plea deals to avoid worse fates, such as life in prison. Harvey’s brother Alonzo was one of them, accepting three years of probation to end the legal battle.

For some, the battle hasn’t ended. Harvey is working to change that: “It’s a duty for me,” he said. “For all of us.”

Reforms

On the up side, gang laws have changed in an attempt to avoid guilt by association, largely thanks to Assembly Bill 333.

The 2022 law tightens the definition of “criminal street gang.” Narrows what actions qualify as a “pattern of activity.” Requires evidence that crimes provide more than a “common reputational benefit” to the gang. Restricts gang enhancements in sentencing that often layer extra time atop what’s already due for a guilty verdict or plea.

In light of these changes — and to avoid expensive lawsuits that have plagued other jurisdictions — the Orange County District Attorney’s Office dissolved 13 active gang injunctions against 317 people last year. Those injunctions could snag people for “associating with known gang members and wearing known gang clothing” in specific areas claimed by criminal street gangs. That, critics charged, trampled myriad civil rights.

Some of those injunctions were almost 20 years old. They had targeted the Boys From The Hood in Anaheim; Santa Nita in Santa Ana; Varrio Viejo in San Juan Capistrano; Varrio Chico in San Clemente; Orange County Criminals in Orange; Orange Varrio Cypress in Orange; Hard Times in Garden Grove; Jeffrey Street in Anaheim; Family of Latin Kings in Anaheim; Fullerton Tokers Town in Fullerton; Crow Village in Stanton; East Side Anaheim in Anaheim; and Townsend in Santa Ana.

Unfair? Latino gangs were the only targets of those injunctions, even though Orange County was home to White supremacist gangs as well, the Peace & Justice Law Center noted in demand letters to the DA before the injunctions were lifted.

The film traces all of this back to slavery. Contain, repress, exploit, degrade; structurally, it argues, America needs an underclass. Consider: There has been a 40% reduction in California’s prison population between 2010 and 2024 (from about 165,000 people to about 94,000), but there has been just an 11% drop in what we pay for California Department of Corrections salaries (from an inflation-adjusted $6.5 billion to $5.8 billion).

“We’re still invested in the prison-industrial complex and making sure it has the highest chunk of our budget,” said Ryan Flaco Rising, a critical criminologist working on his doctorate at UCI. Rising founded West Coast Credible Messengers, which works with at-risk youth, runs re-entry programs for formerly incarcerated people, and hosted the movie screening.

‘Abuse … of power’

Civil rights lawsuits over gang policies — and the resulting judgments and settlements — have cost California governments tens of millions of dollars.

In 2009, the ACLU sued Orange County over an injunction targeting the Orange Varrio Cypress gang. The injunction forbade scores of suspected Varrio Cypress members from associating with one another, wearing gang clothing or being out after 10 p.m.

An “egregious abuse of government power” violating the young men’s constitutional right to a court hearing where they might argue they weren’t gang members, the ACLU successfully argued. The county wound up paying some $4 million in attorneys costs to the ACLU in 2015.

The next year, the city of Los Angeles approved a $30 million settlement to end a federal class-action suit alleging that the city’s gang injunction curfews violated the due process rights of nearly 6,000 people. The city was ordered to pay $1.75 million in attorneys’ costs as well.

San Diego’s practice of collecting DNA from minors suspected of gang activity — no arrest or conviction needed — led to another ACLU lawsuit and a new law forbidding the practice.

Even though some changes have been made, there’s still a long way to go, many at the screening agreed. Gang injunctions and sentencing enhancements remain available to prosecutors. And while CalGang has been dramatically scaled back — Orange County police agencies had 5,487 records in CalGang in 2019, and just 235 last year, according to data from the Attorney General — filmgoers argued the database remains a potent, and pernicious, tool.

“Labeling anyone under 18 as a gang member has to stop,” Rising said. “They can label anyone; it strips people of their rights and treats them as nonhuman subjects.”

The solution to social ills is not badges on chests and guns on hips, the film argues. The “war on drugs” and the “war on gangs” could be far more effectively addressed by serious investment at the front end — in radically better schools, intensive one-on-one mentoring, comprehensive leadership and job and training and recreation programs — rather than at the back end, after folks get in trouble with the law.

The back end is where our resources are overwhelmingly focused now. It’s worth noting that it costs about $45,000 a year to send one kid to UC Berkeley, including tuition, food, lodging et al, while it costs about $130,000 a year to incarcerate one prisoner.

How to shift the focus? Rising points to an interesting experiment out of Ecuador. In 2008, the government aimed to increase public safety — and legalized the country’s largest street gangs.

“The new Ecuadorian approach viewed crime control through the lens of social citizenship, institutional reform and economic development, with efforts to reach higher levels of social control based on policies of social inclusion,” said a research paper published in Critical Criminology in 2020. That meant more resources for youth programs, welfare, health and education.

In essence, a new social contract was written.

“The Ecuadorian approach was successful, producing the most sustained drop in homicide in the world … falling from a peak of 21 per 100,000 in 2008 to 5.6 in 2016, not least because it avoided the problems of coercive social control policies that lead to deviance amplification, i.e., the processes in which state and social agencies are mobilized to eradicate the perceived source of a social problem only to see the targeted behaviors increase,” the study said.

“Indeed, years of iron fist policies of gang policing had seen large increases in the prison population and violence across the region, exemplifying its failure to curtail the growth of gangs.”

Wouldn’t it be revolutionary to see something like that here? Long Beach and Los Angeles have worked to cleave youth development programs from the justice system, Rising said, but O.C. trails them.

The film calls on people to affect similar change by exercising the vote — “Our vote is our voice!” But some rejected even that. Reforms to California’s gang policies didn’t spring from genuine concern, one man argued. A “birthrate crash” means fewer kids in schools, and Black and Brown people are getting out of prison to fill a labor shortage. “You won’t catch me at voting booth on election day,” he said. “I don’t negotiate with terrorists.”

Several people took issue, believing that the universe can, indeed, be bent toward justice. When people see doctoral candidate Rising’s tattoos and ask him which gang he’s from, he laughs, conjures his G.P.A., and says, “The 4.0 gang.”