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St. Thomas Law Review

First Page

620

Document Type

Article

Abstract

This article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is guaranteed by the Eighth Amendment. Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so when charges are less serious. When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain release. Thus, the imposition of high bail may be the only decision based on gang allegations affecting the majority of defendants. Third, the allegation of gang affiliation is often inaccurate and unrelated to the offense, yet a defendant alleged to have a gang affiliation will often be treated as an extremely violent and dangerous individual. The invocation of gang membership suggests senseless violence, danger to others, and can lead to misguided preventive detention in the form of excessive bail. While there is certainly a very real connection between gangs, delinquency, and violence, any non-law enforcement gang expert (and some law enforcement experts) would distinguish among levels of gang membership. Further, evidence suggests "gang databases" are so wildly overinclusive that many people in gang databases are not even members of a gang. The databases are simultaneously under-inclusive of non-minority gang members and women, and their use exacerbates the overrepresentation of males of color in the criminal justice system. The reliance on unsupported allegations of association with a gang in determining pre-trial bail conditions may, and often does, overshadow the presumption of innocence. To be sure, the imposition of bail that effectively leads to pre-trial detention is a long-established facet of the criminal justice system. The presumption of innocence and the right to remain free until proven guilty has often been honored more in the breach than in reality. Jails across the country are filled with defendants awaiting trial. A small number of defendants are remanded after specific findings that they pose such a great risk of flight or such a danger to the community that detention, even prior to conviction, is permitted. In these circumstances, the decision to remand without an opportunity to post bail and be released is governed by narrowly defined considerations. In the vast majority of cases, pre-trial detention is secured by bail. Money is the key that can unlock the jail door, but the amount of bail required to secure pre-trial freedom is set, more often than not, beyond the means of the indigent defendant. For those alleged to have gang affiliations, however, higher bail is more likely than for those with similar records, charges and community ties who are not alleged to be in gang databases. While there is substantial literature examining the terms and conditions of pre-trial release and bases for pre-trial bail decisions, the allegations of gang affiliation have not been subjected to such scrutiny. Because the decision to release or detain a defendant is often the most critical moment in the course of a criminal case, this paper fills that gap. This paper proposes that allegations of gang membership be excluded from the release determination in all but a very limited number of cases and that, when such allegations are permitted, procedural safeguards requiring prompt review of the factual basis for allegations of gang affiliation be adopted. Part II of this article examines the nature and scope of the impact of allegations of gang association. In Part III, the critical nature of the pre-trial release decision and the permissible considerations for release determinations are considered in light of the presumption of innocence and the Eighth Amendment's prohibition on excessive bail. Part IV examines the difficulty of defining gangs and identifying gang members, the problems associated with the development and maintenance of gang databases by law enforcement, and their use by prosecutors in making bail requests. Part V sets forth proposals to limit improper use of allegations of gang affiliation.

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