California Racial Justice Act Could Be a Check on Racist Gang Injunctions

Kaden Evans-Shaw, Grant Program Intern

Take a moment and think. What images come to your mind when you think of “gangs”? Reflect. Do you have negative, positive, or neutral associations? Do you feel happy, sad, angry, neutral?

People may not be inclined to care about gang members because of the rhetoric that exists around gangs in the United States. Gangs are commonly associated with organized crime and terror. However, young people typically join gangs to find community, not to commit violent crime. Often, people also join gangs because of the financial incentive that is necessary for survival. Typically, young men feel as though joining a gang is their only option for survival, and because they are usually teens or younger, they succumb to peer pressure easily. The concept of a gang has racial implication as well, due to historical discrimination of young Black and Brown men. When we think of white supremacist organizations that commit violent crime, they are usually called “groups,” a word with much less stigma surrounding it. Because of the negative and violent associations pushed by the media and government around gangs, the public fear of gang violence increased from the late 20th century to the early 21st century. In an attempt to curb gang violence and reduce fear surrounding gangs, local governments across the country have implemented gang injunctions.

What are Gang Injunctions?

Civil gang injunctions are a type of restraining order issued by courts in the United States that prohibit alleged gang members from participating in specified activities. Specified activities may include associating with certain people (this could include close family/household members), wearing certain colors, doing certain gestures or symbols with your hands, or exiting your property outside specified hours. Gang injunctions are civil court orders, which use a lower legal standard than that required by the criminal justice system and so, those served with gang injunctions are not automatically given an attorney like a defendant in a criminal case would be. As discussed in the previous section, by naming this kind of restraining order a “gang injunction,” it immediately excludes white supremacist hate “groups,” that often spread hateful ideologies, from being prosecuted.

What is their purpose?

The purpose of gang injunctions is to reduce gang violence. However, statistics prove that they are not productive in curbing gang violence. They have instead been proven to increase the tendency to commit crime again, and push crime into surrounding areas. Efforts that do help reduce gang violence encompass several strategies, all aimed at combating systemic injustice within communities. These strategies include funding social services, providing educational after-school opportunities for young people, conflict resolution training, and softening schools policies to reduce suspensions and expulsions.

How are they harmful?

When it comes to serving gang injunctions, police have broad discretion when labeling people gang members. This encourages racial profiling and increases racial disparities in communities. Gang injunctions criminalize membership in gangs rather than criminalizing individual acts, such as assault or theft. Those served with gang injunctions do not have an opportunity to challenge the injunction and do not have the right to legal counsel. Injunctions are often permanent and take a long process to reverse that many people do not have the time, money, or resources to do.

The concept of a gang has racial implication due to historical discrimination of young Black and Brown men.

What does this have to do with the Impact Fund?

One of the cases previously funded by the Impact Fund was People ex rel Reisig v. Broderick Boys. This case challenged a court order imposing a permanent gang injunction on an alleged street gang in the Broderick area of West Sacramento. The county district attorney served a permanent injunction against the Broderick Boys gang in 2007. Four of the men served with the injunction moved to set it aside. These men argued that it was void due to lack of proper notice. Only one man had been officially served with the injunction, and it was presumed that he would spread the word to the rest of his associates. However, the trial court decided that they lacked standing to challenge the injunction because the men did not admit to being members of the Broderick Boys. They appealed this case and the court of appeals sided with the decision of the trial court.

What might the future of challenging gang injunctions look like?

It is unfair that the men served with the gang injunction didn’t have the ability to defend themselves. It is also unfair that the conduct of this case is constitutional under California law. Gang injunction cases often play out in unofficial, complicated ways like this case. Above all else, gang injunctions are a tool used by the government to enforce racial hierarchies and police black and brown bodies. If only there was a way to challenge gang injunctions on the basis that they unfairly target based on race. Well, a newly proposed piece of legislation under consideration by the California legislature may make that possible: The California Racial Justice Act.

What is the California Racial Justice Act?

The California Racial Justice Act (CRJA) would work to reverse the 1987 SCOTUS decision in the case of McCleskey v. Kemp. This declared that although the death penalty disproportionally affects minorities, that statistic alone is not enough to overturn a death sentence. The CRJA, created by California assembly member Ash Karla, prohibits the state from seeking or obtaining a criminal conviction or from imposing a sentence based upon race, ethnicity, or national origin. Most significantly, the bill makes it possible for a person who was charged or convicted of a crime to challenge their circumstance by presenting evidence of racial bias of attorney or judge, racially discriminatory language during the trial, racial bias in jury selection, or statistical disparities in charging, convictions, or sentencing.

Those served with gang injunctions do not have an opportunity to challenge the injunction and do not have the right to legal counsel.

In the same circumstances as McCleskey v. Kemp, it would allow the defendant to challenge the racially disproportionate application of the death penalty based on statistics alone. In other words, if a defendant can prove that a similar defendant of a different race was given a more lenient punishment, the defendant is entitled to relief.

Future applications of the CRJA

This is a landmark piece of legislation and could be big for criminal justice. The CRJA would give any person in California unfairly convicted, sentenced, or charged with a crime the opportunity to challenge their position based on racial discrimination. This could allow for thousands of Californians who were mistreated by the criminal justice system to finally get justice.