The following is a faithful paraphrase of what I told my juvenile client’s father this morning in response to his protests that his son was not a “gang member.”
Sir, I understand that this is your son’s first time in court on a juvenile case. I also understand that your son is not involved in an organized criminal enterprise simply because he and his friends beat up another kid for wearing the rival gang’s colors. Trust me, I would never label what your son and his friends did as “organized” in any way.
Your son is not a member of a gang; he’s the member of a group – and kids LOVE group identity. High school is even worse now than when you and I were there. Kids still worry about being liked by their peers. They want acceptance, but not from their parents. They want approval and support, but not from adults. Also, high school is DANGEROUS today, much more so than when we were kids. Three decades’ worth of poverty and urban decay have created an entire subclass of high school students who fear for their physical safety at the hands of kids whom they have to see every day in school. They don’t want safety from the police because the police can’t give it to them. They don’t want safety from the school administration because their actions often make things worse. One well-meaning adult can have a devastating effect on a child’s equilibrium with regards to safety and security. In short, teenagers want even less to do with adults now than we did when we were teenagers. But now they don’t just need social acceptance, they need safety and economic opportunity.
And so how do you expect a kid to react when he’s told that so long as he wears the same color as another group of kids, draws the same symbols on his binder, and shares the same hatred for a rival group, that he will have that group’s loyalty and support? The feeling must be intoxicating.
Now some of these kids are, in fact, organized into criminal enterprises. Some may even get orders from friends or relatives who are, in fact, involved in the prison gangs. They may even receive written orders that the prison gang leaders write on scraps of paper in their own urine. And after these leaders bribe prison guards to smuggle them out and these notes find their way to the streets, some kids may actually carry those orders out. However, this is a tiny fraction of the kids who claim any sort of gang affiliation.
But once boys like your son start aligning themselves with the handful of kids who are parts of these gangs, the state machine takes over. Every kid who yells “Norte” during a fight is believed to be part of a disciplined, quasi-military enterprise. The DA then charges these kids with “strike” offenses. When they turn 18 or 19, they pick up their first felony. Because of their strike offenses, they go away to prison for years and years. Once in prison, they join the actual prison gangs that the police claimed they were affiliated with in the first place. Eventually, they return to the streets with faces full of prison tattoos and no source of support or approval outside of the gang.
In short, the State wants to jump your son into the very gang they’re accusing him of having joined.
The good news is that the DA didn’t have the information that I have when he decided what to charge your son with. They don’t know about the victim’s concussion, so they won’t add the “great bodily injury” enhancement. Although I am more than a little annoyed that your son decided to waive his Miranda rights and brag about his gang “affiliations” to his probation officer, the District Attorney did not have any of your son’s boneheaded statements before deciding what to charge him with. Therefore, they didn’t have time to add the “gang” enhancement.
I agree that in an ideal world, your son wouldn’t have to plead to a felony assault charge that will prevent his juvenile record form being sealed; a kid should be allowed to make one non-fatal screw-up without having it hung from his neck forever. But none of that compares to having a strike on his record. If your son pleads TODAY, the DA won’t have time to aggravate the charges. Please, despite the fact that you met me only ten minutes ago, you need to trust me on this.