Tougher Md. Law On Gangs Sought

Amid Rash Of Violence, Prosecutors Say Statute Is Too Broad, Penalties Weak

September 13, 2009|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

As soon as Maryland's Gang Prosecution Act went into effect in 2007, prosecutors in Harford County tested it, filing charges against a group that had stabbed and beaten a man.

But when prosecutors couldn't show how the attack had furthered a criminal conspiracy, as required under the new law, the judge balked. They had to drop the gang charges and move forward with simple assault.

"It's a very unworkable statute. ... Most prosecutors haven't really bothered to do anything with it," said Harford County State's Attorney Joseph I. Cassilly, who contends that the law is watered-down and useless. "We need to go back through and look at the whole statute and, you know, redraft it correctly."

That's been a common refrain among prosecutors since the statute was passed. But now, after a spate of gang-related violence in unexpected areas - the beating of a middle school student in front of his vice principal, the killings of a 14-year-old Crofton boy and a 38-year-old Rosedale man, shootouts on an MTA bus and at the Inner Harbor - prosecutors see their best chance yet at changing the law.

This week, several of the state's top law enforcement officials - including Attorney General Douglas F. Gansler, Corrections Secretary Gary D. Maynard and Baltimore State's Attorney Patricia C. Jessamy - are scheduled to meet with the legislature's House Judiciary Committee, hoping to persuade members to craft a tougher and more useful law.

Prosecutors say the law's broad language makes it too difficult to legally define a gang or its members, that its penalties are too weak and that the most basic gang crimes, including handgun and malicious destruction misdemeanors, are not counted as chargeable offenses. Most would rather work around the statute than deal with its cumbersome burden of proof.

One model that many prefer is the federal Racketeer Influenced and Corrupt Organization Act, or RICO, which enables U.S. attorneys to prosecute gang members for the crimes of their colleagues. Three dozen states have similar laws. RICO "essentially makes it a crime to be a member of a criminal organization," said U.S. Attorney for Maryland Rod J. Rosenstein. His office has used the law to prosecute dozens of defendants at a time - members of the Bloods, the Black Guerrilla Family and MS-13.

Federal prosecutors can prosecute across multiple jurisdictions, and sentences in federal court are typically far stiffer than state penalties. That is the main reason that Maryland prosecutors hand their gang cases over to federal lawyers, even after spending months investigating them, said Tony Gioia, the Narcotics Division chief within the Baltimore state's attorney's office.

Gioia wants to see more "sentencing muscle" in the state's legislation, which now allows gang-related sentences to run concurrently with other penalties. Prosecutors also want clearer language on what the state means by "gang" and "ongoing criminal gang activity," the ability to charge a greater variety of underlying crimes as gang offenses and stiffer penalties for violators.

"You always want to see the strongest possible law and the strongest possible penalties," said Assistant State's Attorney Julie Glass, a deputy division chief of the city's firearms investigation/violence enforcement unit.

Gangs are relatively new to Baltimore, which is still in its first generation of such activity, while California is on its fourth or fifth, said Glass' partner, Assistant State's Attorney Kevin Wilson. But small neighborhood gangs are increasingly identifying with national groups such as the Bloods and the Crips, Wilson said, suggesting that the problem is getting worse.

The city's heavy heroin trade attracts gang interest from around the world, making "Baltimore a perfect breeding ground for gang action," Wilson said.

The FBI estimates that there are about 30,000 violent gangs in the country, with 800,000 members. In Maryland, those numbers are about 350 and 7,750, respectively, with 75 percent of the gangs operating from prisons. The facilities act as incubators, where gangs recruit new inmates looking for protection.

Efforts to rewrite the gang law are likely to be challenged by defense attorneys within the General Assembly, who have expressed concerns about the constitutionality of gang statutes.

"One of the things we won't do is prosecute people who are not involved in crimes just because they happen to have a yellow shirt. That's what our concern is," said Judiciary Committee Chairman Joseph F. Vallario Jr., a Democrat who is a past president of the Prince George's County Criminal Trial Lawyers Association. "We don't prosecute people for association."

But the committee has received criticism for the current law, Vallario acknowledged. He says he's keeping an open mind about this week's briefing.

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