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​How Prosecutors Manufacture Gang Members in California

A sprawling murder case shows what happens when lots of suspects get the "gang member" label.

by Max Cherney
Jun 6 2016, 6:30pm

A person identified only as Gonzales shows one of his tattoos, indicating that he is a member of the Sureno 13 gang, Aug. 7, 2003, at the Mecklenburg County Jail in Charlotte, North Carolina. (AP Photo/The Observer, T. Ortega Gaines)

Three years and one hung jury later, the story of the 2013 Valentine's Day murder of Erick Gomez in Modesto, California, has lurched to a hazy, disquieting conclusion. Stabbed numerous times in the back and then eventually shot as his then-pregnant girlfriend looked on, prosecutors argued Gomez's murder was the result of an ongoing rivalry between the Norteño and Sureño street gangs, and on Thursday, the five remaining defendants—the shooter is on the lam—expected to go to trial in June struck plea bargains.

The defendants, including Jesse Sebourn, whose beatdown at the hands of Norteños was alleged to precipitate the retaliatory murder, will each receive between 16 and 21 years in state prison, with four of them getting extra time by virtue of their alleged Sureño affiliation. But experts question whether justice was actually meted out here, leaning as the case did on a peculiarity of California gang law that seems to disproportionately target people of color.

Besides the tragedy of the murder itself, what has made the case remarkable is its reliance on a 1988 state law called the Street Terrorism Enforcement and Prevention (STEP) Act, which gives prosecutors broad powers to intensify punishment. For years now, critics have argued the law skirts over the tricky question of how to properly ID gang members. Originally intended to curtail the perception that gang activity was getting worse in the state, the law—in large part because of its so-called gang enhancements, or tag-on charges—has drawn scrutiny for what appear to be generally middling results.

And then there are the more glaring criminal justice concerns.

"Tag-on charges has become a way for the criminal justice system to over-punish people," Nicole Gonzalez Van Cleve, professor of criminal justice at Temple University in Philadelphia, told VICE. She explains that prosecutors use the law to "escalate punishment, and during negotiations for a plea agreement, the public defender will most likely have to argue about the charges, and not the sentences." Pre-trial detention, the professor contends, contributes to the accused taking plea bargains as well, since county jails are often overcrowded, with bad food and little in the way of programming or recreation time.

All of the defendants in the the Modesto murder case—besides the actual shooter, who remains at large—got arrested well over three years ago.

Though the local district attorney's office did not return calls for comment, Thomas Brennan, the assistant DA who litigated the original trial that resulted in a hung jury, did discuss the outcome briefly via text message. "The defendants pled... because they knew the first jury heard overwhelming evidence of their guilt, and any other jury would likely convict," Brennan wrote, calling the attackers "proud Sureños" who would be "embraced by the Mexican Mafia"—the prison gang that loosely controls the Sureños on the outside, according to the FBI. (The feds say the Norteños are controlled by a prison gang called Nuestra Familia.)

Gang expert Jesse De La Cruz has long disputed the alleged killers' involvement with street gangs, and argues Gomez's death had nothing to do with the real North-South (Norteño vs. Sureño) beef. A former gang member who spent decades in prison, De La Cruz now studies the sociology of criminal groups and testifies for defense attorneys as an expert witness in gang trials.

He stresses that the criteria prosecutors use to identify gang members are deeply flawed, and not based on the realities of the communities they are supposed to protect. "People in the neighborhood don't run around asking who is a gang member and who isn't," he told me over the phone. "Nobody does that. It's bullshit. But the cops believe that gang members tell one another everything. Say homeboy is part of a gang, and he's got a gun—how am I supposed to know that? Is he going to tell me? Come on, bro. The whole point of carrying a gun is the element of surprise."

Figuring out who's in which gang is also subject to the whims of any given law enforcement agency, Van Cleve argues, and racial stereotypes inevitably factor in. As one long-time California cop put it, "I don't do gang work because it's murky and very subjective. It's like, tell me the difference between a beer league baseball team and a gang. They both wear uniforms, hang out together—it's a blurry line."

Read: Young Hispanic People Are Squeezed Between Cops and Gangs in California's Central Valley

Experts say the reality is that people who aren't in gangs often live in communities where it would be impossible not to socialize with gang members—which is one of the criteria prosecutors can use to add an enhancement charge. Though the Gomez murder was horrific, what's less evident is whether the alleged killer and his accomplices are the hardened gang members prosecutors would have us believe.

It's at least possible that some of these defendants just lived in the wrong neighborhood. All we know for certain is that they're headed to prison, where the chances of getting involved with gang activity are likely to be sky-high.

"Jesse Sebourn was not a gang member," De La Cruz said. "But now, if you think about it, the state has made Jesse into a gang member. We're creating gang members and gangs where there wasn't one."

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