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We recently reported on the case of Brandon Duncan, a California-based rapper facing a life sentence for writing songs about gang violence. Not to be outdone, in Illinois, Lake County State’s Attorney Mike Nerheim, Lake County Sheriff Mark C. Curran and other officials recently announced that:

21 alleged members and associates of the 4 Corners Hustlers Street Gang were arrested after a months-long investigation that recovered large quantities of cocaine, heroin, prescription pills and marijuana.

The arrests, which took place on October 30, 2014, were:

…coordinated between the FBI, the DEA, the Lake County Sheriff’s Office and the Mundelein, Zion and Waukegan police departments.

In court on November 28th, 13 of the defendants were arraigned “facing a host of charges under RICO guidelines related to murder and trafficking of guns, heroin, cocaine and prescription drugs.”

However, they all entered pleas of “Not Guilty.”

That’s because, like Brandon Duncan, many of them were being charged for crimes they did not commit:

All of those arraigned Friday were charged with RICO Conspiracy and RICO Enterprise, umbrella charges that can hold gang members responsible for actions taken by the enterprise, up to and including murder. All face potential life in prison sentences at this point, officials said, but none are charged with specific murders. [emphasis added]

RICO stands for Racketeer Influenced and Corrupt Organizations Act and it:

…allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them, closing a perceived loophole that allowed someone who told a man to, for example, murder, to be exempt from the trial because he did not actually commit the crime personally.

And while this tactic is certainly useful from a law enforcement perspective, from a civil liberties perspective, there are a number of concerns.

The Slippery Slope

On paper, it all sounds great. RICO allows law enforcement to throw the book at criminals who might otherwise get away with murder. But it also opens the door for the government to send people to prison for crimes they never committed. And while it is difficult to drum up sympathy for a well defined gang like the 4 Corners Hustlers, not all ‘gangs’ are that easily defined.

Consider the Gangster Disciples.

Illinois senator Mark Kirk recently said that his:

…top priority is to arrest the Gangster Disciple gang, which is 18,000 people. “I would like a mass pickup of them and put them all in the Thomson Correctional Facility,” says Kirk. “I will be proposing this to the assembled federal law enforcement: ATF, DEA and FBI.”

When asked what the charges against them would be, Kirk said “drug dealing” and “murdering people, which is what they do.” Obviously, not all 18,000 suspected members are drug dealers and murderers. However, by applying laws like the RICO act, they could all be charged as if they were.

Unfortunately, the Gangster Disciples:

…are not the well organized, RICO-friendly gang of yore, but splintered, disorganized factions that kids join for a multitude of reasons, including not getting hurt or killed.

It’s a sad reality that some neighborhoods are so dangerous you need to be affiliated with one gang or another just to survive. But that’s a fact of life in some parts of Chicago and mass incarceration would do nothing to change it.

On the other hand, it could potentially increase the number of gang members. That’s because, as one prisoner explained:

Once you get to prison, you have to join a gang. You have no choice…If you don’t join a gang, what happens is you become an outcast, and you leave yourself open for people to mess with you. Being in those gangs protects you from being messed with; that’s why you stay together.

And while prison gangs are in many ways different than street gangs, they would no doubt help to radicalize the thousands of people that would be forced to join them as a result of Senator Kirk’s mass incarceration plan.

Why Mass Incarceration Is a Bad Idea

How would Kirk’s plan work, anyway?

First off, there are the logistical issues with rounding up 18,000+ people. Supposing that you had the manpower to get them all, where would you put them? Senator Kirk says he wants to put them in Thomson Correctional Facility. But, Thomson Correctional Facility only has 1,600 cells. That comes out to 11.25 prisoners per cell.

Then there are the monetary concerns.

  • According to Senator Kirk, the effort to lock up the Gangster Disciples “will require $30 million in federal funding.”
  • According to ALEC, the American Legislative Exchange Council, the average annual cost per inmate in Illinois is $20,146.
  • For 18,000 inmates, that would be an annual cost of $362,628,000
  • But, some officials estimate there could be up to 30,000 Gangster Disciples. That would cost of $604,380,000 per year.
  • With RICO type sentencing, these people could face life sentences, just like the 4 Corners Hustlers. The potential cost? Tens of billions.

And these are just the implementation costs. Potential legal costs could add billions more.

Consider that, since 2004, Chicago has spent more the $500 million on lawsuits. Five Hundred Million. Think of what that money could have paid for: Better schools. More teachers. Better roads. College scholarships. Half a billion dollars can do a lot of good. But instead of being used for the benefit of Chicago citizens, it has been taken out of their pockets and pay off lawsuits against the Chicago police.

As the practice of using RICO type laws to facilitate mass incarceration increases, the exposure of municipalities to lawsuits also grows. It’s hard to be tough on crime if you go bankrupt.

And what about the Constitution?

Although the First Amendment doesn’t specifically discuss freedom of association, the Supreme Court, in NAACP vs. Alabama, ruled that “the freedom of association is an essential part of the Freedom of Speech because, in many cases, people can engage in effective speech only when they join with others.”

And yet, freedom of association is difficult when associating with certain people is illegal.

Unfortunately, that is the future towards which we are heading.

The New York Model

Senator Kirk’s plan for mass incarceration is fiscally irresponsible, impractical and potentially unconstitutional. But, there are other models that seem to have worked. Just look at New York:

For the past two decades New Yorkers have been the beneficiaries of the largest and longest sustained drop in street crime ever experienced by a big city in the developed world. In less than a generation, rates of several common crimes that inspire public fear — homicide, robbery and burglary — dropped by more than 80 percent. By 2009 the homicide rate was lower than it had been in 1961. The risk of being robbed was less than one sixth of its 1990 level, and the risk of car theft had declined to one sixteenth.

How did they do it? One of the key lessons learned was that:

Reducing crime does not require reducing the use of drugs or sending massive numbers of people to jail.

Instead of focusing on drug busts and mass incarcerations, New York added more cops to the force and started aggressively enforcing minor offenses. How did they pay for the extra officers? By avoiding giving millions to the prison industrial complex:

…the difference between New York’s incarceration trends and those of the rest of the nation—and the money that the city and state governments avoided pouring into the correctional business—has more than paid for the city’s expanded police force.

By focusing on lesser charges, more people were being arrested. But, it seems to have had a net positive effect:

Even with more people coming into the system, the overall bed count was declining because people weren’t staying as long.

However, New York’s system was not without faults. Their aggressive Stop and Frisk policy led to numerous lawsuits. Lawyers and activists challenged the constitutionality of the practice, and the NYPD faced widespread accusations of racial profiling. Despite the fact that the cases are still playing out in court, they have resulted in a mountain of bad press for the NYPD.

As a result, New York’s mayor, Bill de Blasio, “has pledged to reform the stop-and-frisk program, and is calling for new leadership at the NYPD, an inspector general, and a strong racial profiling bill.” Yet, even with all of its shortcomings, there are still lessons to be learned from New York. Perhaps the most important one is this:

Decreasing crime and decreasing the prison population go hand in hand.

In light of that, the only people that benefit from mass incarceration are the people getting paid to house the inmates, and they people they are paying to make sure that the prisons stay full. And if you don’t think they are paying the government to keep the prisons full, think again.

Instead of trying to figure out better ways to put people in prison, we would be better served coming up with ways to keep them out.

3 Responses

  1. marlene

    This such a freakin’ egregious travesty of justice that the system needs to be recalibrated and the DOJ needs a new AG. If they want to incarcerate on the basis of RICO, they should start with the cabal in the white house and the cabal of corrupt judges. A life sentence is only for states that don’t have the death penalty or are too cowardly to kill a killer. These above individuals are hardly killers. Life? It’s outrageous and a fund needs to be set up to pay a constitutional lawyer to argue that the punishment needs to fit the crime. There’s too much overcriminalization and too many unconstitutional laws and regulations. “People just want to be free…” Oops! Did I just quote a criminal song?

    Reply

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