Term Paper on "Criminal Gang Enhancements"

Term Paper 9 pages (3593 words) Sources: 12 Style: APA

[EXCERPT] . . . .

Criminal Gang Enhancements in Sentencing

CRIMINAL GANG ENHANCEMENT

IN SENTENCING

During the time period between the years of 1997 and 1998 legislation was focused on crime and most specifically juvenile crime. The work of Matthews and Ruzicka entitled: "Proposition 21: Juvenile Crime" (2000) published by the Capital Center for Government Law and Policy in a California Initiative Review relates that Proposition 21 had as its aim the amendment of both "the Penal Code and the Welfare and Institution Code" and this was specific to the "procedures used in the treatment of juveniles and adults who commit gang-related felonies." (Matthews & Ruzicka, 2000) According to Matthews and Ruzicka this law would bring about serious changes to the way. Proposition 21 would increase penalties related to street gang participation whether it be graffiti or vandalism. Seven years ago Proposition 21: The Gang Violence and Juvenile Crime Prevention Act was passed by California voters. (Yee, 2007) in the state of California Proposition 21 made California "one of 15 states that allow prosecutors" to make the decision "in cases involving charges of murder, sexual assault, arson, robbery and gang crimes whether the youth will be charged as adults. " (McKim & Rhor, 2007)

According to the work of McKim & Rhor (2007) those opposing this proposition included: "Juvenile-justice advocates, the state public defenders association and juvenile court judges" all of whom believed that juveniles tried in adult courts were more likely to commit crimes again that were the youth tried in juvenile court. According to (McKim & Rhor, 2007) McKim & Rhor state that: "...the U.S. Centers for Disease Control released a study in April 2007 that states conclusions that "teens transferred to the adult justice system are 34% more likely to be arrested again." (McKim & Rhor, 2007) McKim & Rhor (2007) relate that according to Jonathan Laba, deputy director of the Pacific Juvenile Defender Center: "The law violates due process because it vests exclusive discretion in the prosecution to choose whether the child be tried as a minor or an adult -- a decision made with no standards and no opportunity for judicial review." (Yee, 2007) McKim & Rhor (2007) additionally relate the statement of Dan Macallair, executive director of the Center of Juvenile and Criminal Justice in San Francisco who stated: "Because the use of direct file provisions varies by county, Proposition 21 has created a troubling phenomenon. Kids who live in certain counties, simply by geography, are at greater risk for imprisonment for less serious offenses, We've always talked about racial and ethnic disparities; now we need to start talking about geographical disparities." (McKim & Rhor, 2007) Yee introduced a bill earlier this year for elimination of life without parole for juvenile offenders. The work of Gould and Mastrofski entitled: "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution" states that "Democratic societies create a tension between the latitude granted law enforcement officials to intrude into citizens' affairs and the rights of those citizens to be free from state interference. This dilemma is especially poignant in the United States where the Constitution frames the limits on state encroachment." (Gould and Mastrofski, 2003-2004) the work of Gould and Mastrofski asks three questions which are those of: (1) How frequently do patrol officers engage in searches? (2) How often do their searches meet constitutional standards?; and (3) What accounts for the occurrence of unconstitutional searches?" (Gould and Mastrofski, 2003-2004) These authors state that "the police, usually the first agents of the justice system" in dealing with matters of the law "play a crucial role in determining the quality and quantity of justice Americans receive. (Gould and Mastrofski, 2003-2004) in fact, in jurisdictions where police officers are perceived to abide by the rules of law there is more respect for and adherence to the law however, in jurisdictions where police are perceived as being unethical the police are not respected and laws are not followed as in other jurisdictions. There is contemporary research suggesting that police officers have only a vague knowledge of the law relating to search and seizure. These authors further state that there are two studies which show that a significant number of police officers in states with law on warrantless searches and seizures no more restrictive than United States Supreme Court decisions have practically no working knowledge of that law" (Memory, 1988:34)." (Gould and Mastrofski, 2003-2004) a study which soon followed this one replicated this study in its findings. It is related by these authors that while there have been prior studies of police officer behavior and practices these studies have not coded the searches for constitutionality. In a recent study of "both the New York Attorney General's Office and the U.S. Attorney for the Southern District of New York evaluated the stop-and-frisk practices of police officers in New York City with findings that "up to one-seventh of stops failed to meet constitutional standards (Civil Rights Bureau, 1999; as cited in Gould and Mastrofski, 2003-2004) This information was based on interviews with the police officer's in self-reports which goes on to state that there is routine failure on the part of police officers to file the paperwork that is required after having searched or frisked an individual. (Weiser, 2999:A1; as cited in and Mastrofski, 2003-2004) it was stated as being found in the work of a law student from Columbia University in an analysis of police arrest records "at the time of Mapp v. Ohio (1961) due to findings that the rise in discovering evidence in drug cases in 'plain sight' rose 40% making it obvious that officers were coloring their testimony even to the point of falsehoods to gain convictions. (Comment, 1968:94) a line thin has been crossed in the case of the police officer who is following a reward system other than constitutionality and even at the same time believe that the rules are being upheld concerning search and seizure. "Sometimes officers engage in search practices without accurate knowledge of the legal requirements. They may be unaware that certain practices are constitutionally forbidden or that others are permitted (Heffernan and Lovely, 1991; Memory, 1988; as cited in Gould and Mastrofski, 2003-2004) These practices of the police officer are monitored and these authors state that "the organizational 'cocoon' is not impermeable; outside forces may intrude. A relevant consideration is how and how much police adherence to constitutional standards is monitored by the 'courtroom workgroup' (Eisenstein and Jacob, 1977; Eisenstein et al., 1988; as cited in Gould and Mastrofski, 2003-2004) in other words the police officer is monitored by the prosecutor, defense attorney, and judges for constitutional compliance. Furthermore, the public, and powerful political groups seek to alter these laws to their benefit or protection through public outcry of police wrongdoing. (Gould and Mastrofski, 2003-2004; paraphrased) Police conformity with the law is addressed through 'empirical observation' with those observing the officers coding many aspects of that which was observed in a systemic fashion with findings starting that out of 115 suspects in the sample 31% were "searched unconstitutionally." The following chart labeled figure one lists the observations of police officers in this study.

Constitutionality of Police Searches

Source: (Gould and Mastrofski, 2003-2004)

Constitutionality of Police Searches by Arrest of Citation (excluding searches incident to arrest or citation)

Source: (Gould and Mastrofski, 2003-2004)

Constitutionality of Police Searches by Intrusiveness of Search

Source: (Gould and Mastrofski, 2003-2004)

Stated as a disincentive for an officer to violate standards of the constitution is the presence of citizens who are witnessing their practices and could provide courtroom testimony against the officer. Citizen observation of officer's behavior provides a greater incentive for adherence to constitutional standards. (Gould and Mastrofski, 2003-2004 paraphrased) the amount of policing experience also affects the motivation of the police officer in terms of constitutionality of search adherence and the officer is likely to experience shifts "in initiative, energy and motivation...as well." (Ibid) These categories are used:

Rookies - low in knowledge and skill/high in initiative

Veterans: prone to cynicism/know the ropes and how to avoid hassling with management, courts, and the public.

It is pointed out in these study findings that officers with 4-9 years experience who are in the middle years of work experience both have the knowledge to constitutionally conduct search and seizures that are legal and as well, they are "sufficiently motivated to do so." (Gould and Mastrofski, 2003-2004) as one can see in the following results from the study, the police officers were unconstitutional in their practices far too much of the time in search and seizures.

Suspect Searches: Bivariate Distributions

Source: (Gould and Mastrofski, 2003-2004)

Conclusions of this study states that a survey was conducted among those that had contact with police officers showing that 73% of police searches in America resulted from a traffic stop that are viewed as illegitimate by citizens who are searched. Findings of this study state that the constitutional violations were found to be higher in a small number of police officers in this study.

March 20, 2007 press release relates… READ MORE

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