Balkinization  

Sunday, December 23, 2012

Gang Violence and Terrorism

Jonathan Hafetz

Terrorism is largely the province of federal law. But a little-noticed decision from the New York Court of Appeals (the State’s highest court) issued earlier this month makes an important contribution to the field. The case, People v. Morales, involves an expansive—and novel—interpretation of the crime of terrorism. Following a gang-related shooting in the Bronx that killed a 10-year-old-girl and paralyzed another victim, the district attorney charged gang members under New York’s anti-terrorism statute, enacted after 9/11. The prosecution argued that the defendants, who were from one of the most feared Mexican gangs in the Bronx, had committed a “crime of terrorism” because their intent was “to intimidate or coerce a civilian population,” namely the Mexican-Americans who resided within the gang’s geographic area. The jury convicted.

In reversing the convictions, the Court of Appeals underscored the potential breadth of the prosecution’s theory. “The specter of ‘terrorism,’” it explained, could be invoked “every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier.” The court, moreover, noted that the legislative history failed to support the statute’s use to address gang-on-gang violence. (The legislature instead cited, for example, the 9/11 attacks, the 1998 bombings of American embassies in Kenya and Tanzania, and the 1995 destruction of the Oklahoma City federal office building as crimes of terrorism). The court also reversed the defendants’ convictions for the underlying offenses specified in the terrorism counts (murder, manslaughter, etc.), finding that the terrorism charges allowed the prosecution to introduce highly prejudicial evidence about the gang’s prior criminal acts that would otherwise have been inadmissible.

Gang violence causes great harm to and sows fears within urban communities across the country. But treating gang violence as a crime of terrorism would have significant—and often unwelcome—effects. It risks transforming many incidents of gang violence and other street crimes into acts of terrorism, even where the violence was not intended to create fear among the general population or lacked a political motivation. While this might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs (as detailed in an amicus brief submitted by NYU’s Center on the Administration of Criminal Law). At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

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