HD40 - HJR 573 Final Report: Study of Criminal Gangs
During the 2005 Session of the Virginia General Assembly, Delegate David B. Albo introduced House Joint Resolution 573. The resolution, which was passed by the General Assembly, directed the Virginia State Crime Commission to “study criminal street gang conduct and characteristics for the purpose of reducing the burden on prosecutors by producing a formal listing of gang names coupled with conduct and characteristics unique to those gangs.” During the same Session, Delegate Stephen Shannon introduced House Bill 2087, which was referred to the House Courts of Justice Committee, and then referred to the Criminal Law sub-committee. The Criminal Law sub-committee sent a letter to the Crime Commission asking them to examine the issue; ultimately, this project was incorporated into the study directed by House Joint Resolution 573.
One of the requirements for a prosecution under Virginia’s criminal gang statutes is proving that the criminal group involved meets the definition of a “criminal street gang.” This term has a precise definition, and includes the requirement that the Commonwealth prove that the criminal group has members who “individually or collectively have engaged in the commission of…two or more predicate criminal acts, at least one of which is an act of violence….” The terms “predicate criminal acts” and “act of violence” also have precise definitions which must be met in order to have a successful prosecution.
Discussions with gang investigators and members of Virginia’s Attorney General’s office revealed that one of the chief hindrances for prosecutors in using the gang statutes is the burden of showing that a “gang” meets the definition of a “criminal street gang.” Prosecutors will typically employ an expert witness to testify to the characteristics of a particular gang, including such things as the gang’s usual territory, and any “identifying sign or symbol” which the gang generally employs. However, proving that members of the gang have engaged in two or more predicate criminal acts can be difficult.
Creating a database of identified gang members, along with their convictions for offenses that qualify as predicate criminal acts, would be a helpful tool for Commonwealth’s Attorneys in this regard. Such a database could facilitate a prosecutor’s trial preparation in a gang case by informing him what evidence is available to prove this element of the offense. Obtaining certified copies of a conviction, especially for felony offenses committed in Virginia, would then be a relatively simple task.
The basic data needed to create such a database for prosecutors is already gathered on a routine basis by the Virginia Department of Corrections and the Virginia Department of Juvenile Justice. Both agencies interview all inmates (or committed juveniles in the case of the Department of Juvenile Justice) as part of the admission process into state facilities, specifically screening for and seeking to identify gang members. This screening is done for facility security purposes as well as the personal safety of the individual inmates. If the criminal histories of these identified gang members were examined and specific convictions for “predicate criminal acts,” including “acts of violence,” were collated, a “gang database” for prosecutors would automatically result. This database could then be updated on a periodic basis, providing prosecutors throughout the state with a useful and continually evolving information source.
The Commonwealth’s Attorneys’ Services Council should establish and maintain a statewide list of identified gang members who have been convicted of “predicate criminal acts,” including “acts of violence.” This information can then be disseminated to Commonwealth’s Attorneys as needed, to assist in criminal street gang prosecutions. Information for this collated list should come from the Virginia Department of Corrections and the Virginia Department of Juvenile Justice, and should be updated on a monthly basis. "Code of Virginia" § 16.1-300 should be amended to allow the Virginia Department of Juvenile Justice to provide this information to the Commonwealth’s Attorneys Services Council, and to allow the Department of Juvenile Justice to provide similar information to any state criminal justice agency for purposes of conducting research.