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Even With A Governor’s Pardon, Jesus Aguirre, Jr. Is Still a Gang Member According to Orange County

Even With A Governor’s Pardon, Jesus Aguirre, Jr. Is Still a Gang Member According to Orange County

In March of 2010, Jesus Aguirre, Jr. had just turned 16 and was hanging out with a group of friends in Buena Park, California, when a fight broke out amongst nearly 20 boys. One of the boys fired a shotgun full of birdshot at another teen, who sustained “superficial” injuries, according to the Buena Park Police Department report. The victim and witnesses said specifically it was not Jesus who fired the shot, but nonetheless he was arrested, charged as an adult by the Orange County District Attorney’s Office for gang-related criminal assault with a dangerous weapon, tried, and sentenced to life in adult prison.

In other words, Jesus — who hadn’t even fired the gun and was just a kid — was charged and given a life sentence as if he were an adult who had committed a highly aggravated and violent crime.

In February 2014, after various appeals and petitions, an appellate judgereduced Jesus’s sentence to 17 years. This past December, California Governor Jerry Brown commuted his sentence, and Jesus was released on parole. In his letter, Brown remarked on Jesus’s rehabilitation — he has participated in programs ranging from anger management to computer programming and has strong community support — but the governor did not comment on the reasons why Jesus received such a harsh sentence: Orange County prosecutors aggressively prosecuted Jesus as an adult and sought the maximum statutory punishment.

Jesus Aguirre’s case represents the worst of the California criminal justice system: aggressive prosecution of children, based on laws that are biased against kids of color. Abraham Medina, the Executive Director of Resilience O.C., a community group that works with young people of color, told me that Jesus’s commutation “clearly acknowledges that gang enhancements and gang injunctions are often utilized to over-prosecute and over-punish youth in Orange County and across the state in such a manner not conducive to justice for victims or public safety goals.”

Frankie Guzman, Director of the California Juvenile Justice Initiative for the National Center for Youth Law, says that charging kids as adults contradicts the mandate of the juvenile court system that youth should be rehabilitated. “Many kids like Jesus are thrown to the wolves in harmful prison environments without social and family support,” Guzman says. “Against all odds and in spite of a lack of developmental opportunities, Jesus has shown that kids can be rehabilitated.”

At 12, Jesus was sent to an alternative high school and sought out protection from some low-level street gang members from his Orange County neighborhood. Over the course of the next two years, Jesus was arrested some 25 times for minor crimes like graffiti, riding a bike without a helmet, writing on the sidewalk with chalk, and joyriding. (Like many Latino youth in California, Jesus lived in a heavily policed neighborhood where cops target groups of brown teenagers as likely gang members.)

Over half of Jesus’s arrests resulted in a STEP (Street Terrorism Enforcement and Prevention Act) notice, which is like a ticket issued by a police officer for what is perceived to be gang-related activity. Usually, a signature on the document means that the recipient is admitting to being a gang member. STEP tickets were authorized under California’s 1988 STEP Act, which made all alleged gang activity — even minor crimes like graffiti — eligible for enhanced sentences in California; prosecutors use the tickets as evidence that defendants have records of being stopped by the police for alleged gang-related activity. Purportedly, kids (and adults) issued STEP tickets are told about the consequences and asked to sign an acknowledgement, but, advocates say, the reality is that most kids have no idea what the document represents and have little recourse.

STEP notices also placed Aguirre at risk for being placed in CalGANG, the California gang member database, and, by the time Jesus was arrested for the alleged shooting incident in 2010, he had already been profiled by law enforcement as a gang member because of his history of STEP notices and his race. A police report noted Aguirre’s “gang-style appearance” and that he “frequented gang hangouts,” for example, along with his various citations for specific types of graffiti.

Then Jesus was prosecuted as an adult through a process known as “direct file,” which allowed the Orange County prosecutor to move felony cases where the defendant is 14 to 17-years old from juvenile to adult court. Guzman, of the National Center for Youth Law, says that Jesus’s placement in adult court fell entirely within the prosecutor’s discretion. This past November, Californians voted to eliminate the direct file process, requiring a neutral judge to make the ultimate determination, but the vote was too late to help Jesus.

Particularly concerning in Jesus’s prosecution was the use of an undercover informant within the Orange County juvenile facility. As has become clear throughout the still-unfolding Orange County jailhouse informant scandal, Orange County police and prosecutors intentionally and repeatedly used a “snitch” network to obtain incriminating evidence against defendants, especially in gang cases. Prosecutors used this tactic against Jesus, who was detained in juvie on a parole violation while gang unit officers sought more incriminating evidence. Deputies at the juvenile detention center placed Jesus in a cell with a friend, who went by the moniker “Lil Stinky.” The two were recorded for four hours, and, while the full recording has not been released, a gang officer’s summary indicates that both boys discussed various alleged crimes they had committed, as well as the fact that both were at the park the day of the shooting, but hadn’t shot the weapon. (I reviewed the officer’s summary and notes about the recording.)

The DA somehow interpreted Jesus’s statements to amount to a “confession” and filed attempted murder felony charges against Jesus.

While the jailhouse informant scandal has not yet extended to the juvenile system, Jesus’s case suggests that the same aggressive tactics — informants, gang enhancements, and excessive sentencing — used by Orange County DA Tony Rackauckas’s office against adults are also used against young people. “The Orange County DA’s office is notorious for abusing discretion,” says Guzman, “and even for condoning illegal activities to win.”

But, even though the OC DA’s alleged informant network led a judge to toss out the death penalty for a mass shooter, the gang-policing machine continues to mark communities of color. Medina, the community advocate, said that when Jesus went to check in for parole, the Buena Park Gang Unit Officers asked him to sign a STEP notice, acknowledging that he was a gang member. He refused.

From Gang Allegations to Deportation: How Boston is Putting its Immigrant Youth in Harm’s Way

From Gang Allegations to Deportation: How Boston is Putting its Immigrant Youth in Harm’s Way

The Trump administration uses Sanctuary Cities as punching bags in its war against immigrants. But even in the cities taking federal heat for protecting immigrant communities, a little-understood, post-9/11 institution called the “fusion center” is playing a starring — if behind the scenes — role in the Trump-Sessions deportation regime. Despite promises from liberal mayors, local police departments are quietly using fusion centers — and the local gang databases housed in them — to aid ICE in seizing and deporting some of the most marginalized young immigrants in the country.

In Boston, the problem has reached crisis proportions, striking fear into immigrant communities, especially those hailing from Central America.

Local law enforcement is “the tip of the spear” in the Trump deportation machine

On September 21, 2017, Attorney General Sessions came to Boston to speak to federal prosecutors, where — facing protests outside — he delivered a cynical, ominous speech warning his Boston area employees about the threat posed by MS-13, a Salvadoran gang. (Massachusetts is home to over 40,000 people who were born in El Salvador.)

Sessions told the group that he had a message from Donald Trump to MS-13: “We are coming for you. We will hunt you down; we will find you, and we will bring you to justice.” He congratulated Boston-area prosecutors for their 2016 federal indictment of nearly 60 people alleged to be affiliated with MS-13 and asked for more of the same. But the feds can’t do it alone, he said, noting that “street level intelligence and investigation” is key to “successfully investigating and prosecuting this group of thugs.” He called “state and local law enforcement…the tip of the spear” in the fight against MS-13, and described unaccompanied minors as possible “wolves in sheep [sic] clothing.”

While he framed MS-13 as a savagely violent group, Sessions said he’d issued directives to field prosecutors to “renew their focus” not on violent crimes but on immigration offenses, especially where the immigrants “have a gang nexus.”

Months earlier, in the chaotic first few weeks of the Trump administration, Boston’s Mayor Marty Walsh gave a rousing press conference at City Hall, promising to defend the city’s immigrant community against the likes of Sessions and Trump. “Boston was here for me and my family,” the son of Irish immigrants said. “And for as long as I am mayor, I will never turn my back on those who are seeking a better life. We will continue to foster trusting relationships between law enforcement and the immigrant community. And we will not waste vital police resources on misguided federal actions.” Walsh even offered to let immigrants sleep in his office, so no one in the city need live in fear of Immigration Customs Enforcement (ICE).

But Walsh’s own police department was at that moment putting immigrant youth at risk of deportation by sharing information with those very federal immigration officials, who were newly emboldened to seize undocumented young people alleged to be gang involved. Indeed, even the Boston Public Schools Police were, and continue to be, involved in what some advocates are now calling a “school to deportation pipeline.”

In order to understand how that pipeline works, Walsh and other city policymakers should take a closer look at both the Boston Police Department’s local spy center and its gang database — which, whether out of ignorance or cowardice, they have largely ignored to date. Then officials should follow the lead of other big cities, and make necessary changes to protect our youth.

Post-9/11 terror hysteria, the war on drugs, and a new immigration crisis

The Boston Regional Intelligence Center (BRIC) is a post-9/11 “fusion center,” originally formed to facilitate the sharing of counterterrorism intelligence among state, local, and federal law enforcement. The federal Department of Homeland Security, the parent agency of ICE, provided initial funding for the spy center when it opened in 2005, and has since given it hundreds of millionsof dollars in grants to support its operations. The BRIC is one of nearly 100 similar centers nationwide that facilitate the sharing of counterterrorism intelligence across different levels of government, with the goal of breaking down stovepipes and providing law enforcement with an infrastructure for “connecting the dots.”

The BRIC is located at BPD headquarters and run by the Boston Police Department. The center collects, analyzes, and shares street level surveillance information in the form of BPD incident reports; reports from Boston School Police; and other types of information, including surveillance feeds from DHS-funded cameras throughout the city, and data from ShotSpotter devices, which listen for gunshots in real time. The center also collects and analyzes field, interrogation, observation (FIO) reports, which are based on police officer surveillance of individuals and groups on the streets, at schools, and in other public places. Often these FIO reports are generated from vehicle stops or stop and frisks, but other times the people monitored have no idea the police are watching them and taking notes about what they’re doing, who they’re with, or what they’re wearing. The Boston Police Department’s gang database also lives at the fusion center, making it easy for ICE agents to access its information.

The BPD’s gang database, like those in other large cities nationwide, operates on a point system. Based on the center’s surveillance, the BPD assigns points; ten points triggers reasonable suspicion of criminal activity, according to BPD policy, enabling officers to classify someone as a gang member and put them in the database. Like other gang database systems, no actual or even alleged criminal activity is required for inclusion in the database. Oftentimes, there is none alleged. For example, if a Boston Police officer assigned to work in a public school says that someone is seen communicating with a person already in the gang database, that’s four points. If law enforcement sees a person wearing a particular color hat or shirt, that’s another four points. If the cop sees a person in a “group related photograph” on Facebook or Instagram, that’s another two points, adding up to ten total. That’s it.

Despite the very low bar for admission into the database, when the Boston Police Department decides someone is a gang member, the designation can have life shattering consequences — especially when the information makes its way into the hands of immigration officials.

The image below is taken from a Homeland Security Investigations (HSI) case file, which was submitted to a Boston federal court in deportation proceedings against a young Central American Bostonian in 2017. According to his attorney, the young person, whose name we are withholding due to his ongoing immigration court proceedings, has no criminal record; ICE seized him solely because of an allegation of gang involvement in the Boston Police Department’s BRIC gang database.

As you can see, there is no allegation of criminal activity in the “verification report details” that the Department of Homeland Security presented to the immigration judge. It merely includes a number of references to field, interrogation, observation (FIO) reports claiming the young person was seen associating with other young people who are in the gang database. It is purely guilt by association that put this young man in immigration detention. And a large portion of the points come from uncorroborated statements by a school police officer, while the others come from the Boston Police Department and the Massachusetts State Police.

According to local immigration attorneys, Sessions’ commitment to using local law enforcement’s street level surveillance, and the Boston Police Department’s cooperation with those efforts, has led to a spike in arrests of young, mostly Central American people in East Boston solely on the basis of their inclusion in the BPD’s gang database. This bears repeating. Immigration attorneys who work with youth in Eastern Massachusetts confirm that in the past year, they’ve seen an increase in ICE arrests of young Bostonians who have never been arrested or even accused of a crime, solely because they are listed in the BPD’s gang database, and often initially due to statements made by school police officers.

These seemingly targeted arrests of Central American youth raise the question of whether the gang database disproportionately features Latinos. In Chicago, a study from February 2017 showed that of the nearly 65,000 people listed in the Chicago Police Department’s gang file, 75% were Black and 21% were Latinos. In July of 2017, a Mexican national living in Chicago, who had been falsely included in the CPD’s gang database, filed a federal lawsuit against the Chicago Police Department. The man, who has lived in the United States since he was five years old, was arrested and faced deportation proceedings because of the CPD’s allegation of gang involvement. As his lawyers at the MacArthur Justice Center argued, “The Chicago Police Department has a policy and practice of falsely labeling young men — almost all of whom are Latino or Black — gang members.” Advocates say that the racial makeup of the Boston database is likely similarly out of whack with the city’s overall demographics.

Local policymakers must act to bring Boston Police policy in line with Sanctuary protections

Policymakers in other cities have taken action to protect their most marginalized residents from discriminatory policing and federal overreach, and Boston should follow their lead. In response to the Trump election, the Mayor of San Francisco cut off cooperation with the FBI’s Joint Terrorism Task Force, upon which agents from DHS’ ICE agency sit. In Portland, Oregon, city leaders responded to a reporter’s inquiries about that city’s gang database, and specifically its racial makeup, by shutting down the database for good. Baltimore, meanwhile, shuttered its controversial plainclothes policing unit in 2017.

Boston’s leaders should take a close look at our own police department’s gang databasing system, and at the BPD’s policies governing information sharing with federal agencies. Among the questions local leaders should ask the police: What kind of department approval, if any, must ICE agents get before accessing the gang database? How many times have ICE agents accessed the database in recent years? What is the racial makeup of the database? Is there any evidence the gang database has led to a decrease in violence? How many people included in the database have never been arrested on suspicion of committing a violent crime? How can someone learn if they are in the database? And what, if anything, can they do to get their name removed if they think they’ve been wrongfully accused? Finally, how is information from Boston School Police officers making its way into ICE’s hands, and enabling the deportations of BPS students?

If Boston’s leaders truly want to protect the city’s most marginalized residents from Trump’s deportation force, they need to get these questions answered as soon as possible, and then act accordingly. Doing so will serve the dual purpose of helping the city engage in a long-deferred conversation about the role of gang databases in BPD policing, with an eye towards protecting young immigrants from the long arm of Trump’s ICE — as well as addressing racial disparities that impact not just immigrants but also African Americans. We know young people are more likely to be system involved if they are listed in a gang database, a problem that has long predominately impacted Black youth. Our Black and Brown youth deserve to be treated better.

Boston’s mayor and local media have of late been publicly soul-searching about the role racism plays in our city. We cannot meaningfully address anti-Black and Brown racism, or truly protect immigrants, if we don’t confront the role the Boston Police Department’s gang database plays in the lives of young people of color in our city.

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Inertia and the Death Penalty

Baumgartner FR, Box-Steffensmeier JM, Campbell BW (2018) Event dependence in U.S. executions.

Inertia and the Death Penalty

Most of us go to the doctor regularly, or at least use the Internet to identify health information of questionable medical value. Either way, we have heard some variation on the phrase “one of the very best predictors of [medical event X] is a prior instance of [X].” One of the very best predictors of whether you’ll have a stroke later is whether you’ve had a stroke before. As it turns out, that same statistical relationship describes another, ahem, morbidity risk: executions. In a newly published article, a group led by University of North Carolina political scientist Frank Baumgartner shows that there is extraordinary event dependence in American execution practice. Stated a little more accessibly, the Baumgartner data shows that one of the best predictors of whether a county will execute someone in the future is how many the county killed in the past.

This finding matters, a lot; someone should be capitally punished because their crime and moral blameworthiness merits death, not because a particular county happens to have acquired professional expertise in killing people. In this very forum I wrote a short piece, based on my longer law review article, describing the concentration of American execution activity in a few “outlier” counties — counties that maintain exorbitant levels of capital punishment activity. I presented a theory of “local muscle memory,” positing that the small cohort of outlier counties kill because they’ve gotten used to killing, and the rest largely abstain because they haven’t had the practice. And I argued that the already-concentrated map of American capital punishment activity was still concentrating even more, reflecting a crude bureaucratic path dependence. Institutional stakeholders in a particular locality must invest considerable time and capital to develop the skill — the muscle memory — to produce death sentences and then convert them into executions. As a result, bureaucratic habituation was causing counties to separate into two groups: a small group of outlier counties that maintained elevated capital punishment activity, and a much larger group of abstainers. In documenting the increasing concentration of American execution practice, I relied on some of Professor Baumgartner’s data, and some of his prior work. Nonetheless, because I am not a statistician and because empirical testing of the hypothesis was somewhat beyond the scope of the project, my muscle-memory thesis did not include regressions and other advanced statistical analysis that would determine the fit between the theory and available data. Professor Baumgartner and his collaborators have largely filled that gap.

They worked from a sample of 1,422 executions spanning 1977 to 2014, from 474 counties in 34 states. I’ll leave out most of the major modeling details, but suffice it to say that the analysis was capable of controlling for four phenomena that had typically been assumed to drive execution activity: (1) county-level homicide activity; (2) racial demography; (3) poverty rates; and (4) county-level population. The fourth control is deceptively important insofar as large population centers experience more homicides and have more professionalized prosecution offices, and hence tend to produce more death sentences. (Of course, the study removed states that didn’t use the death penalty from the analysis.)

The result of the Baumgartner analysis is pretty astonishing, both because of its bottom line and, to a lesser extent, because of what it discloses about the influence of several controlled-for variables. The headline finding is that when it comes to executions, event dependence is extraordinary; over an eighteen-month interval, a county with previous executions will be five times as likely to execute a new prisoner as a county with no previous executions. Quite surprisingly, county-level homicide activity and poverty rates have no effect on how many people a county executes. There is a smaller positive correlation between executions and the county’s population of people of color, a variable sometimes called “racial threat.” That is, majority-white communities are more likely to resort to aggressive social control — including ramping up police presence and aggressive prosecutions — in situations where there is a greater fraction of minority membership. Although I am focused on event dependence, and although racial threat is just a control variable, the horror of the concept bears repeating: even controlling for criminality and poverty, predominately white communities that include larger non-white membership tend to use the death penalty more extravagantly.

The authors readily admit that a better test for event dependence might involve capital sentences, rather than executions — most defendants who are sentenced to death are never actually executed, and so the execution data (as opposed to capital sentencing data) is uniquely sensitive to certain types of shocks, including the availability of lethal injection drugs. The execution model is nonetheless powerful evidence of event dependence — and there is also recent county-level sentencing data, assembled by University of Virginia Professor Brandon Garrett, which he has in turn used in at least one articleand one book. (I used an early version of the data set in my muscle-memory article.) Using county-level death sentencing data covering 1990 to 2016, Professor Garrett, along with several co-authors, studied the degree of event dependence. Although the methodology used by Professor Garrett and his coauthors diverges somewhat from the methodology used by Professor Baumgartner and his, the findings converge. As with executions, one of the greatest predictors of whether a county will sentence people to death in the future is whether it sentenced people to death in the past. Moreover, the explanation offered by Professor Garrett et al. lines up with that offered by Professor Baumgartner — as well as with mine. Whether the term is “inertia” or “muscle memory” or “path dependence” or “self-reinforcement,” local, bureaucratic habituation is causing the vast majority of American counties to sentence to death and kill no one, and causing an extremely small number to sentence and kill repeatedly.

To understand the theory writ small, consider the role of the prosecutor. To train its prosecutors to navigate the various institutional hurdles that an execution presents, district attorneys must train their lawyers to investigate aggravating evidence, select a death-qualified jury, try a sentencing case, conduct post-conviction proceedings, obtain an execution date, and defend the judgment in crisis-phase litigation — all unique facets of a death penalty case. The human capital involved in successfully performing all of these tasks is enormous; to realize a reasonable return on that considerable investment, an office must produce a lot of capital punishment. In some ways, it’s a simple economic story of spreading high fixed costs across a more output. But once an office is trained to, well, kill, its existing human resources are bureaucratically conditioned to transmit that lethality to the next generation of attorneys, with the subsequent generation passing the torch to one that comes after it, and so forth. But the bureaucratic habituation that causes certain urban, well-endowed counties to remain active capital punishers actually causes most others to abstain. Once the institutional knowledge necessary to secure executions begins to disappear, it is unlikely to be revived in the absence of unusual political will, substantial financial resources, and caseload of death-eligible cases worthy of renewed institutional investment.

A capital punishment practice operating through muscle memory is quite concerning, because it signals profound arbitrariness. States are meting out death sentences not by systematically isolating the worst of the worst, but by isolating those in certain area codes. When people like Clarence Thomas extol the virtues of geographically differentiated punishment, they generally contemplate things like different states having different punishment schemes, or different localities expressing the collective blaming preference of an affected community. Kent Scheiddeigger, an energetic proponent of vigorous death penalty practice, responded to a famous study showing geographic disparities by snarking: “The study calls the variation by county ‘geographic disparity.’ I call it local government.” What studies like Professor Baumgartner’s show, however, is that maps of capital punishment activity are not capturing the output of good governance or particularly severe punishment preferences; they are capturing a largely arbitrary distribution of death penalty activity, suffused with path dependence.

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