Gangs in the military

Yale Law Journal

Volumn 118, Issue 4, 2009, Pages 696-742

  Eyler, Gustav ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 62749207150     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (360)

1. Gus G. Sentementes & Liz F. Kay, Baltimore Soldier Accused in Gang Shootings, BALT. SUN, Oct. 17, 2007, at Ai. Prosecutors later dropped the case against the soldier for insufficient evidence, although the Baltimore police continued to believe that he was a Blood and labeled him a "person of interest" in the ongoing investigation.
2. Gus G. Sentementes, Shooting Case Dropped: Prosecutors Lack Evidence To Keep Soldier Jailed in Oklahoma, BALT. SUN, Oct. 19, 2007, at Bi.
3. U.S. ARMY CRIMINAL INVESTIGATION COMMAND, DEP'T OF THE ARMY, SUMMARY REPORT: GANG ACTIVITY THREAT ASSESSMENT FISCAL YEAR 2007, at 5 (2007) [hereinafter CID REPORT 2007] (on file with author)
4. see also U.S. ARMY CRIMINAL I NVESTIGATION COMMAND, DEP'T OF THE ARMY, SUMMARY REPORT: GANG ACTIVITY THREAT ASSESSMENT FISCAL YEAR 2006, at 5 (2006) [hereinafter CID REPORT 2006] (on file with author) (comparing the number of suspected gang incidents in 2003 (twelve) with the number in 2006 (sixty-one)).
5. See CID REPORT 2007, supra note 2, at 9.
6. See id. at 10.
7. See NAT'L GANG INTELLIGENCE CTR., GANG-RELATED ACTIVITY IN THE U.S. ARMED FORCES INCREASING 3 (2007) [hereinafter NGIC REPORT], http://militarytimes.com/static/projects/pages/ngic-gangs.pdf.
8. Id.
9. See, e.g., Timothy Egan, Military Base Jarred by Specter of Gang Killings, N.Y. TIMES, Feb. 3, 1993, at A10
10. Josh Gerstein, Army Transfers Could Trigger a Gang War, N.Y. SUN, Mar. 16, 2006, at 3
11. Charles Sheehan, FBI Probes Military-Gang Ties, CHI. TRIB., May 2, 2006, at A3
12. Zahira Torres, FBI Monitors Soldiers New to Fort Bliss for Gang Involvement, EL PASO TIMES, Mar. 16, 2006, at 1B
13. Fox 11 News at Ten: Gangs in the Military (KTTV Fox television broadcast May 8,2006).
14. See Nick Turse, U.S. Is Recruiting Misfitsfor Army: Felons, Roasts, Gang Members Fill in the Ranks, S.F. CHRON., Oct. 1, 2006, at F6
15. see also Josh White, Army Off Target on Recruits: Percentage of High School Graduates Drops to New Low, WASH. POST, Jan. 23,2008, at A2.
16. See infra Section II.B (discussing existing anti-gang provisions and their shortcomings).
17. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 544, 122 Stat. 3, 116.
18. See Bureau of Justice Statistics, U.S. Department of Justice, Crime and Victim Statistics, http://www.ojp.gov/bjs/cvict.htm#summary (last visited Dec. 3, 2008).
19. Id.
20. See National Youth Gang Center, National Youth Gang Survey Analysis, http://www.iir.com/nygc/nygsa/default.htm (last visited Dec. 3, 2008)
21. see also NAT'L ALLIANCE OF GANG INVESTIGATORS ASS'NS & BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, 2005 NATIONAL GANG THREAT ASSESSMENT, at v-ix (2005), http://www.nagia.org/PDFs/2005-national-gang-threat-assessment.pdf [hereinafter NATIONAL GANG THREAT ASSESSMENT].
22. The National Youth Gang Center estimates that there are approximately 750,000 gang members involved in over 25,000 gangs within the United States. In many communities, law enforcement personnel have reported the threat from gangs as "[g]etting [w]orse." National Youth Gang Center, supra.
23. NATIONAL GANG THREAT ASSESSMENT, supra note 13, at vii-ix, 3-4.
24. See id. at 1.
25. See id at vi, 2-3, 5. Such cooperative arrangements are common with Mexican, Asian, and Russian organized crime but rarely extend to domestic terrorist organizations.
26. Id.
27. CID REPORT 2007, supra note 2, at 2-3
28. CID REPORT 2006, supra note 2, at 2.
29. Compare National Youth Gang Center, supra note 13 (showing that between 2003 and 2005 the number of suspected gang-related incidents nationwide rose approximately ten percent)
30. with CID REPORT 2006, supra note 2, at 5-7 (showing a fifty percent increase in reported gang-related incidents in the Army).
31. NGIC REPORT, supra note s, at 5
32. CID REPORT 2006, supra note 2, at 2.
33. CID REPORT 2007, supra note 2, at 5
34. CID REPORT 2006, supra note 2, at 4. It is important to note that the number of suspected gang-related incidents and felony investigations includes at least some occurrences in which the only military nexus was the assault of a soldier by a gang member.
35. See Telephone Interview with Christopher Grey, Chief of Pub. Affairs, U.S. Army Criminal Investigation Command (Aug. 18, 2008) [hereinafter Grey Interview] (on file with author).
36. See CID REPORT 2007, supra note 2, at 5 (stating that seventy-nine incidents were reported in 2007 and sixty incidents in 2006, compared with twenty-four in 2005)
37. CID REPORT 2006, supra note 2, at 5 (stating that nine incidents were reported in 2004, and twelve in 2003).
38. In 2006, the Army also reported a significant increase in on-post gang activity, which was rare in prior years. CID REPORT 2007, supra note 2, at 5-6 ("There was an increase in the number of gang related investigations on post with a decrease in the number of gang related investigations off post. The reason for that shift from the previous pattern could not be ascertained, but may be attributable to increased emphasis and policing by MP and CID.").
39. See id at 10 graph 5 (noting that between 2005 and 2007 fifty-nine percent of gang-related offenders identified were in the grades of E1-E4, ten percent were in the grades E5 or E6, and thirty-one percent were civilian subjects).
40. See id at 9
41. see also CID REPORT 2006, supra note 2, at 8 tbl.5 (naming the Bloods, Crips, Gangster Disciples, Georgia Boys, Mexican Mafia, MS-13, Outlaw MC Gang, Sorenos, and Street Military as active within the military in 2006).
42. See CID REPORT 2007, supra note 2, at 11-12
43. see also CID REPORT 2006, supra note 2, at 5 tbl.2, 10-11 (explaining that even though gang investigations comprise only 0.16% of the investigations pursued by CID in 2006, they tax the limited resources of criminal intelligence units).
44. NGIC REPORT, supra note 5, at 5.
45. See id. at 5-6.
46. Id.
47. Id. at 6.
48. See id. at 15-16
49. CID REPORT 2006, supra note 2, at 9-10.
50. NGIC REPORT, supra note 5, at 16.
51. See id.
52. See CID REPORT 2006, supra note 2, at 9.
53. SEE, e.g., Brief on Behalf of Appellee, United States v. Prescott, 62 M.J. 390 (C.A.A.F. 2005) (No. 05-0533), 2004 WL 3510903 (contesting defendant's petition for grant of review of a forty-two month sentence for the distribution of marijuana).
54. See NGIC REPORT, supra note 5, at 12 (detailing an incident in which military personnel stationed in Colombia transported forty-six kilograms of cocaine to El Paso, Texas for distribution by a gang).
55. See, e.g., United States v. Zimmerman, 43 M.J. 782, 785-87 (A. Ct. Crim. App. 1996)
56. NGIC REPORT, supra note 5, at 10-12 (listing multiple recent examples of military personnel stealing and smuggling weapons for gangs)
57. cf. United States v. Roth, 52 M.J. 187,187-90 (C.A.AF. 1999) (discussing defendant's conviction for stealing night-vision goggles for use by a criminal street gang).
58. See CID REPORT 2006, supra note 2, at 12
59. see also Eric M. Weiss, Robbers' Guns Came from Iraq, Officials Say, WASH. POST, July 16, 2006, at Ci (desaibing the sale of smuggled weapons to gang members).
60. See NGIC REPORT, supra note 5, at 10-11 (describing how convicted military gang members have detailed the ease with which they and other gang members stole military weapons and equipment and used them on the streets or sold them to civilian gang members)
61. see abo Gang Members in the Military, INTELLIGENCE OPERATIONS BULL. (CaI. Dep't of Justice, Sacramento, Cal.), Nov. 2005, at 2 [hereinafter Gang Members] (on file with author) (listing times in which law enforcement officials have recovered military-issued weapons and explosives-such as machine guns and grenades-from gang members while conducting searches and routine traffic stops).
62. See CID REPORT 2006, supra note 2, at 9.
63. CID REPORT 2006, supra note 2, at 2
64. see also Seamus O'Connor, Airman Charged in Soldier's Beating Death, ARMY TIMES, Dec. 17, 2007, http://www.armytimes. com/news/2007/12/airforce-gangbeating-charges-071213/.
65. CID REPORT 2006, supra note 2, at 2
66. NGIC REPORT, supra note 5, at 13.
67. See, e.g., CID REPORT 2006, supra note 2, at 12 (relating the facts of a case in which a soldier and gang member was arrested by civilian authorities for the robbery of an off-post convenience store and the murder of the store attendant).
68. See NGIC REPORT, supra note 5, at 9-10.
69. See Sheehan, supra note 7.
70. 63 M.J. 29, 30-33 (C.A.AF. 2oo6)
71. see also United States v. Quintanilla, 6o M.J. 852, 854-55 (N-M. Ct. Crim. App. 2005) (desaibing the facts of the case in graphic detail).
72. Quintanilla, 60 M.J. at 855. A particularly relevant section of the case reads, The appellant said, "Gunnery Sergeant, apprehend me, I just shot the CO and XO.". . . The appellant talked about why he shot the CO and XO, complaining that he wasn't treated well in the squadron and that he did it for his "brown brothers," or words to that effect. At one point, the appellant stood up, pulled down his coveralls, took off his undershirt, and displayed the tattoos that covered his upper body. One of the large tattoos read "Sureno," which the Government argued was a reference to Southern California gangs.
73. Id.
74. See CID REPORT 2007, supra note 2, at 9 (depicting the frequency of investigations into intra-unit offenses including drugs, aggravated assaults, thefts, and robberies)
75. CID REPORT 2006, supra note 2, at 12-14 (relating how four gang-affiliated soldiers were convicted of robbing two other soldiers and listing additional gang-related criminal acts)
76. NGIC REPORT, supra note 5, at 13 (describing crimes committed by soldiers in gangs against rival gang members). Other incidents of gang-related tension in military units include a gun fight between airmen over the playing of a rap song
77. see Supplement to Petition for Grant of Review at 3, United States v. Coward, 64 M.J. 198, (C.A.A.F. 2006) (No. 06-0696), 2006 WL 2191649, drug deals between military members
78. see Brief on Behalf of Respondent-Appellee at 2-4, United States v. Prescott, 62 M.J. 390 (C.A.A.F. 2005) (No. 05-0533), 2004 WL 3510903, and a base shooting that resulted from a basketball game between gang members
79. see Supplement to Petition for Grant of Review at 2-4, United States v. Richardson, 53 M.J. 113 (C.A.A.F. 2000) (No. 00-0087), 2000 WL 34615399. Colonel George Reed, the director of military police operations at Fort Bragg at the time of the last-mentioned incident, noted that the gang affiliations of the implicated soldiers were undetected prior to the shooting.
80. See Telephone Interview with Colonel George Reed, U.S. Army (ret.) (Jan. 10,2008) [hereinafter Reed Interview] (on file with author).
81. See CID REPORT 2007, supra note 2, at 7 (noting that Fort Bliss, Fort Bragg, Fort Campbell, Fort Sill, and Fort Stewart have all shown increases in gang reporting for the last two consecutive fiscal years).
82. See, e.g., Add Seymour Jr. & Carlos Campos, Soldier Accused of Importing Guns, ATLANTA J.CONST., Sept. 22, 2006, at 9D
83. Scarborough Country (MSNBC television broadcast Mar. 15, 2006) (transcript available at http://www.msnbc.msn.com/id/11857810/)
84. sources cited supra notes 7-8.
85. See NGIC REPORT, supra note 5, at 3.
86. See id. at 9-14.
87. Id.
88. See id. at 3
89. Reed Interview, supra note 46 (describing the many problems that military and civilian police face in following military gang activity and noting complications created by the mobility of military personnel).
90. Gang Members, supra note 37, at 2 (describing the attack and noting how the Marine used his military training against the police)
91. see also Janine DeFao, Marine Who Killed Cop Linked to Gang Activity, S.F. CHRON., Jan. 16, 2005, at A17
92. Press Release, Sheriff's Dep't, Stanislaus County, Cal., New Information About Andres Raya and His Gang Affiliation (Jan. 14, 2005), http://www.ci.ceres. ca.us/newsreleases/20050114a.html.
93. See DeFao, supra note 53.
94. See United States v. Billings, 58 M.J. 861, 862 (A. Ct. Crim. App. 2003).
95. See United States v. Roth, 52 M.J. 187, 187-90 (C.A.A.F. 1999). The defendant in Roth was a member of the West Coast Criminals. An agent from CID "testified without defense objection that the theft of night-vision goggles was a very serious offense because the goggles might 'fall into the wrong hands.' He went on to explain that the 'wrong hands' included drug traffickers and gangs."
96. Id. at 188.
97. See CBS Evening News: Are Gang Members Using Military Training? (CBS television broadcast July 28, 2007), available at http://www.cbsnews.con1/stories/2007/07/29/eveningnews/main3108597.shtml.
98. JOINT SERV. COMM. ON MILITARY JUSTICE, DEP'T OF DEF., Preamble to MANUAL FOR COURTS-MARTIAL UNITED STATES, at I-1 (2005) [hereinafter MANUAL FOR COURTSMARTIAL]
99. See also EUGENE R. FIDELL, ELIZABETH L. HILLMAN & DWIGHT H. SULLIVAN, MILITARY JUSTICE: CASES AND MATERIALS 133, 153-72, 401, 406-10 (2007) (discussing the breadth of military criminal law and providing examples of commanders' authority to enforce criminal laws).
100. See FIDELL ET AL., supra note 58, at 847-50
101. DEP'T OF THE ARMY, COMMANDER'S EQUAL OPPORTUNITY HANDBOOK app. B-8-1 (2005) [hereinafter EQUAL OPPORTUNITY HANDBOOK] (detailing the administrative options available to commanders), http://www.wood.army.mil/eop/ EO%20FILES/regspubs/TC26-6.pdf.
102. CID REPORT 2006, supra note 2, at 2-3.
103. See Rod Powers, Gang Activity in the U.S. Military, ABOUT.COM: US MILITARY, Feb. 12,2007, http://usmilitary.about.eom/od/justicelawlegislation/a/gangs.htm (attributing increased military gang membership to lowered recruitment standards)
104. cf. Press Release, Rep. Mike Thompson, House Passes Thompson's Amendment To Prohibit Gang Members in the Military (May 17, 2007), http://mikethompson.house.gov/prarticle.aspx?newsid=156 (discussing the need to stop "gang members from getting in the military in the first place").
105. See Turse, supra note 8
106. Military Recruiting 2007: Army Misses Benchmarks by Greater Margin, http://www.nationalpriorities.org/book/export/html/6017 (last visited Dec. 3, 2008) (describing the troubled history of military recruiting since 2005).
107. See, e.g., White, supra note 8; Fred Kaplan, Dumb and Dumber: The U.S. Army Lowers Recruitment Standards... Again, SLATE, Jan. 24,2008, http://www.slate.com/id/2182752 ("In order to meet recruitment targets, the Army has even had to scour the bottom of tge barrel. There used to be a regulation that no more than 2 percent of all recruits could be 'Category IV'-defined as applicants who score in the 10th to 30th percentile on the aptitude tests. In 2004, just 0.6 percent of new soldiers scored so low. In 2005, as the Army had a hard time recruiting, the cap was raised to 4 percent. And in 2007, according to the new data, the Army exceeded even that limit-4.1 percent of new recruits last year were Cat IVs.").
108. See, e.g., Turse, supra note 8 (asserting that lower recruiting standards have caused a troubling breakdown in the quality and composition of the Army).
109. Jim Garamone, Recruit Quality Remains High, AM. FORCES PRESS SERVICE, July 12, 2006, http://www.defenselinLmu/news/newsarticle.aspx?id=123 (reviewing the general quality of Army recruits).
110. See DEP'T OF THE ARMY, ARMY REGULATION 601-210, § 2-11 (2007) [hereinafter A.R. 601-210], http://www.apd.army.mil/pdffiles/r601i-210.pdf.
111. The Army does not have an exhaustive list of "serious criminal misconduct offenses," but the following crimes are generally considered to meet the standard: aggravated assault, arson, breaking and entering, bribery, burglary, carjacking, carnal knowledge of a minor, child abuse, domestic battery (especially if prosecutable under the Lautenburg Amendment), driving while intoxicated, embezzlement, forgery, graft, hate crimes, identity theft, kidnapping, manslaughter, murder, acts of moral turpitude, narcotics offenses, pandering, perjury, possession of explosives, rape, receiving stolen property, riot, robbery, sodomy, solicitation of prostitution, and terrorist threats. See Rod Powers, Army Criminal History Waivers, ABOUT.COM: U.S. MILITARY, http://usmilitary.about. com/od/armyjoin/a/criminal5.htm (last visited Dec. 3, 2008).
112. A.R. 601-210, supra note 66, S 4-2(c).
113. For the complete set of standards and procedures governing moral waivers, see U.S. ARMY RECRUITING COMMAND, DEP'T OF THE ARMY, USAREC REGULATION 601-56 (2006), http://www.usarec.army.mil/im/formpub/REC-PUBS/R601-56.pdf.
114. A.R. 601-210, supra note 66, S 4-2(e)(1)(a)(9).
115. See, e.g., SCOTT A. OSTROW, GUIDE TO JOINING THE MILITARY 16 (2d ed. 2004) ("[S]ome individuals who have made mistakes in the past get a fresh start in the military.").
116. AR. 601-210, supra note 66, § 2-n(b)(2).
117. See Ann Scott Tyson, Military Waivers for Ex-Convicts Increase, WASH. POST, Apr. 22, 2008, at A1.
118. A.R. 601-210, supra note 66, § 4-2(f).
119. Id. § 2-11(e).
120. Id. § 2-11(b).
121. Cf NGIC REPORT, supra note 5, at 15 (citing to a report from the White House Office of National Drug Control Policy that highlights the recruiters' inability to access the criminal records of certain applicants).
122. A.R. 601-210, supra note 66, § 4-2(e)(1)(a)(9).
123. See NGIC REPORT, supra note 5, at 15 ("According to US Army reporting, some recruiters are not properly trained to recognize gang affiliation and unknowingly recruit gang members . . . ."). In March 2006, the U.S. Army Recruiting Command directed reauiters to screen for gang members, and emphasized the continuing need for information and "awareness training to identify gang activity and paraphernalia."
124. See CID REPORT 2007, supra note 2, at 12.
125. See NGIC REPORT, supra note 5, at 15 ("[S]ome recruiters are not properly trained to recognize gang affiliation and unknowingly recruit gang members . . . .")
126. Turse, supra note 8 (describing how the military has not prioritized the elimination of gang members from the military)
127. Reed Interview, supra note 46 (explaining that commanders rarely emphasize the importance of detecting possible gang affiliations because most units have not faced significant threats from gang activity).
128. The Department of the Army has not released the complete details of this handbook. However, similar identifying information is located in the Army's pamphlet on extremist activity, DEP'T OF THE ARMY, DEPARTMENT OF THE ARMY PAMPHLET 600-15 (2000) [hereinafter PAM 600-15], http://www.army.mil/usapa/epubs/pdf/p600-15.pdf; in Army Regulation 600-20
129. DEP'T OF THE ARMY, ARMY REGULATION 600-20 (2008) [hereinafter AR 600-20], http://www.apd.army.mil/pdffiles/r600-20. pdf
130. and in the Commander's Equal Opportunity Handbook, EQUAL OPPORTUNITY HANDBOOK, supra note 59, app. B. 82.
131. See NGIC REPORT, supra note 5, at 17 (discussing known recruiter policies)
132. CID REPORT 2007, supra note 2, at 12 (highlighting that Army recruiters also have access to a website "that identifies common tattoos that may signal gang association," but neglecting to describe its scope or current nature).
133. These terms are not defined in PAM 600-15, A.R. 600-20, A.R. 601-210, or in any of the lesser Army publications made available to the public.
134. SEE Reed Interview, supra note 46.
135. Id.
136. SEE A.R. 601-210, supra note 66, §4-11 (defining typical serious criminal misconduct offenses). For examples of successful policing of gang trespass violations
137. see THE U.S. CONFERENCE OF MAYORS: BEST PRACTICES CTR., U.S. DEP'T OF JUSTICE, BEST PRACTICES OF COMMUNITY POLICING IN: GANG INTERVENTION & GANG VIOLENCE PREVENTION 25-27,73-74, 137-38 (2006) [hereinafter BEST PRACTICES OF COMMUNITY POLICING]. Policing these violations has produced solid results, but many have questioned their legality.
138. See, e.g., Matthew Mickle Werdegar, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STAN. L. REV. 409 (1999)
139. Stephanie Smith, Note, Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?, 67 U. CHI. L. REV. 1461 (2000).
140. See PAM 600-15, supra note 81, S 2-6.
141. The Army's anti-extremist regulations are the most detailed. See, e.g., A.R 600-20, supra note 81
142. PAM 600-15, supra note 81. The Navy's anti-extremist policy is not expansive, focusing only on illegal discrimination and the use of force or violence against government agencies.
143. See DEP'T OF THE NAVY, NAVY MILITARY PERSONNEL MANUAL 1910-160 (2008) [hereinafter NAVY MILPERSMAN]. The Air Force's provisions are similar in scope to the Army's, but not as specific in their guidance to commanders and airmen.
144. See U.S. AIR FORCE, AIR FORCE INSTRUCTION 36-2903 (2006)
145. U.S. AIR FORCE, AIR FORCE INSTRUCTION 51-903 (1998).
146. A.R. 600-20, supra note 81, S 4-12.
147. See DEP'T OF DEF., DIRECTIVE 1325.6: GUIDELINES FOR HANDLING DISSENT AND PROTEST ACTIVITIES AMONG MEMBERS OF THE ARMED FORCES (1969). For a history of Directive 1325.6
148. see Walter M. Hudson, Racial Extremism in the Army, 159 MIL. L. REV. 1, 30-35 (1999).
149. Foreword to PAM 600-15, supra note 81.
150. A.R. 600-20, supra note 81, § 4-12.
151. See id. § 4-12(b).
152. The 1995 policies do not completely eliminate the distinction between active and passive membership in an extremist organization, but they do significantly blur the dividing line. See A.R. 600-20, supra note 81, S 4-12. For a detailed discussion of anti-extremist polices pre-1995
153. see Hudson, supra note 90, at 30-35.
154. Military law experts have recently focused on the mere membership doctrine in the context of detained enemy combatants. See Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 STAN. L. REV. 1079, 1101-06, 1124-26 (presenting the views of legal experts on the mere membership doctrine's application in terrorism cases).
155. See, e.g., United States v. Dornon, ACM S31144 (F REV), 2008 WL 2259758, at *3-4 (A.F. Ct. Crim. App. May 28,2008) (discussing the relevance of the mere membership doctrine to prosecutions of service personnel for violations of anti-extremist policies).
156. See, e.g., A.R. 600-20, supra note 81, § 4-12(e) (detailing the responsibility of commanders to stem even the mere membership of soldiers in extremist organizations).
157. PAM 600-15, supra note 81, § 2-2. A separate Army publication, the Commander's Equal Opportunity Handbook, does place the term "gangs" under its extremist organization heading. The handbook defines a gang as "a group of individuals who band together, usually along racial or ethnic lines. Generally, gangs are prone to violent behavior."
158. EQUAL OPPORTUNITY HANDBOOK, supra note 59, app. B-3-1. The mention of gangs in this handbook, however, has little bearing on whether gangs should be considered covered under the terms of A.R. 600-20 and PAM 600-15. As the handbook states, the term is defined only to familiarize commanders with the concept.
159. See EQUAL OPPORTUNITY HANDBOOK, supra note 59, app. B-2-1.
160. See NGIC REPORT, supra note 5, at 20 n.84.
161. See, e.g., A.R. 600-20, supra note 81. The 2006 CID Report proves that the Army was colleaing data on the threat from criminal gangs as early as 2003.
162. CID REPORT 2006, supra note 2, at 6.
163. See DEP'T OF THE NAVY, NAVY MILPERSMAN 1910-160 (2005)
164. U.S. AIR FORCE, AIR FORCE INSTRUCTION 36-2903 (2006)
165. U.S. AIRFORCE, AIRFORCE INSTRUCTION 51-903 (1998).
166. A.R. 600-20, supra note 81, § 4-12(c).
167. See, e.g., John P. Jurden, Spit and Polbh: A Critique of Military Off-Duty Personal Appearance Standards, 184 MIL. L. REV. 1, 39-50 (2005)
168. cf. Donald N. Zillman & Edward J. Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 397 (1976) (questioning the application of different constitutional standards to the military).
169. Jurden, supra note 103, at 40.
170. See, e.g., Goldman v. Weinberger, 475 U.S. 503, 510 (1986) (holding that issuing a letter of reprimand for failure to obey a lawful order forbidding the wearing of a yarmulke while in uniform did not violate the First Amendment); Brown v. Glines, 444 U.S. 348, 354-58 (1980) (holding that an Air Force regulation prohibiting distribution of petitions without permission did not violate the First Amendment).
171. SEE Jurden, supra note 103, at 41-50.
172. Brown, 444 U.S. at 355.
173. SEE Hudson, supra note 90, at 71. The military might still be able to defend a speech-restrictive, anti-extremist order that was less than reasonably necessary to protect a substantial government interest, but the courts recently have shown less deference to extremist-related command decisions.
174. See, e.g., United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) (holding that the government did not adequately justify a conviction for wrongfully advocating antigovernment sentiments and encouraging participation in extremist organizations to the prejudice of good order and discipline).
175. PAM 600-15, supra note 81, § 3-1.
176. See id. § 3-2(c).
177. Id. § 3-2(a).
178. Id. § 3-2(b).
179. Id. § 3-2(f)(2). The Army does encourage commanders to "[u]se Equal Opportunity Advisers (EOAs) to monitor available information on extremist groups, aaivities, and philosophies and train commanders,"
180. id § 3-2(c)(8), but it is unclear what measure of clarity EOAs may provide, and it is likely that commanders will still hesitate to file a complaint.
181. Id. app. B.
182. Id.
183. Id. S 3-2(e) (emphasis added).
184. NGIC REPORT, supra note 5, at 16.
185. See id. at 15-16
186. CID REPORT 2007, supra note 2, at 11 (detailing the number and type of offenses in which civilian subjects, a category which includes military dependents, were involved)
187. see abo United States v. Miller, 53 M.J. 504, 507 (A.F. Ct. Crim. App. 2000) (describing the affiliation of the accused's son with a local gang).
188. See NGIC REPORT, supra note 5, at 16 (explaining that "many military spokespersons have dismissed [dependent gang members] as 'wannabe gang members'").
189. 18 U.S.C. § 1385 (2000).
190. See Gary Felicetti & John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage Is Done, 175 MIL. L. REV. 86, 100-13 (2003).
191. 18 U.S.C. § 1385.
192. In discussing the Posse Comitatus Act, Christopher Grey, Chief of Public Affairs for the Army CID, stressed that the military nexus requirement is satisfied fairly easily in most investigations. A aime need only implicate military personnel, a military dependent, or a direct threat to an installation to permit military police involvement. See Grey Interview, supra note 20. However, Mr. Grey also confirmed that the Army CID, as advised by the Army JAG Corps, holds fast to the division between military and civilian spheres when a clear military nexus is not apparent.
193. See id.
194. Felicetti & Luce, supra note 121, at 161.
195. U.S. DEP'T OF DEFENSE, DIRECTIVE NO. 5525.5, enclosure 3 (1986). Congress moved most dramatically to reduce the restrictiveness of the Posse Comitatus Act through the Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, 95 Stat. 1099 (relevant portions codified at 10 U.S.C. §§ 371-378 (2006)), and the Homeland Security Act of 2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135 (codified primarily in scattered sections of 6 U.S.C. and 18 U.S.C). In particular, the HSA states that the Posse Comitatus Act does not bar the President form "us[ing] ... the Armed Forces for a range of domestic purposes, including law enforcement functions, when... the President determines that the use of the Armed Forces is required to fulfill the President's obligations under the Constitution."
196. Id. § 886
197. (codified at 6 U.S.C. § 466(a)(4)). For a discussion of how the Department of Defense responded to these efforts,
198. see Felicetti & Luce, supra note 121, at 149-66;
199. and John R. Longley III, Note, Military Purpose Act: An Alternative to the Posse Comitatus Act-Accomplishing Congress's Intent with Clear Statutory Language, 49 ARIZ. L. REV. 717, 737-39 (2007).
200. For example, military police normally would not assist in a civilian effort to track gangs operating near a base without a clear military nexus, even though it is well established that civilian gang activity near a base often spills over into the installation. See Reed Interview, supra note 46.
201. Id. (describing how the Posse Comitatus Act hindered the ability of Fort Bragg military police to cooperate completely with state and local law enforcement agencies in Fayetteville, North Carolina). There is some indication that the military is beginning to work more with local law enforcement authorities on gang matters. In fact, the Army Criminal Investigation Command has noted that its Gang Activity Threat Assessment "required each CID office... to make contact with Military Police, DoD Police and local law enforcement agencies within their area of responsibility to collect information about local gang activity." CID REPORT 2007, supra note 2, at 12; cf. FIDELL ET AL., supra note 58, at 304-17 (outlining the limitations of military jurisdiction over civilians independent of the Posse Comitatus Act).
202. See Grey Interview, supra note 20.
203. See Telephone Interview with Tina Parales, Branch Chief, Gang Violence Suppression Branch, Cal. Dep't of Justice (Aug. 19, 2008)
204. [hereinafter Farales Interview] (on file with author);
205. Grey Interview, supra note 20 (noting that the Army CID does not have access to the FBI fingerprint database or the Combined DNA Information System).
206. NGIC REPORT, supra note 5, at 17 n.66.
207. CID REPORT 2007, supra note 2, at 12.
208. Id.
209. See, e.g., id. (failing to comment on the full extent of the NGIC Report, particularly the sections on intergang violence, crimes against law enforcement, and service member dependents).
210. A.R. 600-20, supra note 81, § 4-12(e).
211. Id.
212. PAM 600-15, supra note 81, § 7.
213. EQUAL OPPORTUNITY HANDBOOK, supra note 59, app. F-1-1.
214. Id.
215. See XVIII AIRBORNE CORPS & FT. BRAGG PROVOST MARSHAL OFFICE, DEP'T OF THE ARMY, COMMANDER'S HANDBOOK: GANGS AND EXTREMIST GROUPS (3d ed. 1999).
216. 10 U.S.C. § 815 (2000).
217. See id. § 815(b)(2);
218. see also DAVID A SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE § 3-6 (6th ed. 2004).
219. SCHLUETER, supra note 141, § 3-3(C).
220. See 10 U.S.C. § 815(d).
221. Part of the military's hesitation to authorize nonjudicial punishment for gang or extremist members may result from the existence of the mere membership doctrine. See United States v. Zimmerman, 43 M.J. 782, 785-87 (A. Ct. Crim. App. 1996) (describing the contours of the mere membership doctrine);
222. supra notes 92-94 and accompanying text. As the distinction between active and passive membership often requires adjudication, quick application of nonjudicial punishment may not always be prudent.
223. See Reed Interview, supra note 46 (explaining that commanders often prefer to initiate removal proceedings following a warning, rather than to expend time and resources in a rehabilitative process).
224. See id.
225. See DEP'T OF THE ARMY, ARMY REGULATION 635-200, § 1-1 (a) (2005) [hereinafter A.R. 635-200], http://www.apd.army.mil/pdffiles/r635-200.pdf. While administrative discharges may be measures of last resort, the current trend is to use them rather than a court-martial.
226. See SCHLUETER, supra note 141, § 1-7.
227. A.R. 635-200, supra note 147, § 1-15- More specifically, the regulation notes that commanders should consider the following factors when deciding to retain or separate an individual: (1) The seriousness of the events or conditions that form the basis for initiation of separation proceedings. Also consider the effect of the soldier's continued retention on military discipline, good order, and morale. (2) The likelihood that the events or conditions that led to separation proceedings will continue or recur. (3) The likelihood that the soldier will be a disruptive or undesirable influence in present or future duty assignments. (4) The soldier's ability to perform duties effectively now and in the future, including potential for advancement or leadership. (5) The soldier's rehabilitative potential. (6) The soldier's entire military record....
228. Id.
229. See supra Subsection II.B.2.
230. A.R. 635-200, supra note 147, § 7-17(b)(3).
231. Id. § 7-17(b) (4).
232. Id. § 13-2. Soldiers must meet other criteria as well.
233. See id.
234. Id. §§ 13-4 to 13-5.
235. See, e.g., United States v. Dornon, ACM S31144, 2008 WL 2259758, at *3-4 (A.F. Ct. Crim. App. May 28, 2008) (noting that Air Force Instruction 51-903, the mirror provision to A.R. 600-20 concerning dissident and protest activities, requires more than a showing of mere membership in an
236. See supra Subsection II.B.2.
237. See Telephone Interview with Angela Spidell, Information Release Specialist, U.S. Army Human Res. Command (Aug. 21, 2008) (on file with author) (noting that the Army does not compile data on the number of soldiers dismissed for gang affiliation and does not share individual discharge information with civilian authorities unless they have filed a special request).
238. See Gang Members, supra note 37, at 2.
239. For a list of what the Army considers serious aimes, see supra note 67.
240. Indeed, the prejudicial nature of gang evidence has been hotly contested in military appeals. See Supplement to Petition for Grant of Review at 13, United States v. Richardson, 53 M.J. 113 (C.A.A.F. 2000) (No. 00-0087), 2000 WL 34615399 ("The limited probative value of the 'gang evidence' is substantially outweighed by the danger of unfair prejudice. Given the criminal misconduct and violence associated with gangs, mention of gang affiliation is extremely prejudicial."). And civilian courts have noted the danger of admitting such evidence.
241. See, e.g., United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996) ("[W]e have also long recognized the substantial risk of unfair prejudice attached to gang affiliation evidence, noting such evidence 'is likely to be damaging to a defendant in the eyes of the jury' and that gangs suffer from 'poor public relations.'" (citations omitted)).
242. 10 U.S.C. § 934 (2000).
243. Id.
244. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶[ 60.c.(i), at IV-95.
245. Id. ¶ 60.c.(2)(a), at IV-96.
246. Scales v. United States, 367 U.S. 203, 229 (1961) (alteration in original) (citations omitted) (internal quotation marks omitted).
247. See SCHLUETER, supra note 141, § 2-6(A).
248. MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 6o.c.(2)(a), at IV-96.
249. See, e.g., United States v. Billings, 58 M.J. 861 (A Ct. Crim. App. 2003),
250. affd, 61 M.J. 163 (C.A.A.F. 2005);
251. United States v. Quintanilla, 60 M.J. 852, 854-56 (N-M. Ct. Crim. App. 2005);
252. United States v. Khamsouk, 57 M.J. 282, 283 (C.A.A.F. 2002).
253. The defendant in Billings, for example, was the leader of a local chapter of Gangster Disciples who had planned and ordered the commission of numerous crimes.
254. See 58 M.J. at 861-64.
255. See United States v. Dornon, ACM S31144 (F REV), 2008 WL 2259758, at *2 (A.F. Ct. Crim. App. May 28, 2008). The court in Dornon stated that "formal membership or participation in an organization" is not required "for a service member to be found guilty of violating paragraph 5 of AFI 51-903," the Air Force regulation proscribing membership in an extremist organization.
256. Id. The court explained that "[i]t is the participation in certain activities associated with these organizations, that are undertaken in furtherance of the objectives of those organizations which are prohibited, regardless of ones membership status in the organization."
257. Id. Admittedly, the court was not directly discussing gang membership, but the reasoning seems applicable to all Article 134, Clause 1 claims.
258. The "clear danger" test is part of a more comprehensive formula for determining whether a servicemember's speech or association is protected by the First Amendment. See infra text accompanying note 176.
259. See, e.g., Parker v. Levy, 417 U.S. 733, 761 (1974) (finding it a violation of Article 134 of the UCMJ for an Army doctor to "publicly urg[e] enlisted personnel to refuse to obey orders");
260. United States v. Priest, 45 C.M.R. 338, 344-46 (C.M.A. 1972);
261. United States v. Daniels, 19 C.M.A. 529, 534-35 (C.M.A 1970) (holding that, although a request for mast would generally be lawful, encouraging other soldiers to request mast and refuse to fight in Vietnam was punishable under Article 134).
262. MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 60.c.(3), at IV-96.
263. An example of a winning prosecution in a gang-related case for service-discrediting conduct may be found in Billings. 58 M.J. at 866. There, the defendant knowingly "led and recruited active duty soldiers and local civilians... into an organization that settled disputes through murder and assault and raised money through armed robbery."
264. Id. The court found it "beyond dispute" that these actions "injured the reputation of the United States Army."
265. Id.
266. 66 M.J. 442 (C.A.A.F. 2008).
267. Id. at 448 (citations omitted) (internal quotation marks omitted).
268. The court in Wilcox noted that the stringency of this test was necessary because "[i]f such a connection were not required, the entire universe of servicemember opinions, ideas, and speech would be held to the subjeaive standard of what some member of the public, or even many members of the public, would find offensive. And to use this standard to impose criminal sanctions under Article 134, UCMJ, would surely be both vague and overbroad."
269. Id. at 449.
270. Id. Government counsel had believed that the Clause 2 offense was proven because "the accused, while holding himself out as a member of the United States Army ... recruited others into activities involving racial intolerance" and because he violated A.R. 600-20.
271. Id at 446 (citations omitted) (internal quotation marks omitted).
272. 10 U.S.C. § 934 (2000);
273. MANUAL FOR COURTS-MARTIAL, supra note 58, ¶¶ 60.c.(4)(a)-(c), at IV-96 to IV-97.
274. United States v. Ivey, 55 M.J. 251, 252 (C.A.A.F. 2001).
275. 18 U.S.C. §§ 1961-1968 (2000).
276. Id. § 1961.
277. Id. § 1962.
278. Id. § 1963.
279. In 2007, for example, a federal jury in Maryland convicted fifteen members of the MS-13 gang of RICO offenses. See Press Release, U.S. Att'y for the Dist. of Md., Dep't of Justice, MS-13 Leader Sentenced to Life in Prison (Sept. 24, 2007), available at http://www.usdoj.gov/usao/md/Public- Affairs/press-releases/presso7/SecondMS-13LeaderSentencedtoLifeinPrison.html;
280. See also Allison Klein, Fighting MS-13, Mafia Style, WASH. POST, Aug. 28, 2005, at C1 (discussing the MS-13 indictment).
281. This conclusion is based on a search of available court opinions and party briefs in military criminal cases.
282. Combating Gang Violence in America: Examining Effective Federal, State, and Local Law Enforcement Strategies: Hearing Before S. Comm. on the Judiciary, 108th Cong. 107 (2003) (statement of Wesley McBride, President, California Gang Investigators Association).
283. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 60.c.(4)(c)(ii), at IV-96 to IV-97.
284. Id.
285. The National Youth Gang Center has compiled a detailed database of all gang-related legislation in the United States. See National Youth Gang Center, Compilation of Gang-Related Legislation in the United States, http://www.iir.com/nygc/gang-legis/default.htm (last visited Dec. 3, 2008).
286. CAL. PENAL CODE § 182.5 (West 2008) ("Notwithstanding Subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang ... with knowledge that its members engage in or have engaged in a pattern of aiminal gang activity ... and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished....");
287. id. § 186.22(a) ("Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished....").
288. Id. § 186.26(a)-(c).
289. Id. § 594;
290. CAL. EVID. CODE § 1410.5 (West 2008).
291. CAL. PENAL CODE §§ 186.30-33.
292. MD. CODE ANN., CRIM. LAW §§ 9-801, 9-804 (LexisNexis 2007).
293. Id.;
294. see abo Ruben Castaneda, Bill Seeks To Expand Prosecution of Gangs, WASH. POST, Feb. 11, 2007, at SM5. The Maryland legislature defined "gang" as any group of three or more persons, required only two crimes of violence or felonies to make a "pattern of criminal activity," and assigned a possible ten-year prison sentence to the crime.
295. See MD. CODE ANN., CRIM. LAW §§ 9-801, 9-804.
296. See, e.g., Castaneda, supra note 195.
297. 10 U.S.C. § 881 (2000). In particular, this provision reads, "Any person subject to this chapter who conspires with another person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct." Id.
298. MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 5-e., at IV-6.
299. See, e.g., United States v. Billings, 58 M.J. 861 (A Ct. Crim. App. 2003),
300. aff'd, 61 M.J. 163 (CAAF. 2005).
301. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶¶ s-b.-.c., at IV-5 to IV-6 (oudining the elements of a conspiracy charge under the UCMJ).
302. See Chesney & Goldsmith, supra note 95, at 1104-06 (discussing the expansive application of the conspiracy charge in the case of Jose Padilla).
303. 57 M.J. 282 (C.A.A.F. 2002).
304. Id. at 283, 295.
305. United States v. Morgan, 65 M.J. 616, 620 (N-M. Ct. Crim. App. 2007) (citation omitted) (setting forth the test for an Article 107 violation).
306. Id.
307. See, e.g., United States v. Wilcox, 66 M.J. 442, 444 (C.A.A.F. 2008) (charging a paratrooper for violating Article 107 via postings on a webpage).
308. 10 U.S.C. § 916 (2000). The full elements of riot are as follows: (a) That the accused was a member of an assembly of three or more persons; (b) That the accused and at least two other members of this group mutually intended to assist one another against anyone who might oppose them in doing an act for some private purpose; (c) That the group or some of its members, in furtherance of such purpose, unlawfully committed a tumultuous disturbance of the peace in a violent or turbulent manner; and (d) That these acts terrorized the public in general in that they caused or were intended to cause public alarm or terror.
309. MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 41-b.(1), at IV-61.
310. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 41.c.(2), at IV-61.
311. Id. ¶ 42, at IV-62;
312. see also United States v. Isaacs, No. NMCCA 9901168, 2003 WL 21785753, at *1 (N-M. Ct. Crim. App. July 30, 2003) (linking hazing to Article 117).
313. Cases that involve Article 116 include United States v. Threefingers, No. NMCM 99 01714, 2000 WL 1455305, at *1 (N-M. Ct. Crim. App. Aug. 29, 2000),
314. and United States v. Rush, 51 M.J. 605, 606 (A. Ct. Crim. App. 1999).
315. Article 117 is featured in United States v. Meo, 57 M.J. 744 (C.G. Ct. Crim. App. 2002),
316. and United States v. Adams, 49 M.J. 182 (C.A.A.F. 1998).
317. See, e.g., Wilcox, 66 M.J. at 444 (sentencing a soldier to eight months in prison for violating Articles 92, 107, and 134);
318. United States v. Dornon, ACM S31144 (F REV), 2008 WL 2259758, at *2 (A.F. Ct. Crim. App. May 28, 2008) (affirming a sentence of eight months and twenty days for violating Articles 92, 112a (drug possession), and 134);
319. United States v. Chavez, No. NMCCA 200000198, 2004 WL 433857, at *1 (N-M. Ct. Crim. App. Mar. 5, 2004) (sentencing a sailor to restriction for forty-five days for "using provoking words and gestures, and aggravated assault, in violation of Articles 117 and 128");
320. United States v. Meo, 57 M.J. 744 (C.G. Ct. Crim. App. 2002) (assigning defendant a sentence of less than 120 days for violating Articles 86, 91, 92, 111, 117, and 134).
321. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 544, 122 Stat. 3, 116.
322. See Press Release, The White House, President Bush Signs H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008 into Law (Jan. 28, 2008), http://www.whitehouse.gov/news/releases/2008/01/20080128-10.html.
323. 153 CONG. REC. H5246-47 (daily ed. May 16, 2007) (statement of Rep. Thompson).
324. CID REPORT 2007, supra note 2, at 25.
325. id.
326. These crimes include a "[f]ederal felony involving a controlled substance ... for which the maximum penalty is not less than 5 years," a "[f]ederal felony crime of violence that has as an element the use or attempted use of physical force against the person of another," and a "conspiracy to commit [one of the two previously listed offenses]." 18 U.S.C. § 521(c) (2000).
327. Id. § 521(a).
328. Id. § 521(d).
329. For a comprehensive review of the existing federal and state definitions of "gang," "gang crime," and "gang member," see NAT'L GANG CTR., U.S. DEP'T OF JUSTICE, BRIEF REVIEW OF FEDERAL AND STATE DEFINITIONS OF THE TERMS "GANG, " "GANG CRIME," AND "GANG MEMBER" (2008), http://www.nationalgangcenter. gov/documents/definitions.pdf.
330. See XVIII AIRBORNE CORPS & FT. BRAGG PROVOST MARSHAL OFFICE, supra note 139, apps. H-M.
331. See supra note 75 and accompanying text.
332. See id. (noting that the current recruitment regulations do not require information sharing between military recruiters and federal agencies).
333. See supra Section III.A
334. See A.R. 600-20, supra note 81, § 4-12.
335. See PAM 600-15, supra note 81, §§ 2-4, 3-1, 3-2.
336. The military could compile this appendix with greater ease than one might assume. Organizations like the Fort Bragg Provost Marshal Office have essentially completed the task. See XVIII AIRBORNE CORPS & FT. BRAGG PROVOST MARSHAL OFFICE, supra note 139, apps. H-M;
337. Grey Interview, supra note 20 (noting that the Army CID has organized a comprehensive handbook on gang identifiers, but that it is not shared with commanders or recruiters).
338. See supra notes 103-106 and accompanying text (describing the constitutional problems involved with the existing anti-extremist regulations).
339. See Hudson, supra note 90, at 75-86.
340. See id. at 76-77.
341. Id.
342. Id.
343. See CAL. PENAL CODE §§ 186.22, 186.26 (West 2000). A number of other states have similar provisions in their criminal codes.
344. See Jesse Christopher Cheng, Note, Gangs in Public Schoob: A Survey of State Legblation, 2003 BYUEDUC. & L.J. 285.
345. BEST PRACTICES OF COMMUNITY POLICING, supra note 86, at 21.
346. See id.
347. For a description of the obstacles to anti-gang enforcement caused by the Posse Comitatus Act, see supra notes 120-127 and accompanying text.
348. See id.
349. For a more complete discussion of this problem, see supra notes 156-157 and accompanying text.
350. 10 U.S.C. § 892 (2000). A general order is an order generally applicable to an armed force and properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those issued by an officer having general court-martial jurisdiction. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 16.c.(1)(a), at IV-23.
351. For a discussion of the educational value of criminal charges, see Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583 (2005).
352. See supra notes 194-196 and accompanying text.
353. There is some question as to how a sentence enhancement provision for gang-related UCMJ violations would apply to prosecutions under Article 92, which addresses failure to obey orders or regulations. It would be odd to seek a sentence enhancement for violating a regulation against gang membership on the ground that the violation was committed "in association" with a gang. One way to avoid this might be to exclude violations of Article 92 from the purview of the sentence enhancement provision and amend the punishment standards of Article 92 to account for the increased danger posed by gangs. For instance, where there are currently three punishment standards for violations of Article 92-(1) violation of lawful general order or regulation (maximum two years); (2) violation of other lawful order (maximum six months); and (3) dereliction of duties (maximum six months)-the military could add a fourth that more severely penalized violations of regulations pertaining to gangs or extremist organizations. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶ 16.e.(1)-(3), at IV-24 to IV-25.
354. See supra note 211 and accompanying text.
355. In addition to the twenty-five states that have enhanced penalties for gang-related criminal acts, twenty-two states have public nuisance laws that count gang activity among the factors in determining a nuisance. See National Youth Gang Center, Highlights of Gang-Related Legislation, http://www.iir.com/ nygc/gang-legis/highlights-gang-related-legislation.htm (last visited Dec. 3, 2008).
356. CAL. PENAL CODE § 186.22 (West 2000).
357. See National Youth Gang Center, Enhanced Penalties-Sentencing, http://www.iir.com/nygc/gang-legis/enhanced-penalties.htm (last visited Dec. 3, 2008).
358. For further arguments in favor of gang sentencing enhancement provisions, see Gary R. Brown, Less Bark, More Bite: Fixing the Criminal Street Gang Enhancement, 16 FED. SENT'G REP. 148 (2003).
359. See SCHLUETER, supra note 141, § 16-2(E) (discussing the current escalator provisions in detail). Another nontrivial factor favoring adoption of a sentence enhancement provision for gang membership or activity is the preemption of similar state provisions by military sentencing requirements. This prevents even military prosecutors in the states sponsoring such enhancement provisions from applying them through Article 134, Clause 3.
360. See MANUAL FOR COURTS-MARTIAL, supra note 58, ¶¶ 60.c.(4)(c)(ii)-(5)(a), at IV-97 (explaining the limitations of the Federal Assimilative Crimes Act and Article 134).