Comeau On Gang-Violence Problem

Over the last several years the Bermuda Government, the Official Opposition and members of the general public have suggested various ways to deal with Bermuda’s gang violence problem.

Some of those suggestions may be very helpful and some may be a complete waste of time, but we are unlikely to know what is best for Bermuda until we first specifically identify the social, geographic and economic factors that make Bermuda’s gang problem unique and then identify the policy considerations that flow from those factors. Only then can we develop a Bermuda Policy that has the best chance of reducing the effects of our unique gang violence problem.

So let’s look at the Factors that make Bermuda’s Gang Problem Unique

In many ways Bermuda’s gang violence problem is the same as that of many other countries—young men are shooting and killing each other in a drug and turf war. But the social, geographic and economic context in which that war is being fought is very different in Bermuda than in most other countries, and those differences are not only what make Bermuda’s gang violence problem unique but, as we will see, they are also what make the need for a Bermuda-specific set of programs and legislative initiatives all the more necessary.

So let’s look at these three areas to identify what is different in Bermuda than in many other countries, particularly large countries:

Social Factors—there are two

• A large percentage of Bermudians are related to someone in a gang or have a close personal friend who is related to someone in a gang;
• Bermuda’s racial history of discriminatory laws and all-white juries has left a lingering distrust in the black community such that any criminal law initiatives pertaining predominantly to young black men will likely be viewed with suspicion;

Sole Geographic Factor

• Bermuda is geographically much smaller than most other countries; and

Sole Economic Factor

• Bermuda’s principal source of revenue—international business—is controlled by individuals who are not citizens of Bermuda and generally have weaker ties to this country than if they had been born and raised here.

In and by themselves, these factors may not look like they are that important, but once we examine the policy implications that flow from these factors, everything becomes clearer— in particular, what legislative initiatives will most effectively reduce gang violence in Bermuda quickly and on a relatively long-lasting basis.

So let’s now look at the Policy Implications that Flow from the Unique Factors

1. Social Factors

(i) What Policy implications flow from the fact that a large percentage of Bermudians are related to someone in a gang or have a close personal friend who is related to someone in a gang.

(a) Jury convictions are more difficult to obtain. This has always been a problem for Bermuda. Our small population means that it is very common for members of a jury to personally know the accused or a member of his family through work, church, school or social interaction. Although the easy solution to this problem might appear to be the elimination of jury trials, such solution is unlikely to happen anytime soon because the Bermuda Constitution guarantees a defendant’s right to trial by jury.

But that does not mean there is nothing we can do to avoid the uncertainty of jury trials. In fact, an even better solution would be to avoid the uncertainty of any kind of trial, whether before a jury or a judge acting alone. This can be achieved by enacting constitutionally-enforceable “criminal organization” legislation (which I will describe more fully in a few moments) that increases the negotiating power of the Crown to obtain guilty pleas and provides strong incentives for defendants to plea bargain.

The second policy consideration that flows from everyone knowing everyone is that it is harder to get witnesses to come forward. As with juries, so with witnesses. Consequently, while we may get some witnesses to come forward, it is unrealistic to base our anti-gang violence policies on the expectation of wide and uncompromised cooperation from the general public. That level of cooperation simply isn’t going to happen.

Instead, we should leverage the use of witness evidence when it is available by enacting “criminal organization” legislation that enables the use of such evidence to not only help convict the accused but to also help bring down top gang members. “Criminal organization” legislation provides strong incentives for defendants to plead guilty and receive reduced sentences in exchange for testimony leading to the conviction of top gang leaders that are responsible for the gang violence.

The third policy consideration is that it is critical that gang violence legislation make a distinction between gang members who commit crimes and gang members who are only on the periphery and have not committed any crimes. Since so many Bermudians are related to or know someone who is a gang member or have friends who are related to gang members, they will be extremely sensitive to the need for fair treatment of those merely on the periphery, and any “criminal organization” or other gang violence policy that fails to make the distinction between gang members on the periphery and gang members committing serious crimes risks losing the cooperation of the community, without which, efforts by police to control gang violence will be severely compromised.
(ii) Let’s now look at the Policy implications that flow from Bermuda’s racial history

Because Bermuda’s present gang wars are being fought almost exclusively between black men, any policy or legislative initiative to reduce gang violence will, in practise, almost exclusively pertain to black men. The problem is not that law-abiding black Bermudians do not want those responsible for the violence to be dealt with as severely as necessary to end the violence as quickly as possible. The problem is that they are all too aware of Bermuda’s discriminatory racial past, the social dysfunction that today still lingers from that past, and the at-risk children and young black men who see few or no lifestyle alternatives to the gang culture, to a large degree because of that past.

In other words, beneath the problem of gang violence in Bermuda lies a racial history that wasn’t fair. And because of the sensitivities relating to that fact, it is imperative that any Bermuda Policy dealing with gang violence be constructed and implemented with the principle of fairness as its most essential element.

But Bermuda also has a pressing need to dramatically reduce gang violence as quickly as possible, which generally means being tough on gang members, most of whom are black.

So how do we construct a Bermuda Policy that meets these two competing needs—to be as fair as possible while being as tough as possible?

The answer becomes clearer when we consider which gang members we should be extremely fair with and which members we should be extremely tough with.

Clearly fairness is not a thorny issue when dealing with (i) those gang members who are doing the shooting and killing and (ii) those top gang leaders who are ordering other gang members to commit these and other crimes. The black and white communities both recognize that these criminals threaten the physical, social and economic wellbeing of everyone in Bermuda, and there is little sympathy for these men when they are arrested, tried, convicted and given long prison sentences. In other words, while we need to be fair when we try these men for their serious crimes, we need to be tough when we sentence them.

But how do we deal with lower level gang members—those who are providing minor logistical support to gang criminals and those who are merely on the periphery committing no crimes? That is where utmost fairness is of greatest importance.

An obvious remedy is to develop and implement policies that give these young men some alternative lifestyle choices. But it makes little sense to offer an alternative lifestyle to these men without also making gang membership and gang crime less attractive. These men are making relative choices. A Bermuda Policy that includes a deterrent to a criminal gang lifestyle will, by doing so, make alternative lifestyles more attractive, which gives these social programs, and the men they are directed at helping, a better chance of success.

All of this leads us to the realization that we need to be really tough on the bad gang members and really fair with the low level gang members, while providing a deterrent to increased gang involvement.

For this reason it is advantageous to structure the Bermuda Policy so that it makes multi-level distinctions in gang participation based on the seriousness of the crime committed and the level of gang involvement. Such a multi-faceted structure will allow us to be tough where we need to be tough and fair where we need to be fair.

2. Let’s now look at the policy implications that flow from the fact that Bermuda is geographically much smaller than most other countries.

First, a standard witness protection program will not work in Bermuda—the island is geographically too small. The simple fact is that you can’t relocate someone to Somerset for safety—gang members will find them in days.

This means that the only viable witness protection program for innocent members of the general public is one that entails relocating the witness to another country—in other words, banishment of the witness from Bermuda.

Such a program not only entails a high financial cost to the Bermuda government but also entails a high personal cost to the witness—long term or permanent separation from their family and friends.

That means that Bermuda will not have a viable witness protection program to encourage innocent witnesses to come forward to assist with the arrest and prosecution of gang criminals.

When this fact is coupled with the fact that a high percentage of Bermudians are related to a gang member or have a close friend who is related to a gang member, it strongly suggests that an appropriate gang violence policy should not have each individual prosecution of a gang criminal dependent upon innocent members of the public coming forward with information because that level of public support simply isn’t going to happen.

Does that mean that we shouldn’t encourage witnesses to come forward? Of course not. We need this help, and without it we are unlikely ever to dramatically reduce gang violence in this country.

But when a citizen does come forward with information to help the police prosecute a gang member, we need to have legislation in place that helps prosecutors leverage that evidence to also prosecute other gang members, particularly gang leaders who control criminal gang activity.

We may not be able to get a large percentage of the public to come forward with vital information, but when a courageous person does come forward, we must leverage that opportunity to the fullest, and by doing so we can dramatically reduce gang violence in Bermuda.

The second geographic policy implication—A non-standard witness protection program—one for gang criminals who turn state’s evidence—should work extremely well in Bermuda.

While banishment is a real deterrent for innocent witnesses from the general public to come forward, it is much less of a problem (and arguably a benefit) if the witness is a gang member who is turning state’s evidence (i.e., giving testimony to help convict gang leaders who control gang violence in Bermuda).

The success of such a program is dependent on two factors: (i) Bermudians (including criminals) continuing to have the right of abode in Britain and Europe; and (ii) the implementation of constitutionally-enforceable legislation that increases prison sentences for felonies that are committed by gang members thereby giving prosecutors both the flexibility and the leverage to negotiate with suspects so that they will turn state’s evidence against other gang members, particularly gang leaders who control criminal gang activity.

By increasing the flexibility and strength of prosecutors’ bargaining position we can potentially leverage every prosecution of a criminal gang member into the prosecution of many more criminal gang members—often for much more serious crimes— and thereby dramatically reduce gang violence in Bermuda.

The third geographic policy implication—Unlike persons living in the UK, USA, Canada and most other larger countries, every resident in Bermuda lives within virtually one mile of where gang shootings have occurred over the last three years.

And because of the proximity to our homes, schools and places of work, these shootings pose a much greater threat of physical harm to each and every resident than do the gang shootings in larger countries where the gang violence is contained in pockets, generally in inner-city poor neighbourhoods.

Our physical proximity to the violence makes it is in everybody’s best interest to enact the most effective “criminal organization” legislation as quickly as possible.

3. Economic Factor–Policy implications that flow from the fact that Bermuda’s principal source of revenue—international business—is controlled by individuals who are not citizens of Bermuda and generally have weaker ties to this country than if they had been born and raised here.

Unlike most other countries, Bermuda’s largest businesses—our International Companies, which collectively generate more than 80% of Bermuda’s direct and indirect income—are not controlled by citizens born and raised here, but rather by foreigners who have a significantly weaker personal connection to this country.

As a result, gang violence poses a much greater threat to Bermuda than it does to large countries because they don’t risk losing a large chunk of their economy if they fail to dramatically reduce gang violence immediately. We do.

That is why enacting the most effective “criminal organization” legislation immediately is imperative to the safety and economic wellbeing of everyone in Bermuda.

And it is important to realize that the most effective gang violence legislation must not only bring about a quick reduction in gang violence, it must do so on a lasting basis. Unfortunately, while increasing the number of convictions of gang criminals, particularly gang leaders, is important and necessary, it is unlikely to be enough.

That’s because gangs are structured on a power-vacuum basis—as soon as you remove a person from the structure (such as removing one of the leaders) he will be immediately replaced by another person attracted to the power, money and prestige of that position.

For this reason, simply arresting a gang member or members, particularly for a short incarceration periods, will do little to disrupt long-term gang activity and gang violence—it may look good for a short period of time because the police department’s arrest record will improve, but it will do little to reduce the gang shootings and murders that are plaguing Bermuda.

The most effective method of reducing gang violence is to enact legislation that will make the gangs themselves want to end the gang shootings. To do that, we must make it in the interests of the gang leaders—those who control gang activity—to stop the shootings.

And the best way to make the gang leaders strictly enforce a ceasefire on a lasting basis is to make their own freedom dependent on it. In other words, a key ingredient to a lasting ceasefire in Bermuda is to enact legislation that poses a strong and dire threat of long-term incarceration specifically targeting gang leaders, and to use that threat to enforce a lasting ceasefire.

From the policy implications I have just set out, we can make the following list of essential elements of a Bermuda Policy to reduce the effects of our unique gang problem:

The Policy should provide a strong incentive for defendants to plea bargain (thereby avoiding the uncertainty of jury trials);

The Policy should be constructed and implemented with the principle of fairness as its most essential element while being tough on those who are at the heart of the gang violence;

The Policy should maximize the use of witness evidence and testimony when it is available by leveraging that evidence in a way to also bring down top gang members and to provide an incentive for the gangs to put down their guns and agree to a lasting ceasefire;

The Policy should pose a strong and dire threat of long-term incarceration specifically targeting gang leaders, so that we can use that threat to enforce a lasting ceasefire;
The Policy must be constitutionally enforceable in court;
The Policy should have the potential to dramatically reduce gang violence quickly and on a lasting basis.

It may look like a very daunting task to put all these elements together in a cohesive manner, but as soon as we focus on one element—making multi-level distinctions in gang participation based on the seriousness of the crime committed and the level of gang involvement—all other elements fall into place.

With this distinction in mind, we can categorise gang members by their four levels of gang participation and then legislatively deal with them with the appropriate level of fairness and toughness. Fortunately, this distinction in gang activity has already been used in another jurisdiction (Canada) with much success. The essence of the Canadian “criminal organization” legislation is as follows:

Gang members on the periphery who have committed no crimes nor provided support for the gang to commit crimes will not be subject to criminal penalty, and will be unaffected by the legislation.

This deference to fairness in respect of these young men on the periphery will allow them the chance to give up the gang culture for alternative lifestyles without being saddled with the burden of a criminal record.

The legislation makes it a criminal offense, punishable for up to five years in prison, for a person to contribute to the activities of a criminal gang in a way that enhances its ability to commit a crime.

This part of the legislation pertains to those men who have gone beyond passive membership and have begun playing a supporting role in the criminal activities of the gang.

The variance in sentencing (from zero to five years) provides a deterrent while allowing judges to fit the sentence to the degree of criminal involvement. This judicial discretion in sentencing allows the legislation to meet all of its goals: fairness, toughness and deterrence.

The legislation makes it a criminal offense, punishable for up to 14 years in prison, for a person to commit an indictable offense for the benefit of, or in association with, a criminal gang, and such sentence shall be served consecutively to any other sentence.

This is where the legislation shifts its emphasis from fairness to toughness, and in doing so, it does something very creative—it converts what at present is one indictable offense into two.

For example, if a person hides the guns for a gang until they need them for the next shooting, that person would at present be charged with the indictable offense of illegal possession of a firearm and be sentenced accordingly. But that all changes after the legislation is enacted.

Because he has hidden the guns for the benefit of a criminal gang, he faces an additional sentence of up to 14 years and that sentence only begins to run after he has served his time for the original gun possession offense.

This not only provides a major deterrent to gang crime, but it gives the Director of Public Prosecutions significantly more power and flexibility to enter into plea bargains with these gang members in exchange for their testimony against the top gang leaders who are responsible for the gang violence that is plaguing Bermuda.

The legislation makes it a criminal offense, punishable for up to life in prison, for a member of a criminal gang to instruct another person to commit a criminal offense for the benefit of, or in association with that gang (i.e., the boss who gives orders to commit a crime such as selling drugs or shooting someone).

This is where the legislation is at its toughest, but it is much more than simply a deterrent. By creating a new criminal offense—giving a fellow gang member an order to commit a crime—the legislation has created a direct threat against every gang leader in Bermuda, which can be used to create and enforce a lasting ceasefire.

Just think the government’s negotiating power when it tells these gang leaders that we are going to have a lasting ceasefire in Bermuda and if any gang breaches that ceasefire, the police are going to offer a deal to the next gang underling they catch committing a crime—the criminal enters a witness protection program in the UK in exchange for testimony against the gang leader, putting him away for life.

That is the kind of ceasefire that a gang leader will honour as if his life depends on it—because it will.

So let’s sum up what I’ve said.

By examining the policy implications that flow from the social, geographic and economic factors that make Bermuda’s gang problem unique, the following becomes clear:

Gang violence poses a much greater threat to Bermuda than it does to most other countries because they don’t risk losing a large chunk of their economy if they fail to dramatically reduce gang violence immediately. We do. That is why enacting the most effective “criminal organization” legislation immediately is imperative to the safety and economic wellbeing of everyone in Bermuda.

Simply attempting to apprehend and convict gang criminals after they commit crimes will not be enough to meet Bermuda’s need to dramatically reduce its gang violence immediately.

Such an after-the-fact reactive approach is fundamentally flawed because the power-vacuum structure of gangs (the attraction of money, power and prestige) means that as soon as you lock up one gang leader, someone will quickly take his place to continue the crime and violence.

In other words, simply using an after-the-fact reactive approach means that Bermuda will fail to get ahead of the curve of its growing gang violence in time to prevent further loss of life and irreparable damage to its economy.

Bermuda’s racial history and its small population and geographic size create a unique and highly sensitive need for a Bermuda Policy that employs a delicate mixture of fairness and toughness with gang members.

This need can be met by enacting Criminal Organization legislation that makes multi-level distinctions in gang participation based on the seriousness of the crime committed and the level of gang involvement.

Upon enactment, the Criminal Organization legislation will be able to meet each of Bermuda’s unique policy needs.

Most importantly, the legislation will significantly increase Bermuda’s power to negotiate a long-term ceasefire that will dramatically reduce the gang violence that is threatening the physical, social and economic wellbeing of everyone in Bermuda.

Thank you.

Kevin Comeau, a Canadian lawyer, has resided in Bermuda since 1989. For the last seven years Mr. Comeau has spent much of his effort toward the development of social policy proposals with special emphasis on decreasing the gap between the haves and have-nots in Bermuda. Mr. Comeau recently established the Good Governance Institute of Bermuda, which sets out a number of these social policy proposals. (For more information see www.bdagoodgov.org)

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