CRIMINAL PROBLEMS -- CIVIL SOLUTIONS

San Jose's effort to curb gangs is part of controversial trend

San Jose's third attempt to combat gang violence through public-nuisance
laws is the latest in an increasing trend: governments using unconventional
civil remedies for criminal problems.

Generally, experts agree that applying civil tools to public safety problems
can accomplish what standard policing often cannot. They add that
authorities have been using them more often in recent years because of that
success.

But even as San Jose attempts to have 47 suspected gang members barred from
a wide range of conduct in a central San Jose neighborhood near Almaden
Avenue and Vine Street, the city's effort has also renewed debate over
similar tactics.

On one side are city attorneys, prosecutors and others who believe the
criminal justice system sometimes does not allow for creative solutions to
problems such as drugs, prostitution and violence.

``Criminal prosecution doesn't always accomplish what needs to be done,''
Karyn Sinunu, an assistant Santa Clara County district attorney, said Friday.

On the other side are critics who argue such methods can mean governments
will strip suspects of their constitutional rights, become more tempted to
act corruptly and target innocent people.

``There is a grave danger in dealing with problems that are basically
criminal in nature through civil legal tools,'' said John Crew, a lawyer
with the Northern California branch of the American Civil Liberties Union.
``Often the choice to pursue the civil legal process is an end run around
the basic constitutional protections offered in criminal proceedings.''

The standard way for governments to deal with illegal activity, of course,
continues to be police forces that deter crime through patrols and
investigations. Arrested suspects can be prosecuted in a criminal justice
system that comes with an array of guarantees.

Among them are the right to an attorney, freedom from self-incrimination,
the presumption of innocence and an extensive set of due process
protections. Defendants in serious cases can demand a jury trial, and can
only be found guilty if evidence proves it beyond a reasonable doubt.

By contrast, the civil system does not carry the same level of
constitutional safeguards and has a lower burden of proof. Many cases are
decided by judges, who critics say may be more likely to side with the
government than with defendants.

Attacking the cause

But supporters say they can use the flexibility of the civil system to
prevent problems before they occur, to address a widespread pattern of
criminality and to attack the cause of crime rather than the effects.

Moreover, some legal experts stress that because the cases are civil, they
do not require or deserve the same protections as criminal cases. If a
member of the public gets sued, one asked rhetorically, should they get a
public defender?

For instance, authorities have used public-nuisance laws to stem the source
of criminal problems. That's what San Jose is trying to do in this most
recent case.

The city attorney's office has identified 47 people who allegedly belong to
four gangs and have turned the neighborhood near downtown known as
Almaden/Vine into a battleground.

In sealed court papers filed July 10, the city is asking a judge to prevent
those 47 people from engaging in a wide range of legal and illegal behavior
while in the area. Examples of the conduct attorneys want blocked include
carrying beepers, making loud noises or helping people flee police.

Their application for a gang-abatement injunction is scheduled to go before
a Santa Clara County Superior Court judge Friday. It is similar to two
others the city successfully obtained in recent years in the Rocksprings and
Appian Lane areas. Both have helped dramatically lower crime in those
neighborhoods, the city says.

Efforts elsewhere

Gang-abatement injunctions are most popular in Southern California; Los
Angeles, San Fernando, Inglewood, Burbank, Long Beach, Pasadena and Norwalk
have all used them.

Salinas is seeking one to root out a gang problem in a five-block
neighborhood. And Deputy City Attorney Trish Aljoe said even as hearings
continue in the case, the measure has had a dramatic effect there.

``The police told us it was like a ghost town,'' she said. ``Even though it
wasn't officially granted yet, the gang members knew about it and were
abiding by it.''

But that type of approach is not confined to fighting gangs. It also allowed
San Jose to close Charlie's Liquors, a store that downtown residents said
caused innumerable problems by freely selling alcohol.

In February, the Santa Clara County District Attorney's Office used the same
method to shut down a Mountain View massage parlor.

Among the other prominent civil tools governments have at their disposal are
asset-forfeiture laws. Those allow governments to confiscate property that
either enabled a crime or represents its profits.

In Oakland, for example, police are seizing the cars of people suspected of
seeking drugs or prostitutes. Attempts to reach the Oakland city attorney's
office Friday were unsuccessful.

The ACLU has filed suit because of that program, saying it has cast too
broad a net and denies due process. Crew contended that in some forfeiture
cases owners get their cars seized when they were not responsible for the
alleged misconduct.

Although civil laws have been used as an alternative way to battle crime for
years, they have become enormously more popular in the 1990s. That trend is
the result of several factors, according to experts.

One source is frustration with the workings of a cumbersome and overcrowded
criminal justice system. If someone violates a judge's order in a civil
case, that person can be thrown into jail instantly for contempt of court --
a much simpler process than prosecuting a repeat offender in the criminal
system.

``The assessment on the part of the police is if you just do it one by one,
defendant by defendant, you're incarcerating those individuals,'' said
Robert Pugsley, a professor at the Southwestern University School of Law.
``But there seems to be an inexhaustible supply of others.''

He said that with court orders, authorities can uproot problems in a single
attempt. But while civil approaches are being used more frequently, Pugsley
said they are unlikely to become commonplace because they are so
labor-intensive to obtain.

Customized solutions

Another factor is the rise of community policing. That philosophy holds that
officers should work with residents and other agencies to solve problems
because they can't do it alone. A third is the attempt to develop customized
solutions to complex problems.

But none of those reasons satisfies critics.

Crew said there is a misperception that the criminal justice system is
flawed when old-fashioned police work really is enough to protect public safety.

Civil approaches would ``criminalize otherwise normal behavior when these
people aren't doing anything criminal,'' said Steven Rease, a deputy
Monterey County public defender representing 12 juveniles in the injunction
case in Salinas. ``You're conceding, as far as we're concerned, that these
people haven't committed a crime.''

Checked-by: Melodi Cornett