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Why Georgia’s Street Gang Act May Be Unconstitutional As Applied to Macon’s “Hybrid” Street Gangs

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By Dave Oedel

This week, sitting in the gallery during parts of the trial of Andre Maurice Bonner, 32, who was convicted Friday for the murder of 17-year-old Jamonni Bland in the parking deck outside the Zodiac Lounge in Macon near Walnut and Broadway at about 3:30 a.m. on July 5, 2013, I thought about the constitutionality of Georgia’s law on street gangs.  Georgia’s Street Gang Terrorism and Prevention Act adds stiff penalties for crimes committed in association with street gangs – sentences of three to fifteen years in addition to the penalties for the predicate crimes committed. Bonner is affiliated with Macon’s Westside Mafia, a so-called hybrid street gang, and Bonner was also convicted of several street-gang enhancements.

The possible unconstitutionality of Georgia’s anti-gang law probably won’t matter to Bonner, though, whose conviction for murder largely moots the issue for him. He’ll be imprisoned for a very long time, so any enhancements to his sentence may well be practically irrelevant.

First passed in 1992, Georgia’s anti-street-gang law has been beefed up subsequently as gang affiliation has become a more pervasive part of African-American cultural life in Middle Georgia and beyond. While gang culture has been popularized in Macon, crime rates have risen. Whether there is a demonstrable causal connection between the two is open to debate, though the interplay does tend to get your attention.

Georgia’s anti-gang law as applied in the case of Bonner and the Westside Mafia in Macon is a far cry from the “real” mafia trials, including the Italian-American Cosa Nostra gangland trial of Gennaro Angiulo and his associates in Boston’s federal district court before Judge David Nelson in 1985-86. I happened to sit in on significant parts of that highly publicized trial when I was interning as a clerk in federal court in Boston for Judge Joseph Tauro. Angiulo was the last of the big-time mafia dons in Boston. His conviction, ironically, was secured through the wiretapping placement help of Whitey Bulger, an Irish-American mobster who wanted Angiulo’s turf. Angiulo’s mafia organization was a classic one pretty much straight out of the Godfather movies, complete with elaborate initiations, formal roles, great intrigue and exacting discipline.

Macon’s Westside Mafia appears to be a far different thing – a much looser, more informal set of neighborhood affiliations with an amorphous definition (including use of Mercer garb), almost-routine involvement with what the rest of society seems increasingly to accept as “minor” criminality (mostly selling marijuana and cocaine for cash while sometimes packing concealed heat without a permit), reliance on the casual rhythms of daily life without formal work “in the hood,” and, in general, black cultural bling.

That’s not to say that gang affiliations aren’t seriously at play when someone, say, on the south side of Montpelier in Macon associated with the Crips steps on the toes of someone on the north side of Montpelier associated with the Westside Mafia. One thing led to another after Crips-affiliated Deion Davis stepped on the sneaker of Mafia-affiliated Arthur Freeman III on July 5, 2015 at the Zodiac. The subsequent brawl minutes later led to Bland’s death and, this week, Bonner’s conviction.

In the most surprising element of Bonner’s trial, Bonner’s careful defense counsel Melvin Raines introduced on Bonner’s behalf a rap-related video, “Hood Life,” largely shot in Macon on the north side of Montpelier in 2014 that highlights some aspects of the Macon Mafia aesthetic. The video gives outsiders a window on the cultural issues without having to visit Montpelier in the flesh, as I have, to chat with people in the Westside Mafia’s neighborhood. Incidentally, I have also crossed the street and spoken to people with Crips affiliations. I suggest that you take a look at the “Hood Life” video link above before reading further.

Although the “Hood Life” video was not dissected in detail by any witness at Bonner’s trial, it seems to have been introduced in part to suggest that, even in the context of drug dealing, partying and weed smoking, Macon’s Westside Mafia can salute “Stop the Killing” messages, and offer serious artistic and political commentary in association with the Macon Westside Mafia affiliation. Another possible reason for Raines’ introduction of the video might be its implicit suggestion that well-known rappers, some from outside Westside, and various people in the local community, including little kids, young women and an old man, may join in allegiance to Macon’s Westside Mafia.

At Andre Bonner’s trial, the Bibb sheriff’s gang-unit chief Cedric Penson explained that “hybrid” gangs like Macon’s Westside Mafia are relatively disorganized and vague in their definition, at least in comparison with classic gangs of the Cosa Nostra variety. When pressed to say how many hybrid gangs there are in Macon, Penson indicated that there are between 50 and 100, maybe more. Person explained that the first measure of gang membership is self-identification, followed by such things as use of color-coded clothing and hand signs.

Images from Bonner’s cell phone pictures and Facebook page were introduced as evidence to demonstrate his gang membership. In addition to convicting Bonner of murder, Bonner’s jury also convicted him of numerous gang-based crimes that could warrant sentencing enhancements.

Penson’s testimony suggested that convictions under Georgia’s Street Gang Terrorism and Prevention Act of hybrid-gang-affiliated crimes may be unconstitutional. Hybrid gangs have a rather loose organization, general cultural significance beyond crime, and minimal criminal enterprise dimensions. Even Penson couldn’t articulate a sufficiently narrow definition to be able to say just who may be subject to the gang law, let alone how many gangs there are in Macon-Bibb.  His own boss David Davis said last year that there are 400 or so hybrid gangs in Macon-Bibb, giving you some feel for the wild distinctions possible in the counting of  “street gangs” under the law as applied in Macon.

For the legal crowd, let me briefly note some constitutional problems with Georgia’s act as applied.  The act is vague in its practical definition of “street gangs” and their members; arguably violates rights of association under the First Amendment as suggested by the case of NAACP v. Alabama; exhibits serious over-inclusiveness as a result of a definition of gang membership that effectively includes many neighborhood people wearing gang-affiliated colors or flashing in-crowd hand signs; implicates several First Amendment expression issues; involves self-incrimination problems under the Fifth Amendment when any officer asks about gang affiliation; and plenty more constitutional concerns, including racial issues under the Equal Protection clause.

Bibb’s district attorney David Cooke has aggressively used Georgia’s Street Gang Terrorism and Prevention Act statute to slam serious criminals in Macon-Bibb, which is understandable given the serious crime rates in Macon-Bibb. However, the street gang statute itself as applied in Macon-Bibb may be unconstitutional.  Some degree of official discretion should be used by people like Cooke and Bibb’s major felonies judge Howard Simms, who oversaw the Bonner case, to back off of routine reliance on it. If someone like Andre Bonner is convicted of murder, there obviously is no reason to fall back on street gang penalty enhancements. By loading up the indictment list with gang-related charges in cases like Bonner’s, it leaves the impression that prosecutors may want to fall back on a legally flimsy insurance policy to force pleas or rescue failed efforts on the real crimes. With Sandy Matson at the helm of Bonner’s carefully conducted prosecution, that was unnecessary.  However, in an appropriate case, Georgia’s anti-gang law should be challenged constitutionally.

I’m well aware that some will say that we shouldn’t be worried about legal niceties – that public officials should just throw the book at any criminal in sight.

But think twice before you say that anyone friendly with a felon is part of the felon’s “street gang.” That’s a recipe for tyranny, as our framers well understood.

Currently there are "2 comments" on this Article:

  1. […] for Wednesday, May 6, by Bibb Superior Court Judge Howard Simms.  Gang-related enhancements, more legally questionable, were also found by the […]

  2. […] I wrote in the Macon Monitor that Georgia’s law giving extra time for gang-affiliated crimes may be unconstitutional as applied in Middle Georgia’s setting, Bibb district attorney David Cooke approached me to report […]

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