Submitted to:

Mrs Heather Cooke, Clerk to the Houses of

BILL: Criminal Justice

(Suppression of Criminal
Parliament
Organisations)
By: Yvonne McCalla Sobers, human rights

Submission before the

Joint Select Committee
advocate

Contents
Attention: Joint Select Committee Members............................................................................2
SUMMARY & RECOMMENDATIONS................................................................................ 3
SUBMISSION................................................................................................................ 7
Background................................................................................................................. 7
Gangs........................................................................................................................ 8
Development of gangs................................................................................................ 8
Defining Gangs......................................................................................................... 9
Gang Recruitment...................................................................................................... 9
Gang culture in Jamaica............................................................................................ 10
Previous attempts to disrupt and suppress gangs...............................................................13
Impact to date of anti-crime laws and anti-gang units........................................................15
Anti-gang laws in other countries................................................................................. 17
Common but unhelpful beliefs about criminology............................................................18
Social justice methods............................................................................................... 19
Impact of the economy on criminal activity....................................................................20
Apparent reasons driving demand for this Bill.................................................................22
The Bill.................................................................................................................... 23
Definition of terms................................................................................................... 23
Grounds for arrest.................................................................................................... 25
Judge-alone trials in camera....................................................................................... 25
Violation of international conventions...........................................................................26
Likely effect of this Bill....................................................................................... 27
APPENDIX.............................................................................................................. 28

Attention: Joint Select Committee Members

Minister of National Security, Peter Bunting
Minister of Youth and Culture, Lisa Hanna
Minister of State in the Ministry of Tourism and Entertainment, Damian Crawford
Opposition Spokesperson on Justice, Delroy Chuck
Opposition Spokesperson on Youth, Sports, and Culture, Olivia Babsy Grange
Member of Parliament, Richard Parchment
Member of Parliament, Jolyan Silvera
Minister of Justice, Senator Mark Golding
Senator Norman Grant
Senator Wensworth Skeffery
Senator Sophia Fraser Binns
Senator Arthur Williams
Senator Thomas Tavares-Finson

SUMMARY & RECOMMENDATIONS

Methods to control gangs have included punitive measures to address symptoms, and social intervention
measures to address root causes of criminal activity. What seems needed are solutions that relate
problems identified through research on gangs and through studies of Jamaicas unique and complex gang
culture. Most of all, a balance needs to be found between law enforcement and social intervention.
The Criminal Justice (Suppression of Criminal Organisations) Bill falls into the punitive category. This
Bill is the latest of attempts, by various administrations, to use draconian measures to punish those
deemed to be involved in organised crime. The major difference is that the anti-gang legislation seeks to
penalise guilt by association rather than guilt for committing criminal activities. As a result, this
legislation, is likely to infringe fundamental rights and freedoms such as relate to privacy, freedom of
association, freedom of movement, and freedom of speech. It also will result in:

Justifying illegal detentions (after the fact) by providing grounds for charges that do not need

proof of criminal behaviour;

Criminalising inner-city youths who have committed no criminal act for which they could be

charged; and
Stigmatizing and isolating rather than rehabilitating persons who have committed crimes and
have paid their dues to society.

Further, this proposed Bill does not seem to take into account the root causes of crime identified by
various studies: garrison culture, ease of access to illegal guns, joblessness and hopelessness of youth,
police deficits in investigating and solving crime, and an educational system in which about 85 per cent of
students (mostly males) leave school ill-equipped for employment or further education. The Bill also
does not consider the impact on the Jamaican population (especially those most at risk) of Jamaicas
declining dollar, increased unemployment (now officially 16.3%), increasing cost of living (cost of living
index), and limited access to a safety net.
Most of all, this Bill does not seem to take into account such research as has been done on Jamaican
gangs, and the information available from organisations, such as Peace Management Initiative, that have
years of experience working with Jamaican gangs of different types.
It would seem that drafting of this Bill relied entirely on overseas models that have little in common with
the Jamaican gang culture. Older anti-gang legislation (as in the United States of America) has resulted in
3

an increase rather than a decline in gang violence, even when crime overall has declined. In other
countries, the constitutionality of the legislation has been successfully challenged. It is noteworthy that
this draft did not seem to take into consideration a United Nations study that linked changes in economic
factors, such as the current International Monetary Fund (IMF) loan agreement, to changes in criminal
activity.
A Bill based on inadequate research, mistaken diagnosis, and incorrect prescription can only worsen the
security crisis that Parliamentarians would hope to resolve by passing this Bill.
Members of this Joint Select Committee may therefore be well-advised to consider the following
questions:
1. Exactly what problem is this anti-gang legislation intended to solve?
2. Why have gangs increased in size, influence, and firepower, despite previous legislative attempts
to reduce the scale and scope of gangs?
3. Why do Jamaican youth from low-income communities seem drawn to gang or corner crew
activities?
4. What are the special features of anti-gang legislation that are expected to remove gangs from the
streets, or deter people from associating with gangs or continuing membership in gangs?
5. How can terms such as criminal organisation and gang be defined so that the police and the
public are in no doubt about those to whom the legislation applies?
6. What exactly can Jamaica learn from experiences of other countries with anti-gang legislation?
7. Which groups would have the most to gain or lose from anti-gang legislation? How will the
voices of those stakeholders be heard and taken into consideration?
8. What interventions are needed to enable at-risk youth to direct their energies to socially
responsible activities that contribute to national development?
It is suggested that action to reduce the size, scale, and scope of gangs requires decision-makers to:

Research and data gathering

A. Rely on credible research into size, membership, geographical spread, and operations of gangs.
B. Study differences between Jamaican gangs and corner crews and gangs (such as biker gangs,
and Crips and Blood gangs) that have clearly identifying marks, symbols, and colours, and mode
of dress or travel.
C. Review the impact of gangsta style on music, fashion, behaviour and overall perception of
masculinity, with the result that not all who wear gangsta style (such as hoodies, head scarves,
baggy pants, or heavy jewellery) are necessarily gang members.
D. Acknowledge the overall difficulty of distinguishing between gang members and non-gang
members, especially in Jamaica where gangs are not as distinguishable as in other countries.
E. Avoid stereotypes that may cause the innocent to be labelled as gang members.
F. Identify the specific gang/crime/community problems to be solved in the Jamaican environment.
Improved policing
G. Put in place measures to improve policing strategies aimed at reducing alienation of at-risk
communities and building alliances between the police and the law-abiding in these communities.
H. Improve police data bases, information systems, electronic resources, technical expertise, and
crime analysis capacity, with focus on investigative skills.
I.

Provide resources to enable significant improvement in speed and accuracy of forensic testing,
analysis, and reporting.

J. Focus on crime prevention and effective enforcement of existing criminal laws.

K. Ensure that day-to-day police work brings to court the quality of evidence likely to lead to
conviction of criminal offenders.
L. Provide law enforcement with increased resources.
M. Emphasize strategies to build trust and cooperation between citizens (in particular youth) and the
police.
N. Engage the public, through community policing, in solving crime problems.

O. Avoid situations in which those disposed to committing crimes lie low until they figure out how
to get around the laws, and then revert to even more violent crime.
Fair trial and rehabilitation
P. Enable increased improvement in justice systems, with the aim of reducing backlog and building
public confidence in fair trials for all, especially those who are poor, uneducated, patois-speaking,
and unable to afford counsel.
Q. Enable marked improvement in correctional systems to ensure humane treatment of prisoners,
provide opportunities for rehabilitation, and to eliminate the stigma and discrimination that makes
ex-inmates easy recruiting targets for gangs.
R. Recognise that removing gang leaders, by death or incarceration, can leave vacuums for younger
(and sometimes more desperate and heartless) players to take over gang leadership.
Social intervention and consultation
S. Take steps to stabilize gang-dominated communities with job opportunities that offer hope of a
career, improved health care, education leading to personal development, skills training,
affordable housing, and space for recreation.
T. Increase the reach and benefits of the PATH programme to provide the most vulnerable with a
buffer against the need to meet the terms of the IMF agreement.
U. Convene a national consultation on crime and creating economic opportunities for young people.
Economic recovery
V. Expend social and political capital on solutions that unite Jamaicans in working toward economic
recovery, rather than continue paths of alienation of communities most likely to endure hardship
and be most negatively affected by tightening of the economy.

SUBMISSION

Background
This paper is intended to draw attention to aspects of this Bill that may create problems for the justice and
security systems without achieving the purposes stated in the preamble to the Bill:
1. Provide for disruption and suppression of criminal organisations.
2. Address the danger criminal organisations pose to public order, public safety, and economic
stability.
3. Address failure of existing laws to adequately disrupt, suppress, or otherwise effectively deal
with organised crime and criminal organisations.
4. Target leaders of criminal organisations, and criminalise management of and related conduct in
relation to in connection with enterprises that are involved in criminal activity.
5. Criminalise participation in and promotion of the activities of criminal organisations, given the
presence of criminal organisations in many communities that is pervasive and harmful to the
well-being of those communities.
6. Restore a sense of security in the Jamaican society and strengthen the capacity of law
enforcement agencies to deal with crime effectively.

Gangs

Development of gangs

Sociologist Frederic Thrasher1 was a social reformer who believed that gangs were part of the
psychological and group processes of adolescence in poor communities. He linked formation of
gangs to social conditions in inner-city communities with features such as deteriorating housing
and poor employment prospects. In his view, these conditions resulted in neighbourhoods where
social institutions and social control mechanisms were weak and ineffective. He argued that the
lack of social controlled youths to find other means of establishing social order; they did this by
forming gangs.
Other researchers such as Albert Cohen (1955) have put forward the theory that gangs arise from
a subculture created by lower socio-economic youths who are responding to their exclusion from
mainstream middle-class culture. Since these youths realise they are unlikely to attain middleclass status, they create a gang culture that provides them with an alternative source of status.
Walter Miller (1958) theorised that gangs and criminal activity are behavioural manifestations of
a lower-class culture that values toughness, smartness, excitement, fate, and autonomy. Richard
Cloward and Lloyd Ohlin (1960) proposed that gangs form because of the uneven distribution of
lawful and unlawful means of attaining goals. Gangs were perceived as being able to reduce
feelings of frustration and powerlessness by providing youths with access to unlawful means of
feeling successful.
Since the 1980s, gangs and gang activity have changed. Hagedorn (1988, 1998), Horowitz
(1983), and Wilson (1987, 1996) noted that gangs were tending to become economic entities in
illegitimate as well as legitimate economy, and could no longer be analysed solely on criminal
behaviour.
1Frederic Thrasher was a sociologist at the University of Chicago, and was one of the most
prominent members of the Chicago School of Sociology in the 1920s. Thrasher's epic work: The Gang: a
study of 1313 gangs in Chicago has been regarded as still be the best study of gangs ever written.
8

Defining Gangs

There have been many different definitions of gangs. Some scholars have seen gangs as
facilitating criminal activities, and others have seen gangs as innately oriented toward
criminality. Definitions that stress crime and violence over group process treat gangs as
primarily the responsibility of law enforcement. Definitions that emphasise the sociology of
group process treat gangs as primarily the responsibility of social agencies. In Jamaica, a balance
may need to be found between law enforcement (for gang members who have broken the law)
and social intervention (for unattached and at-risk youths who have committed no criminal
offence).
Scholars have had difficulty in generating consistent findings and generalisations about gangs,
because the lack of consensus about the defining features of a gang has made it difficult to
generate consistent findings and generalizations. Using criminal activity to distinguish groups as
gangs can be a problem, especially as there are already laws under which offenders could be
charged. Ignoring the need to prove criminal activity could place any youth activity group at risk
of being criminalised.
Gang Recruitment

Martin Sanchez-Jankowski (1991) suggested three typologies of gang recruitment:

1. Fraternitythe gang presents itself as cool, macho, anti-establishment, the social group
to join;
2. Obligationthe gang appeals to a person's sense of community, especially when the
community is under attack by outsiders; and
3. Coercionthe gang uses physical and psychological intimidation to force youths to
become members.
Youths may join gangs because they are seeking:

Camaraderie: a sense of belonging;

Status: new and exciting experiences;
Protection: they may be harassed, assaulted, or even killed for not belonging to the
right gang or for not having tough and streetwise allies;

Bling: they may want the latest in whatever are considered most fashionable

accessories (vehicles, smartphones, hot girlfriends);

Access to drugs and alcohol; and
Monetary opportunities through illegal activities.

Youths will therefore believe that the gang will provide them with things they could not
otherwise obtain. Most of the youth are likely to come from families unable to provide for their
needs, and gangs can compensate for what is lacking in home life. Further, the State may
perceive troubled youths as being security problems rather than as having unresolved problems
that lead them to turn to gangs.

Gang culture in Jamaica

It is challenging to find reliable and comprehensive studies of gangs in Jamaica. Researchers are likely to
face difficulties in collecting data because the topic is so very sensitive. For example, anthropologist Dr
Herbert Gayle has said that in researching social violence he has been shot at by police, had guns pulled
on him by gangsters and been made to 'kiss' a concrete pavement 2.
Further, researchers will need to define gang so as to capture all the nuances of the formal and informal
networks and organisations of groups in Jamaica. One available study3 by Glaister Leslie provided much
of the data set out below.
Glaister Leslie referred to a 1998 study, commissioned by the government, that categorised Jamaican
gangs by levels of organisation (Moncrieffe, 1998). This study distinguished between:
1. Criminal organisations that are heavily involved in international gun-running and drugstrafficking and have an entrepreneurial intent. These gangs tend to have adult rather than youth
membership.
2 Herbert Gayle: Facing down danger to study violence published in the Jamaica Observer November
28, 2010 http://www.jamaicaobserver.com/mobile/career/The-anthropologist_8186199
3 Confronting the Don: The Political Economy of Gang Violence in Jamaica written by Glaister Leslie and
published by the Small Arms Survey in Switzerland in 2010 http://www.smallarmssurvey.org/fileadmin/docs/BOccasional-papers/SAS-OP26-Jamaica-gangs.pdf

10

2. Highly organised gangs with identifiable leadership, a formal hierarchy, assigned roles, specific
territory, activities that increase cohesiveness, and formalized roles.
3. Moderately organised gangs with some characteristics of the highly organised gangs such as
high levels of cohesion.
4. Loosely organized gangs with no identifiable leadership or consistent leader, no cohesive
activity, hierarchical structure or specialized roles.
5. .Corner crews that are relatively informal gangs and may not be connected to politically
motivated violence, Corner crews may have youth and children involved in activities, and may
exist in communities dominated by area gangs. Corner crews are likely to identify with and
defend the party dominant in their communities. Some may be engaged in criminal activities, but
most benefit from political patronage in the form of jobs and housing.
6. Area gangs that dominate entire communities and may be well rooted in political patronage and
political violence
7. Youth gangs with members between the ages of 12 and 15, concerned mainly about turf and
respect. Social workers have described them as amenable to social intervention. .
Manwaring (2007) classified Jamaican gangs by generation:
1. First-generation: traditional street gangs with a turf orientation. They are loosely structured, and
their engagement in criminal activity is likely to be opportunistic and localised.
2. Second-generation: more entrepreneurial and focused on gun-running and drugs-trafficking. They
may dominate vulnerable communities to improve their market share and revenues.
3. Third-generation: transnational and will control ungoverned or poorly-governed spaces.
Second and third generation gangs will dominate communities not just by using force, but by investing in
social benefits that compensate for the neglect by the Jamaican State. Some have historically been known
to have strong ties to the two major political parties and play a big role during elections and the
campaigns which precede them.
In the 1960s and 1970s, both major political parties the Peoples National Party (PNP) and the Jamaica
Labour Party (JLP) - formed garrison constituencies. It was alleged that politically-affiliated gangs used
their weapons, in their garrison communities, to coerce political loyalty; enforce political boundaries; and
prevent incursions by competing political interests. Outside of their garrison communities, these gangs
reportedly used methods from coercion to terror to expand turf and enforce party loyalty.
Like gangs elsewhere, Jamaican gangs have also become business entities. They finance themselves with
profits made from extortion, gun-running, and drugs or human trafficking. Their wealth provides the
11

means to bribe the security forces and other agents of the state, to serve as surrogates for political parties
in the role of benefactors to communities, and also to engage in legal business enterprises while
laundering money4.
Jamaican gangs pose threats to the countrys internal stability and external reputation. For example, gang
presence causes community residents to be intimidated into supporting gangs and colluding with criminal
activity. In addition, residents risk death if they defy gangs, cooperate with police investigations, or testify
at trials of gang members. Conversely, residents become dependent on gangs for financial support for
general subsistence, for funeral expenses, and for childrens uniforms, school fees, and lunch money.
Local businesses experience theft, pay gang taxes for protection; many relocate or close their
operations, to the detriment of the community.
A gang culture also affects the ethics of the society. Persons may come to believe that the means (such as
theft, killing, or extortion) justifies the end. Data show that youth are influenced by gangsta styles and
absence of morals. Most critically, students (from high schools to basic schools), reportedly form gangs
that mimic the community gangs. In addition, residents may accept gangs as a necessary evil when they
are devoid of any other means of financial support.
The Jamaican gang culture is therefore complex and without parallel elsewhere. At the lowest level are
poor, barely organised adolescent boys without interest in profit or power but intent on defending their
communities. At the other end are the criminal organisations and highly organised gangs with longestablished ties to Jamaicas politicians and with the resources to absorb smaller gangs. Their wealth and
purchasing power allow them to live in exclusive neighbourhoods and gain a measure of social
acceptability.
Any attempt by the State to control gangs must be based on full appreciation of the unique features of
gangs in the local context.
Previous attempts to disrupt and suppress gangs
Jamaican governments have sought to dismantle gangs through crime control measures (legislation and
formation of special police units) or social justice (often promised but unevenly implemented if at all).
Crime control strategies emphasize punishment as a tough on crime means of deterring criminal
4 Gang bust! Police to target gang leaders in 2012 published in the Jamaica Gleaner October 8, 2011
http://jamaica-gleaner.com/gleaner/20111008/lead/lead2.html

12

activity. Social interventions have been put forward as a means of addressing the root causes of criminal
activity.
Past methods of combating gang activity have included attempts to 5:

Deny access to guns and bullets.

Deny access to financial resources and the proceeds of crime.
Deny access to civil and political support by reducing corruption in the public and private sectors.
Name and shame suspected gang members to erode their support and legitimacy in communities.
Disrupt enterprise crimes such as drug dealing, extortion, and car thefts.
Utilise electronic surveillance, plea-bargaining, witness protection, fast trials, and mandatory

sentencing.
Apply military combat strategies to law enforcement efforts in order to overwhelm criminals with
resilient force (as in the 2010 Tivoli Gardens operation).

Punitive legislation
The gang problem has worsened in 40 years of increasingly draconian laws such as:

Gun Court Act (1974). The Gun Court was intended to deter those committing gun crimes by
rapid investigation, swift in camera trial, and mandatory life sentences. The Act was amended in
1983.

Suppression of Crimes Act (1974). This Act effectively suspended or undermined some human
rights of Jamaican citizens for almost 20 years. Police had the legal framework in which to search
without warrants, arrest without reason, and detain without charge. When this Act was repealed in
1993, many of the provisions were incorporated into the Constabulary Force Act.(US)

Money Laundering Act (1996). This Act was intended to the prevent gangs from investing
proceeds from criminal activities in legitimate businesses so as to disguise their association with
criminal activities.(US)

Terrorism (Prevention) Act and Regulations (passed in 2005 and amended 2010). This Act
addressed money laundering and the financing of terrorism. (US)

Corruption Prevention Act (2005).This Act was intended to eliminate corruption in the
performance of public functions. (US)

5 Confronting the Don: The Political Economy of Gang Violence in Jamaica written by Glaister Leslie and
published by the Small Arms Survey in Switzerland in 2010 http://www.smallarmssurvey.org/fileadmin/docs/BOccasional-papers/SAS-OP26-Jamaica-gangs.pdf

13

Six Anti-crime Acts (2010). These Acts essentially transferred discretion from judges to the
police with respect to depriving citizens of liberty on being detained, arrested, or charged:

1. An Act to make interim provision extending powers of arrest and detention

under sections 50B and 50F of the Constabulary Force Act so police could detain
civilians for 72 hours (up from 24 hours) without charging them;.
2. An Act to further amend the Firearms Act, to provide for a minimum sentence
of 15 years for certain convictions;
3. An Act to amend the Parole Act to allow for persons sentenced to 15 years to
life for specified firearms offences to be denied parole before completing 10 years
sentence;
4. An Act to amend the Offences Against the Person Act to provide for a
minimum custodial sentence of 15 years for persons convicted in the Circuit
Court of shooting or wounding;
5. An Act to make interim provision, in relation to the grant of bail in specified
circumstances, for accused persons to be detained for up to 60 days on certain
charges; and
6. An Act seeking to amend the Bail Act to require the accused to satisfy the court
that bail should be granted and conferring on the Director of Public Prosecutions
(DPP) the right of appeal where bail is granted by the court.

Financial Investigations Division Act (2010). This Act provided for the establishment of a
department of government to be known as the Financial Investigations Division for the
investigation of financial crimes and for connected matters.

Proceeds of Crime Act and Regulations (passed 2007 and amended 2013). This Act allowed the
government to seize the assets of persons suspected of having accumulated wealth through
criminal activities.

14

Some of these Acts arose from external pressure rather than internal demand. For example, Acts
related to money-laundering, terrorism, and corruption were drafted and passed in order to qualify for
financial support and meet standards set by the US State Department 6.

Aggressive policing
Since about 2000, many Jamaica Constabulary Force (JCF) units have been formed to combat gangs:

Operation Intrepid (mid 1999) was the 13th police anti-crime unit formed since 1976).
Special Anti-Crime Task Force (late 1999) replaced ACID.
Crime Management Unit (2000) was set up to target dons and deal with extortion, car-jackings,

guns and deportees who were involved in crime. The unit was disbanded in 2004.
Major Investigations Task Force (2002) was set up to investigate gun-related crimes in Kingston

and St. Andrew. It also collaborates with operational arms such as the Mobile Reserve.
Operation Kingfish (2004) was mandated to go after criminals and criminal gangs committing
crimes, and conducted probes that resulted in the arrest and conviction of reputed criminal dons,
including Donald 'Zekes' Phipps of Matthews Lane and Joel Andem of the Gideon Warriors.

Operation Kingfish was quietly disbanded between 2008 and 2012.

Major Organised Crime and Anti-Corruption Task Force (2012) targets high-level individuals
suspected of involvement in money laundering, corrupt activities and other serious crimes

Impact to date of anti-crime laws and anti-gang units

Gun Court and Suppression of Crimes Acts were passed in 1974 when the murder rate was just over 200
(about 8 per 100,000). Forty years later, with the Gun Court still in place, two decades of the Suppression
of Crimes Acts, innumerable crime-fighting JCF units, the murder rate reached a record high:
approaching 2,000 (about 64 per 100,000). Few countries in the world, even in times of war, have had a
higher murder rate. In addition, there are on-going allegations of police killings of unarmed civilians.
The rate of police killings of civilians in 2007 was 10.2 per 100,000, double the 2004 rate. The average
for the past decade has been well over 200 civilians killed by the police per year.

6 2013 International Narcotics Control Strategy Report (INCSR)--Volume II: Money Laundering and Financial
Crimes Country Database published by the US Department of
Statehttp://www.state.gov/j/inl/rls/nrcrpt/2013/database/211182.htm

15

Laws that support aggressive policing can promote infringement of rights. For example, the practice of
detaining first (on suspicion) and then investigating (to see if there is reason for suspicion) has become a
routine policing practice that violates presumption of innocence. A former Minister of Justice, attorney-atlaw Delroy Chuck, said that the police were acting illegally 90 per cent of the time when they arbitrarily
detain inner-city young men on suspicion of criminality7. However, a law that penalises youth for whom
they allegedly know can justify illegal detention in hindsight.
There is no evidence that laws sacrificing civil liberties have increased public security or public trust in
the security forces. For example, no evaluation seems to have been done on the impact of the Six Anticrime Acts of 2010. Other events of 2010 the incursion into Tivoli Gardens and the extradition of
Christopher Dudus Coke - were regarded as mainly responsible for the 2010-2011 decline in murders
by 15 per cent. However, by 2012, the murder rate was rising again.
It is noteworthy that, on June 15, 2011, the Supreme Court found one of the Six Crime Acts
amendments to the Bail Act to be unconstitutional. Further, it could be argued that one foreseeable
result of these Acts overcrowding in jails did indeed occur. In 2011, the Civilian oversight Authority
revealed that it noted that police lockups were dangerously overcrowded 8. A JCF spokesperson
acknowledged that the number of persons held in police lockups had increased by 900 since the 20072008 reporting period.
There are about 300 gangs operating in Jamaica today, up from an estimated 35 in 1994 and 85 in 2004.
Despite draconian methods to contain them, gangs seem more heavily armed and more defiant than ever.
In addition, gangs have grown in size and prominence despite the States efforts to dismantle them. For
example, the Clansman and One Order gangs of Spanish Town seem able, with impunity, to commit
criminal acts that are increasingly brutal and sophisticated. The police estimate that the Clansman gang
makes over $400,000 million per year in criminal activities.

7 Police abusing rights of poor, vulnerable Chuck published in the Jamaica Gleaner September 25, 2011
http://jamaica-gleaner.com/gleaner/20110925/news/news1.html

8 Jails jammed - Police Civilian Oversight Authority warns Gov't about overcrowding problem plaguing lockupsPublished in the Jamaica Gleaner June 26, 2011
http://jamaica-gleaner.com/gleaner/20110626/lead/lead2.html

16

17

Anti-gang laws in other countries

There are no available success stories in countries that have adopted anti-gang legislation (see Appendix).
A common concern is the constitutionality of anti-gang laws, and the difficulty of prosecuting persons
based on difficulties in defining gang and gang member to the satisfaction of the courts. For example,
Trinidad and Tobago arrested hundreds of persons under its 2012 anti-gang legislation, and then was
unable to follow through with prosecution because of difficulties in convicting persons for whom they
associate with rather than criminal offences they have committed.
The USA, with a 30-year history of anti-gang laws in California followed by about 30 other states, has
seen a rise in gang violence and membership despite a nationwide decline in crime. A Justice Police
Institute study of gangs in 17 USA jurisdictions9 over the past two decades yielded few examples of
success (generally short-lived) and many of failure. The problems highlighted included:
1. Lack of correspondence between the problem (usually lethal/serious violence) and the law
enforcement response that targets low-level and non-violent misbehavior.
2. Resistance or incapacity on the part of key agency personnel to collaborating and implementing
the strategy as designed.
3. Evidence that the intervention had no effect or a negative effect on crime and violence.
4. A tendency for any reductions in crime or violence to evaporate quickly, often before the end of
the intervention period.
5. Poorly designed evaluations that make it impossible to draw any conclusions about the effect of
an intervention.
6. Failure of replication efforts to achieve results comparable to those of pilot programs.
7. Severe power and resources imbalances between law enforcement and community partners that
hamper the implementation of social intervention initiatives for balanced gang control. .
Commissioner Owen Ellington, in supporting anti-gang legislation, said that Jamaica needed to bring its
legislative framework in line with other countries that were confronting similar problems 10. It would be
instructive if Commissioner Ellington were to produce research data to show success of anti-gang laws in
9 Getting Less for More: The Failed Legacy of Gang Enforcement published by JusticePolicy Institute
http://www.justicepolicy.org/images/upload/07-07_Ch7_GangWars_GC-PS-AC-JJ.pdf

10 Ellington wants new law to deal blow to gangs, organised crime published in the Jamaica Gleaner February 8,
2012http://jamaica-gleaner.com/gleaner/20120208/lead/lead8.html

18

those other countries. It would be even more instructive if those countries had gang cultures
comparable to Jamaicas.

Common but unhelpful beliefs about criminology

Despite evidence to the contrary, many continue to believe that:
A. Punitive measures scare off gang members and prospective gang members;
B. The threat of incarceration will deter gang members and make them refrain from committing
crimes;
C. Police and prosecutors can distinguish between gang members and non-gang members;
D. Gang- related crime can be reduced by taking off the street persons the police and the prosecution
judge to be gangsters;
E. Long prison sentences for those termed gangsters will reduce crime, make communities feel
safer, and make youth less likely to join or remain in gangs
A 1998 study11 commissioned by Jamaicas Ministry of National Security concluded that gang
suppression legislation might not be a viable solution. Nonetheless, the government and opposition are
united in their determination to pass anti-gang legislation in the form of this Bill now before the Joint
Select Committee. Police officials have supported this position, claiming that such a law would enable
them to arrest persons based on their gang-related behaviour rather than on specific offences committed.
Researchers Glaister Leslie and Robert Muggah12 have linked the militarized response of the Jamaican
government to the fear and frustration felt by the countrys middle and upper classes. These researchers
pointed out that it is easier for the countrys political elite to support punitive measures to control
deviants than challenge the deep-seated political corruption and neglect that facilitated the emergence of
gangs to begin with.
11 Confronting the Don: The Political Economy of Gang Violence in Jamaica written by Glaister Leslie and
published by the Small Arms Survey in Switzerland in 2010 http://www.smallarmssurvey.org/fileadmin/docs/BOccasional-papers/SAS-OP26-Jamaica-gangs.pdf

12 Jamaica's war on gangs written by Glaister Leslie and Robert Muggah and published in Open Democracy on
September 13, 2010http://www.opendemocracy.net/opensecurity/robert-muggah-glaister%C2%A0leslie/jamaicaswar-on-gangs

19

Scholars such as Professor Anthony Harriott at the University of the West Indies contend that the sheer
diversity of Jamaican gangs warrants a more sophisticated approach13. Indeed, a close inspection of
traditional approaches to gangs (draconian law and militarised policing) reveals that while they may
successfully fill prisons with young men, they do little to deter criminal violence.

Social justice methods

Social justice methods of addressing gangs and gang members are based on beliefs that:

Crime and criminality are associated with social and economic systems that frustrate and alienate

those most at risk, and perpetuate injustice for the poor.

Gang membership attracts youths who lack social, economic, and educational opportunities, have
easy availability of firearms and see proof of impunity for committing crime because of policing

seems to rely on force rather than investigative capacity.

Punitive legislation and aggressive policing tend to create a pool of ready recruits for gangs.
Efforts to prevent or solve crime require socio-economic change.
The State needs to pay attention to addressing root causes and re-ordering society so all have a

stake in national development.

Violence reduction will provide positive social outcomes.
Failure to address root causes will result in failure of punitive legislation and aggressive policing.
Risk factors such as poverty, inequality, and unemployment require primary attention, especially
with respect to the national budget.

There have been many social interventions in Jamaica, some by the State and some as a result of
partnerships between the State and civil society. Included are interventions from:
1. Non-government organisations, any of whom struggle to survive in todays economy.
2. Private sector foundations that may have limited reach.
3. The Peace Management Initiative (PMI), established 2002, is the only State-financed initiative
that interacts directly with gangs. The work of PMI is currently limited by funding constraints.
4. The Community Security Initiative (CSI) established 2005 was designed as a State mechanism
for re-introducing services into volatile communities after the police had removed the top
leadership of a gang.
5. The Citizen Security and Justice Programme (CSJP), established 2001, provides violenceprevention strategies in literacy, conflict resolution, and improving community infrastructure.
13 Ibid
20

These programmes all aim at improving social and economic conditions in depressed communities. Only
the PMI directly targets community violence.
There are also international agencies, such as The European Commission (EC), the US Agency for
International Development (USAID), the Canadian International Development Agency, and DFID that
provide donations for Jamaican entities engaged in implementing programmes to address gang violence.
The JCF has launched and re-launched a number of community-policing initiatives in the past two
decades. However, community policing is in sharp contrast to the traditional paramilitary and reactive
style of policing that is the JCFs default position. Researcher Dr Herbert Gayle stated, based on his 2011
study14:
Even though the JCF has sought since 1998 to move away from reactive, paramilitary responses
to crime and disorder and embrace community-based policing and intelligence-led policing
strategies and tactics, there has not been enough of a culture shift either within or outside of the
Force to reduce the dependence on deadly force.
As a result of reliance on the paramilitary approach to policing, there are no long-term measures in place
to bring together police and communities in finding solutions to crime and ending tolerance
for/acceptance of/inability to disclose information about criminal activity.

Impact of the economy on criminal activity

A United Nations study15 of crisis countries, including Jamaica, concluded that:
1. Changes in economic factors were associated with changes in crime,
2. These changes led to identifiable crime peaks during the time of crisis.
3. Violent property crime types such as robbery appeared most affected during times of crisis, with
up to two-fold increases in some contexts during a period of economic stress.
4. In some contexts, increases in homicide and motor vehicle theft were also observed.

14 http://www.jamaicaobserver.com/news/Citizens-also-to-blame-for-policekillings_9122444#ixzz2d6ENfasL
15 Monitoring the Impact of Economic Crisis on Crime published by the United Nations Office on Drugs
and Crime http://www.unodc.org/documents/data-and-analysis/statistics/crime/GIVAS_Final_Report.pdf
21

These findings were said to be consistent with criminal motivation theory, which suggests that economic
stress may increase the incentive for individuals to engage in illicit behaviours.
In May 2013, the International Monetary Fund (IMF) approved Jamaica's application for a four-year
extended fund facility. Repayment of this US$2 billion loan will require cuts in expenditure. As a result,
jobs have to be removed, wage bills have to be cut, and social programmes have to be curtailed.
The full effect of the IMF loan arrangement is yet to be felt. However, recently released figures 16show an
increased official unemployment rate of 16.3 per cent, up by about 3 per cent and a record high. The April
2013 Labour Force Survey showed only 0.8 per cent of new entrants to the labour force found jobs. At the
same time, the Jamaican dollar is sliding (now valuing below US$0.01. The cost of basic foods has
increased, and there are impending rises in bus and taxi fares as well as utility bills.
About 20 per cent of the population is below the poverty line and not all who are under the poverty line
are getting benefits from the Programme for Advancement Through Health and Education (PATH).
Further, criteria for benefiting from PATH eliminate those who may, for example, have a flush toilet or a
television set in their homes. For those who qualify, benefits are minimal especially compared to a rising
cost of living.
Increased hardships are ahead, particularly for communities that were already depressed, mistrustful of
the police, and prone to joining or supporting gangs. Conversely, placing the police at odds with
communities because of flawed legislation will militate against economic recovery.

16 Finance Minister to Review Unemployment Figures with STATIN published by Jamaica Information Services
August 22, 2013 http://www.jis.gov.jm/news/leads/34847

22

Apparent reasons driving demand for this Bill

The consensus by government and opposition that this Bill is needed would suggest that social
interventions have not produced the expected results. Further, despite the numerous efforts, rates of
violent crime have continued to rise after a dip after the 2010 Tivoli Gardens incursion and State of
Emergency.
It would appear (Laurent 2007) that the State has paid insufficient attention to critical areas such as social
and educational development; grassroots economic opportunity; law enforcement; and strengthening
resident participation in community governance. Crime control initiatives led by the State have therefore
not so far been effective. Reasons arguably include17 non-cooperation between residents and police;
police resorting to illegal means that compromise the authority and legitimacy of the system; and
corruption among politicians and police personnel (Harriott, 2009)
The Criminal Justice (Suppression of Criminal Organisations) Bill therefore seems based on:

Apparent lack of awareness or ignorance of available local and international research and data.
Apparent absence of reliance on data related specifically to Jamaican gangs and gang

membership, as well as root causes for criminal activity;

Absence of clear definition of gang and gang member as relates to the Jamaican context.
Absence of indication that Jamaicas current economic crisis will negatively impact the most

vulnerable, providing them with declining opportunities for employment.

Pursuit of measures that have failed in the past and in other countries;
Beliefs (in particular about criminology) that have proved to be erroneous;
Reliance on traditional methods of draconian legislation and paramilitary policing that have so far

failed to control criminal organisation and seems to have the opposite effect of escalating it;
Reluctance to adopt new human developmental approaches to addressing crime.

17 Ibid
23

The Bill
This Bill is considered to be flawed mainly because of difficulties of defining criminal organisation in
unambiguous terms; the absence of clarity in grounds for arrest, and the requirement that trials be in
camera and judge alone. In addition, this Bill seems to have been drafted by cutting and pasting sections
from overseas anti-gang legislation18, and without direct reference to the complex and highly nuanced
Jamaican environment. Most crucially, this Bill violates guarantees provided to Jamaicans in international
instruments such as the American Convention on Human Rights and the International Covenant on Civil
and Political Rights.
The Bill, as it stands, therefore seems unlikely to better contribute to national security (and therefore
national development) than any of the draconian legislation of the past 40 years.

Definition of terms
A criminal organisation is defined as any gang, group, alliance, network, combination or other
arrangement among three or more persons (whether formally or informally affiliated or organised and
whether or not operating through one or more bodies corporate or other associations) that
(a) Has as one of its purposes the commission of one or more serious offences; and
(b) In relation to which the persons who are a part thereof or participate therein (individually, jointly,
(i)

or collectively)
have engaged in unlawful activity in order to obtain, directly or indirectly, a financial or other

(ii)

material benefit or to gain power or influence; or

issue threats or engage in conduct to create fear or to intimidate or to exert power of influence
in communities, or over other persons;

This definition of criminal organisation is particularly troubling because:

18 Statutory Definitions in the United States. Please note that the United States has no consensus on the definition
of gang or gang member. http://www.streetgangs.com/laws/statesdefined.html

24

1. Criminal organisation is associated with terms that are themselves vague and indeterminate.
There is no consensus on the definition of gang, let alone group, alliance, or network.
According to a paper published by Centre for Juridical Sciences, Brazil 19:
It is therefore very difficult to reach a consensus on the appropriate use and meaning of
the term organized crime. Suggestions have been made that this concept, suspected of
being a vehicle for ideologically motivated repression of individuals and social groups,
an enemy artificially created but ill-defined, should be abandoned. This, however, has
not happened.
2. Repression of criminal organisations implies legal measures that may conflict with
fundamental rights and freedoms such as the right to privacy, freedom of communication, and
freedom of movement.
3. The vagueness of the terms leaves room for arbitrary decisions on who is or is not a gang
member. As a result, steps taken may be incompatible with the constitution, and may even
become abusive of civil rights and liberties.
4. In the absence of a clear definition of criminal organisation activities and groups of individuals
who are not involved in organised crime and do not pose any significant threat to public security,
may be criminalized.
5. Persons in formal or informal groups (persons who come together for recreation, or as members
of sports or community clubs, or more than two persons travelling in a motor vehicle) risk being
mistaken for gang members.
6. It is unclear what evidence will prove that a gang had commission of serious offences as its
purpose. However, if such proof exists, then there are already laws under which such a person or
groups of persons could be charged.
7. Similarly, if individuals have engaged in unlawful activity or have issued threats of any sort,
there are already offences with which those individuals could be charged.
8. Most importantly, persons will be punished for what they are (members of a criminal
organization) rather than for what they do (engagement in criminal activity).
9. It allows governments and the security authorities to arbitrarily categorize any group of persons
as a gang, if/when it suits their purpose.
Grounds for arrest

19 Organized crime and gang violence in national and international law written by Pierre Hauck and Sven Peterke
and published June 2010 by the Centre for Juridical Sciences (CCJ), Federal University of Paraiba (UFPB),
Brazil.http://www.icrc.org/eng/assets/files/other/irrc-878-hauck-peterke.pdf

25

Section 15 (1) provides grounds for arresting persons who use a common name or identifying symbol,
tattoo or other physical marking, colour or style of dress or graffiti or produce, record or perform songs to
promote or facilitate the criminal activity of a criminal organization.
This section is problematic because:
1. Jamaican gangs are not known to have identifying symbols, tattoos, dress, or graffiti. On the
other hand, biker gangs of Canada and Australia, and USA gangs such as Crips and Blood do
have special ways of identification.
2. Those who wear current street fashions may be at risk of being arrested because of appearance
rather than engagement in criminal activities.
3. In addition, people could risk arrest if they record or perform songs that could be construed as
promoting criminal activity of a criminal organisation. Songs such as Bob Marleys I shot the
sheriff, the rude boy songs of the 1960s, or Buju Bantons Murderer may be disallowed by
law.
4. Further, this section of the Bill could threaten the fundamental right of free speech.

According to Section 6 (c), in determining whether someone has been guilty of a offence
under this proposed legislation, a judge can consider (e)vidence that the person has been
arrested and charged for a criminal offence on more than one occasion in the company of a
person or persons known to be a part of a criminal organization.
This clause is particularly problematic as it targets persons who have already been punished
for criminal offences.
Judge-alone trials in camera
Section 18 gives the court the jurisdiction to try offences under this Act by a judge sitting without a
jury and without preliminary examination or committal proceedings. Members of the public, apart
from police, the accused, the attorney of the accused, will not be permitted to attend the trials. Major
concerns about this section of the Bill are as follows:
1. Justice behind closed doors can infringe rights to fair trial and further damage public
confidence in the justice system. It is understood that trials may be closed to the public in
exceptional cases. The balance between open and closed trials could be achieved by relying on
judges to evaluate each case to determine danger to the public interest, as in rape cases, cases

26

involving juveniles, cases that present a high probability of security risks, or cases involving
sensitive or classified information.
2. Justice should be the purview of judges and not politicians. Judges ought to be able to
consider all alternatives to closing a courtroom, so as to protect a defendants right to a fair trial.
Standards for closure should be high, and should be set by the judiciary (case by case) rather than
the executive (catch all).
3. There is no objective data showing that open trials are impeding delivery of justice. A
British jurist once said, "Not only must Justice be done; it must also be seen to be done." That
aphorism holds true today. Open trials are therefore considered as conducive to building public
confidence in Jamaicas justice system because:
An open trial suggests a fair hearing; and
In a democratic society, the public benefits from being able to witness courts of law in
action.

Violation of international conventions

Articles in both the American Convention on Human Rights (ACHR) and the International Covenant on
Civil and Political Rights (ICCPR) guarantee Jamaicans the following rights:
a. Right to humane treatment: punishment must not be extended to any person other than the
criminal.
b. Right to fair trial: trials must be public except where necessary to protect the interests of justice.
c. Right to privacy (already seriously infringed by the Money Laundering Act): there should be no
arbitrary interference in someones private life, family, home, or correspondence.
d. Right of peaceful assembly, with such exceptions as may be required to protect the public.
e. Right to freedom of association: no law is to be applied so as to prejudice this right.
These rights can be abrogated for a limited time in a State of Emergency.

Likely effect of this Bill

27

According to a study conducted by the Justice Policy Institute 20, research shows suppression tactics are
counter-productive where gangs are concerned. Measures that are intended to cause youths to think
twice will often have the opposite effect:
Reinforcing gang cohesion;
Elevating the gangs importance;
Strengthening an us versus them mentality; and
Creating heroes or martyrs out of gang members who are incarcerated.
The research shows that prison tends to solidify gang involvement and weaken an individuals capacity
to live a gang- and crime-free life.
This Bill therefore appears destined to be problematic with respect to vagueness of definition of terms;
questionable grounds for arrest; likelihood of strengthening rather than dismantling gangs; likelihood of
increasing mistrust of justice and security systems because of closed trials; and possibility of
constitutional because of the Bills infringements of fundamental rights and freedoms.

20 Getting Less for More: The Failed Legacy of Gang Enforcement published by JusticePolicy Institute
http://www.justicepolicy.org/images/upload/07-07_Ch7_GangWars_GC-PS-AC-JJ.pdf

28

APPENDIX

Anti-gang legislation in other countries

The experience of countries with anti-gang legislation can deepen understanding of what has
worked, what has not worked, and what is unlikely to work or likely to worsen the Jamaican
crime situation.

United States of America

California passed the Street Terrorism Enforcement and Prevention Act (STEP Act) in 1988. Since then,
about 30 other states - have enacted similar legislation. Despite legislation, studies show that gang
activity continues to be a widespread problem across the United States. According to the FBI 21, about
33,000 violent street gangs, motorcycle gangs, and prison gangs with about 1.4 million members are
criminally active in the U.S. today. Gang-related violence has not followed the downward trend in
violent crime nationally22.
.

El Salvador
El Salvadors Gang Prohibition Act doubled the maximum prison sentence for minors, declared gang
membership illegal, and gave the authorities permission to freeze bank accounts and seize the assets of
gang members.
A Salvadoran Attorney General said that prosecutors were not implementing the anti-gang law as they
had not been presented with enough evidence to charge arrested gang members 23. Other critics of the law
21 FBI: They poison our streets with drugs, violence, and all manner of crime accessed July 24 2013
http://www.fbi.gov/about-us/investigate/vc_majorthefts/gangs
22 Comprehensive Anti-Gang Initiative published by Office of Juvenile Justice and Delinquency
Prevention and accessed July 25, 2013 http://www.ojjdp.gov/programs/antigang/
23 El Salvador Prosecutors Reveal Use of Anti-Gang Law During Truce published on May 31,2013
http://www.insightcrime.org/news-briefs/el-salvador-prosecutors-use-of-anti-gang-law-during-truce

29

said police used the law to round up gang members in mass arrests, but that these arrests rarely result in
successful prosecutions.

Canada
Canadas anti-gang legislation, known as Bill C-9524 was passed in 1997 and targeted biker gangs. The
first conviction under this law was not won until 2001. In 2005, an Alberta judge ruled that police
violated bikers constitutional rights during a 1997 roadside check.

Australia
Anti-gang legislation in Australia, as in Canada, targets motorcycle gangs. On November 10, 2010, the
South Australian High Court ruled as unconstitutional the anti-gang laws that targeted certain
organisations and members of those organisations. 25 On June 23, 2011, the Australian High Court
declared the New South Wales anti-gang law (based on South Australia legislation) to be invalid 26.

Trinidad & Tobago

Trinidad & Tobagos anti-gang legislation was promoted in 2011 as an essential measure in the
Government's anti-crime drive. Passing such draconian legislation needed a special majority in
Parliament. However, the then Attorney General said desperate times required strong measures. He said,
This legislation has teeth that will bite deep into the flesh until we reach to the very bone of this problem
and crush it."27

24 Canada's anti-gang law published in CBC News Online April 10, 2006 and accessed on August 21,
2013 http://www.cbc.ca/news/background/bikergangs/antiganglaw.html
25 Draconian South Australian anti-bikie laws declared invalid by High Court published in the Australian
November 11, 2010 http://www.theaustralian.com.au/news/nation/draconian-south-australian-anti-bikie-lawsdeclared-invalid-by-high-court/story-e6frg6nf-1225951771901

26 Australia: High Court Declares Anti-Gang Law Invalid published by the Law Library of Congress
http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402724_text
30

Former attorney general of Trinidad, Ramesh Lawrence Maharaj, has described the Anti-Gang Act as
flawed.28 He said, The Act ought to be looked at urgently. The definition is circular and that is the
route of the matter because if gang and gang-related activities cannot be properly defined in criminal law
that is the end of the matter. This is not something that could be done rushed because we are going to
encounter problems.
After the anti-gang legislation was passed, the police quickly arrested about 463 persons. However, the
courts freed virtually all of them for lack of evidence. It was then decided that the police needed special
training in implementing the law, and training was provided. However, no one has been arrested under
this Act since September 2011. The only case of conviction under the anti-gang law occurred in July
201329.

27 Time to revisit the Anti-Gang Act published in the Trinidad Express December 11, 2011
http://www.trinidadexpress.com/commentaries/Time_to_revisit__the_Anti-Gang_Act-135417273.html
28 Anti-Gang Act flawedRamesh published in the Trinidad Guardian November 7,
2011http://www.guardian.co.tt/news/2011/11/06/anti-gang-act-flawed-ramesh

29 South man jailed under anti-gang law published in the Trinidad Guardian July 13,
2013http://www.guardian.co.tt/news/2013-07-13/south-man-jailed-under-anti-gang-law

31