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Republican Attorney General Rob McKenna's Gang Bill Is Bad Policy—but Great Politics

by Eli Sanders

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The American Civil Liberties Union is upset, liberal state legislators are wary, and social justice advocates are crying foul. At the same time, police officers from rural communities are thrilled, mothers of victims of gang violence are applauding, and at least one conservative Democratic legislator who used to be a cop, Representative Christopher Hurst of Enumclaw, is impressed.

What more could Attorney General Rob McKenna, the all-but-certain Republican candidate for governor in 2012, ask for?

The best part for him: All he had to do to achieve this fortuitous constellation of political reaction was submit a bill to get tough on street gangs. Presto: He's standing in the middle—the place Rob "Sensible Moderate" McKenna loves to be—swatting back at complaints from civil libertarians while telling grieving mothers that he's merely trying to make their communities safer.

"It plays well politically," admits Shankar Narayan, the man leading the ACLU of Washington's opposition to this bill.

What, exactly, does McKenna's anti-gang bill do?

It ups the sentences for gang-related felonies (doubling them when a gang-related crime occurs near a school), requires more supervision of people convicted of gang-related felonies once they're released, and makes graffiti a Class C felony rather than a misdemeanor. Most controversially, it lacks any money for community intervention efforts that might keep people from joining gangs in the first place, but it does allow prosecutors the ability to obtain what are essentially restraining orders against people prosecutors think are gang members.

These restraining orders, which could be used to prevent members of criminal street gangs from returning to certain areas or neighborhoods, are modeled on similar rules in other states, including California (where they have also drawn concern from civil libertarians). The problem, says Narayan of the ACLU, is that the orders would be obtained through a civil court proceeding, meaning that people accused of being gang members—many of them likely unable to afford a lawyer—wouldn't be provided with public defenders to help them rebut the charges.

"This approach will sweep up innocent people and order them into court where they will have no right to an attorney and no realistic opportunity to show they are not gang members," says an ACLU e-mail blast to supporters, asking them to send letters to state legislators protesting the bill.

In other words: A person who is not a gang member could easily become a convicted criminal, simply for returning to his or her neighborhood.

The attorney general's office disputes this in its own e-mail blasts to reporters. And ever since an emotional January 19 hearing on McKenna's bill in front of Representative Hurst's House Committee on Public Safety & Emergency Preparedness, the dueling fact sheets have been flying.

A January 21 fact sheet from the attorney general's office argued that because domestic violence restraining orders are run through civil courts, it is therefore "inconsistent" for the ACLU to think gang restraining orders can't be run this way, too. "Meanwhile, the violence continues," the attorney general's fact sheet declared, detailing how a young girl was recently shot in Sunnyside during a suspected spree of gang violence.

Later that day, the ACLU shot back with its own fact sheet saying: "Gang violence is a scourge in our communities, but the AG's bill would not help reduce it." The ACLU said it was "illogical" to compare domestic violence restraining orders (which require proof of a threat of imminent harm) to gang restraining orders (which don't), and it called McKenna's bill a storehouse for tactics that "have failed to stem the tide of gang involvement or violent crime."

It's not clear how the measure will fare during this long legislative session, set to run through the end of April and focused mainly on a $4.6 billion budget shortfall. One thing to watch is how Seattle-area law enforcement officials—and Seattle-area legislators—react. This liberal city is not exactly McKenna's political power base, but it does have the biggest gang problem of anywhere in the state and its legislators serve on some key committees that McKenna's bill might pass through. Senator Adam Kline, who chairs the Senate Judiciary Committee, wouldn't comment on McKenna's bill, and neither would the Seattle mayor's office. But one person who works in Seattle-area law enforcement said the bill is "more about politics than public safety and won't do anything to seriously address the gang problem."

Even so: It's great for McKenna. If he wins this fight, rural law-and-order types and victims of gang violence love him. If he loses this fight? Rural law-and-order types and victims of gang violence still love him—and see all the more reason to give him greater power.