By\u00a0Sean K. Driscoll*<\/p>\n
Gang violence undoubtedly terrorizes residents of neighborhoods like the Parkchester section of the Bronx, New York. But does violence alone make gang members \u201cterrorists\u201d in the eyes of the law? Not according to People v. Morales<\/em><\/a>, a recent decision from the New York State Court of Appeals.<\/p>\n Edgar Morales was an admitted member of the St. James Boys<\/a>, a Mexican-American street gang in the Bronx. In 2002, Morales and other members of the St. James Boys went to a christening party that a rival gang member also attended. Feeling slighted that their rival did not leave, the St. James Boys assaulted him. During the fight, Morales fired five rounds, paralyzing another rival gang member and killing ten-year-old<\/a> Melanny Mendez, a guest at the party.<\/p>\n At trial, Morales faced charges of murder and manslaughter (for killing Mendez), attempted murder (for shooting his rival), and conspiracy. However, in a novel twist, the Bronx District Attorney\u2019s Office charged these offenses as \u201ccrimes of terrorism\u201d under New York State Penal Code \u00a7490.25<\/a>, which enhances sentences for specified violent crimes carried out \u201cwith intent to intimidate or coerce a civilian population.\u201d (The law was passed days after the September 11th<\/sup> terrorist attacks, but had never been used previously.) The prosecution argued that the St. James Boys were \u201cterrorists\u201d within the plain language of the statute because the gang\u2019s \u201cobjective was to carry out a systematic campaign of intimidation in which gang members preyed upon hard working, law abiding citizens, including fellow immigrants from Mexico.\u201d<\/a><\/p>\n A jury convicted Morales of manslaughter, attempted murder, and conspiracy as crimes of terrorism, but acquitted him of the most serious charge: murder in the second degree. Last month, however, the New York Court of Appeals ruled that the terrorism statute was inappropriately applied, and vacated Morales\u2019 convictions because \u201cthe spillover effect\u201d from \u201cthe aura of terrorism looming over the case\u201d<\/a> made his trial unfair.<\/p>\n While many news accounts have depicted the decision as holding that gang violence cannot qualify as \u201cterrorism,\u201d in reality, the New York State Court of Appeals held only that Morales\u2019s specific actions did not meet the elements of \u00a7490.25, for two reasons<\/a>. First, the prosecution offered no proof that shooting a rival gang member\u2014as opposed to an indiscriminate act of violence against the public\u2014was intended to intimidate the neighborhood\u2019s civilian population. Second, the Court rejected arguments that a rival gang could qualify as a \u201ccivilian population\u201d under the statute. If the Court were to rule otherwise, Justice Graffeo warned, \u201cthe People could invoke the specter of \u2018terrorism\u2019 every time a Blood assaults a Crip.\u201d<\/a><\/p>\n Notably, however, the Court left open the possibility that gang violence targeting civilians could qualify as \u201cterrorism\u201d under \u00a7490.25. The opinion quoted legislative history implying that crimes targeting a small geographic area or a sub-population based on ethnicity or religion (citing the 1994 killing of Ari Halberstam<\/a>) could fall within the terrorism statute\u2019s ambit.<\/p>\n Given the legal risks\u2014and sheer novelty\u2014why did Bronx prosecutors charge Morales as a terrorist? The answer is simple: mandatory minimum sentences. Under the New York State Penal Code\u2019s sentencing provisions<\/a>, manslaughter and attempted murder are class B felonies, carrying a minimum sentence of only one year in prison (with discretion given to the sentencing judge). The terrorism enhancement elevated Morales\u2019 convictions to class A-1 felonies, guaranteeing a minimum sentence of twenty-five years. (This disparity has prompted some commentators to argue that legislators should pass gang-specific sentencing enhancements<\/a>.)<\/p>\n In the end, however, People v. Morales<\/em> may be a lesson for prosecutors not only on the limits of what crimes constitute \u201cterrorism,\u201d but also on the risks of letting juries \u201cchoose\u201d between higher and lower charges. Had the jury convicted Morales of murder in the second degree\u2014instead of manslaughter\u2014for killing Melanny Mendez, he would have faced twenty-five years to life even without<\/em> the terrorism enhancement. However, despite convicting Morales of intentionally shooting his rival and causing the death of Melanny Mendez with a stray bullet\u2014which together satisfies all of the elements of second degree murder<\/a> (by transferred intent<\/a>)\u2014the jury acquitted Morales of murder, choosing the lower manslaughter charge instead.<\/p>\n * J.D. candidate, Harvard Law School, 2013; B.A., University of Virginia, 2004.<\/p>\n","protected":false},"excerpt":{"rendered":" Sean K. Driscoll: The New York State Court of Appeals has made clear that the definition of “terrorism” does not encompass gang violence. Photo courtesy of Getty Images.<\/i><\/p>\n","protected":false},"author":20,"featured_media":3710,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[24,29],"tags":[],"class_list":["post-3708","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-online","category-student-articles"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/journals.law.harvard.edu\/nsj\/wp-content\/uploads\/sites\/82\/2013\/02\/terrorizers.jpg?fit=640%2C360&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-XO","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/3708","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/20"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=3708"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/3708\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media\/3710"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=3708"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=3708"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=3708"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}