In Bermuda, we have gang members shooting rival gang members for revenge, for control of the drug market, and for simple survival—”I need to shoot him before he shoots me.” Getting the gangs to stop shooting and put down their guns amid all this rage and retribution will take a great amount of persuasion. Many concerned people, from family members to friends to community leaders, will have to use up a large amount of goodwill and trust to convince these men that a truce will be the best thing not just for Bermuda but for each gang member.
However, with great effort, it may be possible to convince the gangs to put down their guns and stop the shooting. The question we must ask ourselves is—What will happen next?
In other words, will the truce have any real chance of lasting any longer than it takes one gang member to lose his temper or sells drugs in an area that is disputed turf or run into a rival gang member that killed his best friend six months ago?
This is an important question because if the truce fails, not only will the bullets again be flying, but all the goodwill and trust that was used up to convince these gang members to agree to a ceasefire will be gone, and the chances of a successful ceasefire in the future will be significantly lower. In other words, we may have only one good shot at a negotiated truce to stop all this madness, so for the sake of everyone, we had better get it right.
So let’s look at the concept of a “gang truce agreement” to make sure we have the essential element in place to give it its best shot to succeed.
A gang truce agreement is not like an ordinary legal agreement (like your mortgage) where each party agrees to certain terms and if one party doesn’t abide by those terms, the other party can go to court for a remedy. Gangs are already acting outside the law, and no court order telling them to keep the peace is going to make one bit of difference whether the trigger gets pulled.
So how do we get around this problem? What form of leverage can Bermuda use to
sanction gangs that breach the truce?
The answer is found by looking at what the United States, Canada and other countries have done before they entered into successful gang ceasefires—they enacted “Criminal Organization” legislation that neutralized the benefits of being in a criminal gang and served as a sanction against any gang that breached the truce.
So what is “Criminal Organization” legislation”?
Criminal Organization legislation is a set of new laws that attach criminal sanctions to specific gang activity in order to counterbalance the benefits criminals gain by acting as a group. Yes, that’s quite a mouthful, so let’s make the definition a little clearer by first looking at the reason for the new laws (i.e., to counterbalance the benefits criminals gain by acting as a group) and then look at how the new laws work.
The “benefits criminals gain by acting as a group” are best shown by two examples of criminals: one who acts alone and one who acts as part of a gang.
A criminal acting alone has only a limited ability to threaten witnesses or jurors because he will usually be imprisoned either before or immediately after the witness gives testimony or the jury convicts, and can then do no harm to these persons until released, which in the case of serious crimes such as murder, would be a very long time, if ever. So the witnesses typically will give evidence to the police and give testimony in open court, and the jurors will typically deliver verdicts without fear, all of which will help send the guilty criminal to
prison and allow justice to prevail.
Conversely, a criminal acting as part of a gang poses a much greater threat to witnesses and jurors because even if the witnesses’ testimony and the jurors’ verdict result in a conviction and long imprisonment of the gang member, his fellow gang members remain at large to harm the witnesses and jurors. So many witnesses are simply too scared to either help police gather evidence or to give testimony in open court, and many jurors are too scared to deliver guilty verdicts, all of which pervert the course of justice.
As a result, it is more difficult to collect evidence against criminals acting in gangs and more difficult to obtain convictions. In other words, criminals benefit from being part of a criminal gang structure, which in turn makes society less safe.
It is for this reason that 147 countries around the world, including Great Britain, Canada and the United States, ratified the United Nations Convention Against Transnational Organized Crime, which advocates the enactment of sweeping legislation by each participating country that specifically targets criminal organizations, including gangs.
To date, Bermuda has not enacted Criminal Organization legislation as envisioned by the United Nations Convention.
Yes, Bermuda has enacted legislation to help fight crime in general, such as the amendment to the Bail Act and Proceeds of Crime Act, but not the Criminal Organization legislation advocated by the UN to prevent gang members from perverting the course of justice by threatening witnesses and jurors and by using coordinated group activities to prevent police detection and prosecution.
That type of legislation is generally made up of two kinds: (i) legislation that makes mere membership in a gang a criminal offence (or association with gang members an offense) often referred to as anti-gang legislation and (ii) legislation that makes certain activities by gang members illegal. The first method—making mere gang membership an offence—would be inappropriate for Bermuda. Right now, some kids in Bermuda are being beaten up on their way home from school until they agree to join a gang. Are we, the next day, to arrest these kids and throw them in jail? Obviously that would be blatantly unfair. These coerced kids need protection not incarceration.
The better method—the method used in Canada—is to attack the gang structure itself by making certain activities by gang members illegal, in particular (i) activities that support the gang structure (e.g., the lookout kid standing watch on the corner, the drug mule delivering drugs, the gun hustler who hides the guns until needed) and (ii) activities that use the gang structure to control the gang’s criminal actions (e.g., the boss who gives orders to commit a crime such as selling drugs or shooting someone).
The Canadian legislation is made up of four categories of gang activities (three of which are deemed criminal):
(i) gang members on the periphery who have committed no crimes nor provided support for the gang to commit crimes will not be subject to criminal penalty, and will be unaffected by the legislation;
(ii) a person (whether or not a gang member) who contributes to the activities of a criminal gang in a way that enhances its ability to commit a crime (e.g., the lookout kid on the corner) will, by taking such action, have committed a criminal offense that is punishable for up to five years in prison;
(iii) a person (whether or not a gang member) who commits an indictable offence for the benefit of, or in association with, a criminal gang (e.g., the gun hustler who hides the guns until needed) will, by taking such action, have committed a criminal offense that is punishable for up to 14 years in prison; and
(iv) a gang member who instructs another gang member to commit a criminal offence for the benefit of or in association with that gang (e.g., the gang boss who orders someone to deliver drugs or shoot someone) will, by giving such instruction, have committed a criminal offense punishable for up to life in prison.
Most important, the Canadian legislation makes it mandatory that each sentence of imprisonment for the above offences runs consecutive to all other sentences. This means that when a gang member is found guilty of selling cocaine or attempting to murder someone, he will be sentenced under Canada’s Criminal Code for a given period of time under the applicable offence (i.e., trafficking or attempted murder) plus he may, if he falls into categories (ii), (iii) or (v) above, be sentenced for an additional period under the Criminal Organization legislation, and that second sentence will only start running once the first sentence has been served.
By creating new offences for activities that either support the gang structure or use the gang structure to control the gang’s illegal operations, and by attaching stiff, consecutively-running sentences for these offenses, the Canadian Criminal Organization legislation has increased the costs of being in a criminal gang and, in doing so, rebalanced Canada’s
criminal justice system, making the country safer for everyone. (In 2009, Montreal—the gang capital of Canada—saw its homicide rate fall to its lowest level since 1981.)
So let’s go back to the central discussion of this article—negotiating a gang truce.
It is pretty clear that a gang truce negotiated before there are sanctions in place to dissuade gang members from breaching that truce is destined to fail. Even worse, this
failure will be expensive for everyone: all that goodwill and trust that was expended on the negotiated truce will be lost forever, making it much more difficult to negotiate a truce when the proper time presents itself.
If, however, before attempting a truce, Bermuda were to enact Criminal Organization legislation such as that used by Canada, the costs of committing a crime while being a gang member would immediately increase, as would the negotiating power of police and prosecutors to plea bargain to obtain guilty pleas and to entice gang members to testify against gang bosses, all of which would rebalance Bermuda’s criminal justice system and make gang life less desirable.
This not only would give gang members a much stronger incentive to ask for a truce—there is not much to gain from the shooting if we are all going to be locked up for a very long time”—but it also will provide a much stronger incentive for gang members to keep that truce because the last thing a gang boss wants is for one of his members to do something
stupid that will cause the boss to go to prison for the rest of his life.
The urgency to end this gang madness should not be directed toward a premature negotiation that is doomed to fail but rather toward enacting Criminal Organization legislation that will facilitate a successful negotiation that has the best chance to last.
And to do that, you have to first convince the Bermuda government to enact the Canadian Criminal Organization legislation as soon as possible.
Kevin Comeau, a Canadian, has lived in Bermuda since 1989 where he worked as a corporate lawyer until his retirement in 1999. Mr. Comeau is the holder of a Permanent Residency Certificate and now directs much of his effort toward the development of social policy proposals, particularly proposals to reduce the gap between the haves and have-nots in Bermuda.