Excerpted From: Beth Caldwell, Reifying Injustice: Using Culturally Specific Tattoos as a Marker of Gang Membership, 98 Washington Law Review 787 (October, 2023) (360 Footnotes) (Full Document)

BethCaldwell.jpegThe Equal Protection Clause of the United States Constitution prohibits discrimination based on race, ethnicity, or national origin. And yet, U.S. law and its enforcement mechanisms continue to perpetuate longstanding historical racial disparities that systematically disfavor Black, Indigenous, and Latino people. Racial inequality persists under the law even though racial discrimination is constitutionally barred. This is the tragedy of civil rights law in the United States today. As Professor Derrick Bell warned decades ago, the U.S. legal system is structured in such a way that gains for racial equality will be “short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance.”

An example from New York demonstrates how Professor Bell's theory has played out in the context of racially discriminatory policing. A New York court forced the New York Police Department (NYPD) to change its stop and frisk policy because it was either “applied in a discriminatory manner” or amounted to “express racial profiling, targeting young [B]lack and Hispanic men for stops based on the alleged criminal conduct of other young [B]lack or Hispanic men.” On the surface, this would seem like an important step in the direction of racial equality. But the NYPD responded by creating Operation Crew Cut, a “war on gangs” fueled by a “'secret’ gang database.” Gang crime was then used as a pretext to “develop[] a policing tactic that is race-based in practice, race-neutral on its face, and 'avoids both public and judicial scrutiny.”’ Thus racial profiling was able to persist through a different legal mechanism, making the limits the court placed on the stop and frisk policy largely irrelevant.

Operation Crew Cut exemplifies how the law allows racial inequality to persist through policies that appear to be facially race-neutral, but that are actually used as tools of racial subjugation. Nowhere are racially disparate impacts more pervasive than in the criminal justice and immigration systems of the United States. Black people are incarcerated at a rate of 2,306 per 100,000; Latino people at a rate of 831 per 100,000; and white people at a much lower rate of 450 per 100,000. In the immigration context, nearly all of the people the United States deports are Latino, and a disproportionate number are Black. Myriad policies, both formal and informal, overlap to create legal systems that systematically under-protect and over-criminalize Black and Latino people. And yet, the law allows these gross racial disparities to stand.

The use of code words that give racially-biased policies the appearance of legitimacy play an important role in this process. Words such as “inner city,” “ghetto,” “thug,” or “gang,” “are so imbued with racial meaning that they can and do convey racist ideas and attitudes beneath a veneer of neutrality or objectivity.” Through the use of racial code words or “dog whistles,” the racial animus motivating the differential treatment is obscured and is placed out of reach of judicial intervention. This Article focuses on one of these racially coded constructions-- the concept of “gang” or “gang member.”

No one seems to be able to agree on how to define what a “gang” is, but the term generally refers to a group of people who engage in a pattern of criminality with some kind of unified name or symbol. Although a wide variety of group behavior could conceivably count as gang activity given how broad the definitions tend to be, only the behavior carried out by people of color tends to be categorized as gang-related. The gang label has been so highly racialized that white people who self-identify as gang members are almost never categorized as “gang members” by law enforcement, while Black and Latino people who are not gang members are routinely labeled and targeted as if they were. Self-reported data--widely accepted among criminologists to be the most accurate--indicates that approximately forty percent of gang members in the United States are white. However, ninety-nine percent of those listed in the New York Police Department's gang database are reportedly Black and Latino, and ninety-six percent of those listed in Chicago's gang database are Latino or Black. In Los Angeles County, ninety-eight percent of those who have been sentenced to prison with gang sentencing enhancements are people of color. In Mississippi, the Association of Gang Investigators reported that fifty-three percent of the gang members in the state are white, but everyone arrested under the state's gang law between 2010 and 2017 was Black. Nationally, as of 2007, “African Americans and Latinos were roughly 15 times more likely than non-Hispanic whites to be identified by the police as gang members.” The evidence is abundantly clear that the gang label is disproportionately applied to people of color.

Once labeled gang members, people are subject to much harsher treatment under the law. Law enforcement resources are poured into arresting people labeled gang members, making this group of people much more likely to be arrested--and subsequently convicted--than others. “Gang members” can be prosecuted for behavior that is not defined as criminal for others. They are more likely to remain in pretrial custody, which often pushes people to plead guilty even when they are not. Courts have even circumvented the long-standing principle of double jeopardy in gang-related cases, such that people have been tried twice for the same conduct. Even evidentiary rules are relaxed, making it easier to introduce unreliable evidence in gang-related cases. Gang members can be sentenced to up to ten years longer in prison for committing the same crime as someone who has not been labeled a gang member. Things are worse in prison for those labeled gang members--they may be housed in prolonged solitary confinement in prison, and may be denied parole because of their alleged gang association. In the immigration sphere, “gang members” may be deported or denied admission to the United States even though they would otherwise qualify for a green card or citizenship, all because of this designation.

Taken together, an entirely different set of rules attaches to people once they are labeled gang members--rules that make it easier to convict people of crimes and to sentence them to longer terms of imprisonment. These rules also make it more difficult to obtain release from prison, and to remain in, or return to, the United States. This different set of rules applies almost exclusively to Black and Latino men. The project of gang labeling is so highly racialized that, at one point, a group of immigration officers characterized the Los Angeles Police Department gang units as “waging war against 'a whole race of people.”’

While well-documented, the unequal treatment of people defined as gang members has not been found to violate the law because the disparate treatment is not explicitly based on race. The gang label is used to justify differential treatment such that it is not perceived as racially biased.

The central premise of this Article is that the law should not allow different rules to apply to people who are labeled gang members because the gang label cannot be divorced from race and culture. And if our society is serious about undoing centuries of racism, this is the kind of policy that needs to be questioned rather than tacitly accepted.

I begin from the premise that many believe that treating gang members differently makes logical sense. After all, we want the legal system to deter people from engaging in gang violence. In order to demonstrate why targeting people labeled gang members for harsher treatment under the law is not the right social response to the problem of gangs, I focus on one concrete example--culturally specific tattoos. I describe the mechanics of how these tattoos are employed to perpetuate systems of subordination that maintain the racial inequalities that have characterized the United States for centuries. The goal is to expose the racialized construction of gang association vis-à-vis tattoos to unmask the invisible ways in which this practice targets people due to their race and national origin in a way that is shielded from judicial intervention. In this Article, I focus specifically on how tattoos symbolizing Latino cultural identity are used to categorize people as gang members.

This analysis is theoretically rooted in Critical Race Studies. According to Devon Carbado, “[p]art of the project of Critical Race [Studies] has been to illustrate not only the role courts play in constructing racial identities, but also the relationship between the construction of race in judicial opinions and the production and legitimation of racial inequality.” This Article addresses both the role the law plays in constructing racial identity through the use of the gang label, and the way in which this construction legitimates racially disparate treatment by framing the problem as if it relates to gangs rather than race.

This is a timely and important project because, in the wake of George Floyd's murder, there have been more widespread calls for addressing racism, particularly in the context of the criminal justice system. However, these calls are unlikely to lead to long-term change unless we address the complex and nuanced systems that maintain racial hierarchies. If processes like imposing harsher rules for people who are labeled gang members continue, the criminal justice system is unlikely to fundamentally change.

I do not deny that gang violence is a social problem that warrants our attention. On the contrary, I have spent much of my life focusing on implementing strategies that have been proven to reduce gang violence and, in the process, I have been personally touched by the tragic loss of young lives that is so often tied to gang activity. But the legal strategies that have been employed to respond to gang violence often do more harm than good by further marginalizing, stigmatizing, and demonizing people who may be more likely to gravitate towards, or remain entrenched within, gangs because of this marginalization. The gang-labeling process and its consequences not only pose normative questions about fundamental fairness under the law, but also raise practical concerns that such treatment is likely to make gang violence worse.

Part I of this Article provides some context about how the law defines people as gang members using markers of racial and cultural identity, which has led to the systematic overidentification of young men of color as gang members. Part II focuses on Chicano tattoos and the role they have played in the construction of a unique Chicano (or Mexican-American) cultural identity in the United States--an identity purposefully distinct from both Mexicans (from Mexico) and white people (from the United States). This Part provides a detailed description of how tattoos that represent Chicano cultural or racial identity, and Latino identity more broadly, are used to label people as gang members based on aspects of their identity that are central to their race or national origin. People are often labeled gang members based on tattoos of cultural symbols that may indicate gang membership for some, but not for others.

Specifically, I discuss four types of tattoos that represent important aspects of Latino identity, but that are regularly used to define people as gang members. First, I discuss how tattoos and symbols of people's racial identities or places of origin, such as “Mexicano” or “Brown Pride,” have been used as evidence of gang membership. Second, I describe the use of tattoos that depict Aztec or Mayan imagery to prove gang membership. Third, I discuss tattoos of Catholic religious symbolism. Taken together, these two groups of tattoos--Aztec or Mayan imagery and Catholic imagery--represent the two sides of the ancestry of most people from Mexico and Central America: Indigenous and Spanish. Finally, I discuss tattoos that are popular in Latino youth culture and that have been conflated with gang membership, but that often do not in fact represent gang identity. The most iconic tattoo discussed here is a tattoo of two clown faces, one smiling and one crying, that is often accompanied by the words “Smile Now, Cry Later.”

Part III introduces the legal framework that allows racism to persist under the law by summarizing the current state of equal protection law and presenting an overview of Critical Race Studies' major criticisms of the way the law has been interpreted to (1) minimize the importance of racially disparate impact and (2) require, in most situations, evidence of discriminatory racial intent. Here, I also discuss how courts have narrowed the understanding of what qualifies as discriminatory racial intent by requiring that explicit discrimination be based on an immutable characteristic of race--a characteristic that people are born with. I argue that this conception of race is fundamentally at odds with how race manifests in our society--through a combination of mutable and immutable characteristics that form people's identities.

Part IV uses the examples of the tattoos discussed in Part II to highlight how courts have interpreted the Equal Protection Clause in a way that systematically fails to protect people from unequal treatment that is clearly tied to race or national origin. Here, I rely on academic literature about tattoos to explain how central tattoos are to people's identities and make the argument that they are central markers of racial or cultural identity even though people are not born with them.

The Article concludes in Part V by considering some interim measures that could curtail the harm that is done by using culturally specific tattoos to attach the gang label. Specifically, I suggest that courts should find evidence regarding culturally specific tattoos such as those discussed in this Article as more prejudicial than probative and should thus exclude any evidence of them in court. In addition, I argue that legislative reforms could bar the use of culturally specific tattoos not only in courtrooms, but also in the different stages of the gang labeling process.

[. . .]

Tattoos that represent aspects of people's cultural and racial identities should not be used to prove gang membership because doing so contributes to the widespread overidentification of Blacks and Latinos as gang members. Once identified as gang members, a different set of rules applies--rules that are much harsher and more punitive than those that apply to the rest of the population. The U.S. Constitution, as it is currently interpreted, is unlikely to meaningfully limit this practice despite clear evidence of racial disparities and evidence that definitions of gang membership often rest on expressions of racial and cultural identity, such as tattoos that say “Chicano” or depictions of culturally significant symbols such as Aztec warriors or the huelga bird. The current legal framework's unwillingness or inability to address a practice that so clearly imposes different treatment--and harsher punishment--based on markers of racial and cultural identity points to the need for reconsidering the constitutional approach to equal protection claims and the need for legislative change.

Professor of Law, Southwestern Law School.