Boogaloo boys, Oath Keepers and Proud Boys are often referred to as alt-right militias who appear at demonstrations wearing military fatigues, Kevlar vests or polo shirts.

But that attire is not singled out in Alabama legislation that aims to increase criminal penalties against gang members. Tattoos and certain street clothing, however, are listed as an identifying feature of a gang member. Those features could lead to stepped-up penalties for people participating in crimes benefiting a gang, according to the legislation.

The differences are sparking a racially charged statehouse debate pitting Alabama’s mostly Black Democratic Caucus against the mostly white Republican supermajority.

The State House showdown boils down to the definition of a gang and gang members as specified in legislation that would enhance criminal penalties against people who commit crimes and who are identified as a member of a gang.

“There isn’t a bill more important than this one to me,” said State Senator Rodger Smitherman, D-Birmingham. “This is taking a whole race of people and throwing them into another category.”

Emotions were high on Wednesday while the legislation was debated in the Senate Judiciary Committee. The issue prompted one Democratic lawmaker to urge his Republican colleagues to scrap the word “gang” and replace it with “criminal enterprise,” which the Alabama Attorney General’s Office – the agency pushing for the legislation – says it would not object to doing.

“Let’s also look at using language to include terrorist groups, the mafia, and hate groups,” said Senator Bobby Singleton, D-Greensboro. “Not just gangs.”

Profiling or protection?

The two bills – SB143 and HB191 – advanced out of the House and Senate Judiciary committees within the past two weeks. The committees approved the bills despite anguished opposition from Black lawmakers who say the definitions of a gang member is akin to “legal profiling.”

Both bills also add enhanced penalties for using or possessing a gun when committing a crime while promoting gang activity. They also would charge juveniles over 16 as an adult if they are participating in any gang-related crime.

Supporters say the legislation is merely using a definition of a gang that has been established in Alabama since 1998. The identifiers for a “gang member,” they say, are used by the federal government and mirrors other states.

“It’s not something new nor originated here,” said State Rep. Allen Treadaway, R-Birmingham, sponsor of HB191. “It’s something we are learning from what others are doing to try and address the violent crime and dealing with individuals affiliated with gangs.”

The legislation has the backing of over 160 law enforcement officials in Alabama and its introduction comes at a time when violent crime, specifically shootings, continue to plague the state’s cities.

Alabama has no law on the books aimed at combatting or deterring gang activity and gang violence, according to an April 11 letter signed by the law enforcement officials.

The legislation would elevate any felony committed to promote the interest of a gang automatically to its next highest level. The same would apply to the use of firearms intended to promote gang activity. The legislation states that gun-related gunplay will result in no less than 5 years and up to 30 years of imprisonment.

“Far too many Alabamians feel unsafe in their own neighborhoods because of gang violence,” Marshall said in a statement to AL.com. “That’s why this legislation has received broad bipartisan support from police chiefs and sheriffs statewide.”

‘Racial undertones’

Defining who could be a gang member is based on what’s already defined through federal and state laws dating back to the 1994 federal crime bill that led to stricter punishments for gang members.

Alabama is one of 43 states including Washington, D.C., which have some sort of definition for gangs that closely follows federal language, according to the National Gang Center.

The federal definition labels a gang as an association of three or more individuals who collectively adopt some sort of group symbol or identity (examples include sign language, colors, names), and engage in criminal activity.

Under HB191 and SB143, a “gang member” is defined as someone who meet one or more of the following: admits to membership in a gang, identified as a gang member by a parent or guardian, or is identified as gang member by an informant.

Seven identifying criteria are then included within language of both bills. At least three or more of the following must be met to be identified as a gang member:

• Adopts the style of dress of a gang.
• Adopts the use of a hand sign identified as used by a gang.
• Has a tattoo identified as used by a gang.
• Is identified as a gang member by physical evidence.
• Has been observed in the company of one or more known gang members four or more times.
• Has authored communication indicating responsibility for the commission of any crime by a gang.

Matthew Valasik, an associate professor in the Department of Criminology and Criminal Justice at the University of Alabama, said there are “definitely racial undertones” with the gang definitions utilized in Alabama and elsewhere. He also said there are “class undertones” as well.

“At LSU, there was an individual who died from a hazing and five to six guys were charged,” said Valasik, a former professor at Louisiana State University and co-author of the 2020 book, “Alt-Right Gangs: A Hazy Shade of White.”

“They were all young white guys,” Valasik said. “If we pick that incident up and move it a few blocks off campus in another neighborhood, I can guarantee you that the prosecutors would have charged them with a gang enhancement.”

Unintended consequences

Democratic lawmakers argue the legislation is filled with potential unintended consequences that single out Blacks.

“People use the word ‘gang’ so frivolously that we don’t know who is in a gang or not,” Singleton said.

He said he fears the legislation could lead to innocent people labeled as a gang, such as those affiliated with a fraternity.

“I’m in a fraternity, Omega Psi Phi, and I wear letters and all my brothers wear letters,” said Singleton. “I throw up a sign. I have a tattoo on my shoulder. I’m definitely not in a gang.”

He added, “There are many of us out there like that. If I stand on a corner with fraternity brothers, and one of the brothers goes off and does a commission of a crime, does that mean (I’m) associated with a gang because he was wearing the same Omega shirt at the time?”

Senator Linda Coleman-Madison, D-Birmingham, argued the definitions were “subjective.”

“Are we throwing the Masons, Eastern Stars, and all of the fraternities in there and going out to the college campuses … I guess you could round them all up,” she said. “That’s a gang.”

Singleton urged Republicans to remove the word “gang” and replace it with “criminal enterprise.” By doing so, he said, the legislation could also apply to groups that are not often associated with urban Black gangs like hate groups and the mafia.

Marshall’s office said it’s not interested in fighting over the terminology and would welcome to replacing the term with “criminal enterprise.”

Valasik, who has argued for alt-white groups to be labeled as a “street gang,” said changing the name will “take a little bit of the racial component out of it.”

“It’s one of those things that at the end of the day, it comes down to the application of the law,” he said.

Republicans during the two committee meetings did not hint that they would do so, though they said they were interested in addressing concerns from Democratic lawmakers before the bills made it to either the full House or Senate for debate.

“That’s the problem with this bill,” Smitherman said to his GOP colleagues. “You all never have been Black.”

Combating violent crime

The legislation’s supporters say the Democrats are overstating concerns. They say the only time someone would face enhanced penalties for gang membership under the legislation is if they are first convicted with an underlying violent crime.

“Secondarily, there has to be proof beyond a reasonable doubt that person was in a gang, or they were benefitting a criminal enterprise,” said State Senator Will Barfoot, R-Pike Road, sponsor of SB143.

Said Treadaway, “Some folks aren’t happy with the term ‘gang,’ or as its defined in there. But you have to understand that you have to commit a violent crime (first) and then the judge has to be convinced, during the prosecution of the case, that you are affiliated with a gang.”

He added, “If you’re not committing these crimes, or hanging with gangs with criminal records, you don’t have anything to worry about.

Treadaway said the legislation is needed at a time when cities are facing what he says is a surge in violent crime.

Some recent reporting suggests violent crime might be declining. In Mobile, where street gang activity was blamed for a deadly New Year’s Eve shooting, an annual report released last week shows an overall 10% drop in violent crime from 2021 to 2022. Homicides went down 19%, and robberies were down 25%.

Birmingham was a different story in 2022, according to data compiled by AL.com. The Magic City’s 2022 was the deadliest on record in 89 years, with 142 homicides, and an alarming per capita homicide rate of 72.9 slayings per 100,000 people.

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“Violent crime is going up,” said Treadaway, a retired assistant police chief with the Birmingham Police Department. “And the violators are getting younger and younger, and we are losing lives. I wished the discussion would move to just how many folks are shot, murdered, and killed. I’ve been on the scenes of so many murders, too many to count, during my career in the city of Birmingham.”

Birmingham is showing signs of improvement. Through the first quarter of the year, violent crime has dropped by double digits.

Birmingham Police Chief Scott Thurmond told AL.com earlier this month that neighborhood street gangs beefing with each other is one of the concerns for the city as it continues to combat violent crime.

“What we are trying to do is save lives,” Treadaway said.

Derryn Moten, chairman of the history and political sciences department at Alabama State University, said he fears the approach might do more to increase the number of youths going to prison.

“I think true gangs are organized and their members are affiliated,” said Moten. “I fear that the possible loose definitions of ‘gangs’ will result in further criminalization of Black and brown youth allowing some lawmakers to punish them more harshly.”