Part one of two columns

I would like to begin this opinion piece by admitting that I am neither an expert on gangs, nor an expert on truces, whether negotiated or otherwise. In fact, I am not even a Bermudian, and don't know the numerous socioeconomic intricacies related to gang culture on this Island.

I am simply a retired lawyer that has directed much of his effort during the last three years toward the development of social policy proposals, particularly proposals to reduce the gap between the haves and have-nots in Bermuda.

I have no idea whether these policy proposals will be implemented; I simply put them into the public domain in the hope they will spark discussion that will help us collectively work toward lessening the problems Bermuda now faces.

That said, here are my thoughts on the prospects of a negotiated gang truce.

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 anti-gang legislation that neutralised the benefits of being in a gang and served as a sanction against any gang that breached the truce.

So what is "anti-gang" legislation?

Anti-gang 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 witness 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, criminal gang members benefit from being part of the 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 organisations, including gangs.

To date, Bermuda has not enacted anti-gang 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 it has enacted gang-disbursement legislation based on the UK model that is more appropriate for dealing with football hooligans and street gangs that are about to start a riot, all of which is fine legislation, but it is not the anti-gang 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 and

(ii) legislation that makes certain activities by gang members illegal. As I stated in my August 10 Rotary speech on gang violence, 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 and the United States — 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 American legislation, while helpful, is somewhat cumbersome because criminal law in America is governed by each individual state (e.g., New York, California, etc.) except where it spans more than one state, in which case it is governed by Federal law (the laws enacted by Congress in Washington). As a result, core parts of the US Federal anti-gang legislation (e.g., the Racketeer Influenced and Corrupt Organizations Act commonly referred to as RICO and the Continuing Criminal Enterprise Statute) include complex triggering mechanisms that involve such things as crossing state lines, without which the Federal Government would have no jurisdiction and the law wouldn't apply.

The more appropriate anti-gang legislation for Bermuda is the Canadian legislation. In Canada, the Federal Government has sole jurisdiction over criminal law and so the legislation is relatively straight forward.

Further, it is more modern than the US legislation (RICO was enacted 40 years ago to deal with the Mafia) and is considered much more fair and balanced than other anti-gang legislation enacted around the world (such as in Australia where it is a criminal offence to be a member of a gang even if you have done nothing to support criminal gang activity).

The Canadian legislation is made up of three categories of gang activities that are deemed criminal: the first two deal with activities that support the gang structure; the third deals with activities that use the gang's structure to control the gang's criminal conduct. More specifically, Canada has made it a criminal offence:

(i) punishable for up to five years in prison, for a person to contribute 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),

(ii) punishable for up to 14 years in prison, for a person to commit 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), and

(iii) punishable for up to life in prison, for a member of a criminal gang to instruct another person 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).

Most importantly, 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 will be sentenced for an additional period under the anti-gang legislation, and that second sentence will only start running once the first sentence has been served.

To further strengthen its ability to fight organised crime, the Canadian government has recently announced its intention to also limit the ability of gang members to obtain early parole for gang-related offences, thereby further adding to the costs of being in a gang.

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 offences, the Canadian anti-gang legislation has increased the costs of being in a 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 anti-gang legislation, the costs of being a gang member would immediately increase, as would the negotiating power of police and prosecutors 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 anti-gang 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 anti-gang 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. For a copy of his Hamilton Rotary speech, "How to Dramatically Reduce Gang Violence in Bermuda," go to http://bit.ly/bdagang or contact Mr. Comeau directly at kevincomeau@northrock.bm.