Two Words That Can Get You Life in Prison

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BEFORE REBECCA RIVERA ENTERED the California courtroom to hear if her son, Joshua Herrera, was going to face a life sentence in prison, she gathered with 40 or so supporters, who were bustling with nervous tension.

“I talked to Joshua last night,” she said, “and he wanted us all to know that whatever happens in there—he is coming home.” She began to weep, then collected herself and walked into court.

The only time a mother can celebrate her son being sent to prison for 19 years is when it could have been for life.

Rivera had done everything a mother could do to prevent her son from receiving a life sentence. She had brought his story to politicians, students, church congregations and biker clubs. She had organized marches, rallies and press conferences, and she had facilitated a letter-writing campaign. It paid off. Sort of.

In the courtroom, Judge Arthur Bocanegra delivered Herrera’s sentence: 19 years. Rivera’s deepest fears vanished. The only time a mother can celebrate her son being sent to prison for 19 years is when it could have been for life.

With no significant criminal record, no history of violence and a promising future as a firefighter, 24-year-old Herrera had faced a life sentence in a level-four prison. The stiff sentence was based on what is called a “gang enhancement,” which was tacked onto charges against Herrera as a result of a get-tough-on-gangs law passed in Sacramento, California, in 1988.

Herrera’s case is emblematic of the deep flaws inherent in that law, the Street Terrorism Enforcement and Protection (STEP) Act. Critics say the legislation, which targets and defines people as “gang members”—a politically charged and legally ambiguous term—has resulted in sentences disproportionate to the crimes.

Since the inception of STEP in California, more than half of all states and the District of Columbia have passed similar gang laws. And Congress has recently begun introducing legislation to make gang-related crimes a federal offense. There are at least eight proposals to address gang violence pending in the House and Senate. Sen. Dianne Feinstein’s Gang Abatement and Prevention Act of 2007 (S. 456) has already passed the Senate, and the bill’s language draws heavily from that found in STEP. A similar bill—the Gang Prevention, Intervention and Suppression Act (HR 3547)—has been introduced in the House of Representatives by Rep. Adam Schiff, a Democrat from California. If voted into law, it would create federal criminal penalties for gang crimes.
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In 2003, Joshua Herrera, then 19 years old, returned to his hometown of San Jose. Tall and lanky, he had grown up there with his mother, who worked a full-time job and took night courses on business management. His uncles were active in the Latino community, serving as ministers and working as school principles. Herrera spent his summers doing jobs at the law firms where his mother was employed. He finished his high school years in Florida, where he lived with his father, and then enrolled in an Emergency Medical Technician program. After finishing the program, Herrera decided to become a firefighter, moved back to San Jose and enrolled in Mission College’s firefighter academy. His family bought him a car so he could transport his firefighter gear to school and back.

Five months after his return home, Herrera was out one night with friends. He drove three of them to the home of Thomas Martinez, a boyfriend of one of the young men’s mother. The men wanted to confront Martinez, who had allegedly abused the mother, and retrieve her belongings from the house.

Herrera stayed in the car while his friends entered the home. Martinez fled the scene and later claimed that one of the defendants had a shotgun. According to court testimony, Martinez was assaulted by one of the defendants, Richard Rodriguez. According to police reports, the young men returned to the car with a safe and two ounces of methamphetamines.

After dropping off his friends, Herrera was pulled over by police three blocks from his family home. His car, it would later be revealed, had been under surveillance by detectives investigating one of Herrera’s friends. He was arrested on the spot.