Appellant did not prove beyond a reasonable doubt that section 609.229, committing an offense for the benefit of a gang, violates the Equal Protection Clause of the Minnesota Constitution because appellant did not establish a factual record that permits a court to evaluate the reliability and validity of his data and the data analysis used to support his equal protection claim.
Appellant, who was convicted of violating section 609.229, is not similarly situated to someone who violates RICO and was not denied equal protection. An individual cannot be convicted under section 609.901 et seq. (the RICO statute) for racketeering based on his participation in one act of second-degree controlled substance crime. In addition, criminal gangs have a common name or common identifying sign or symbol and one of their primary activities is the commission of criminal offenses, while enterprises do not have a common identifying sign or symbol and may be engaged in legitimate pursuits.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Paul H., Justice
William Allen Frazier pleaded guilty to one count of a controlled substance crime committed for the benefit of a gang. Despite his plea, Frazier asked the district court to sentence him without regard to the crime committed for the benefit of a gang statute, Minn. Stat. § 609.229 (2000). He argued that the statute, as applied, denies equal protection and due process under the federal and state constitutions. In support of his argument, Frazier presented data which he asserted indicated that section 609.229 has a disparate impact on the basis of race. The district court found that Frazier's data demonstrated that section 609.229 has a disparate impact on racial minorities. Nevertheless, the court ultimately rejected Frazier's constitutional argument, finding that the statute survived constitutional scrutiny under Minnesota's active rational basis test. On appeal, the Minnesota Court of Appeals did not address whether Frazier's data demonstrated disparate impact, apparently accepting the district court's finding. However, the court of appeals concluded that the statute survived our active rational basis test. We affirm, but on different grounds.
Appellant William Allen Frazier is a black male and admits that he belongs to the New Breed Disciples, a criminal gang located in Duluth. The state alleged that on four separate occasions, Frazier sold crack cocaine to confidential reliable informants working with the Special Investigations Unit of the Duluth Police Department. The state charged Frazier with (1) one count of first-degree conspiracy to sell cocaine, in violation of Minn. Stat. §§ 152.021, subd. 1(1), and 152.096, subd. 1 (2000), (2) two counts of second-degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 1(6) (2000), and (3) two counts of third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 1(1) (2000). When charging Frazier with these offenses, the state alleged that these offenses were committed for the benefit of a gang in violation of Minn. Stat. § 609.229 (2000), a separate crime.
Frazier entered into a plea agreement with the state and pleaded guilty to one count of second-degree controlled substance crime committed for the benefit of a gang. The state then dismissed the remaining counts. At his sentencing hearing, Frazier moved the district court to sentence him without regard to section 609.229, which provides a mandatory minimum sentence for crimes committed for the benefit of a gang. He asserted that (1) the statute violates the due process and equal protection clauses of the federal and state constitutions and (2) under section 609.229, the Minnesota Sentencing Guidelines Commission (Guidelines Commission) lacks the statutory and jurisdictional authority to require a 12-month sentence enhancement for gang-related crimes.
In support of his sentencing motions, Frazier presented two arguments supporting his contention that section 609.229 offends the equal protection and due process clauses of the federal and state constitutions. First, Frazier argued that section 609.229 has a discriminatory impact on racial minorities. Frazier presented four kinds of data to support this argument. Frazier pointed to statistics from the Minnesota Gang Strike Force (Strike Force) which he argued indicate that about 92 percent of the 1,025 confirmed gang members in Minnesota are members of a racial minority. According to the Strike Force, 27 percent of confirmed gang members are white and 73 percent are minorities. Frazier arrived at the 92 percent figure by inferring that of the 281 confirmed gang members classified by the Strike Force as white, 202 are Hispanic and only 79 are white. He also used national level data to support his claim that minorities are more likely than whites to be gang members. Next, Frazier argued that data from the Guidelines Commission indicate that since 1994, only 10 percent of those sentenced under section 609.229 are white. Finally, Frazier presented data indicating that the incarceration rate of blacks is 12 times greater than their percentage of Minnesota's population. He did not offer any evidence regarding the strength and relevance of the data he presented to the court.
Frazier's second argument was that members of a racial minority who are convicted under section 609.229 are systematically given more severe sentences than individuals engaged in identical or similar conduct, but who are convicted under other statutes. More specifically, Frazier compared the crime committed for the benefit of a gang statute to Minnesota's RICO statute, Minn. Stat. §§ 609.901 et seq. (2000), and asserted that the state RICO statute does not establish an additional and consecutive sentence merely because the defendant is part of a criminal enterprise.
The state opposed Frazier's sentencing motions, contending that Frazier had failed to demonstrate that section 609.229 has a discriminatory impact on racial minorities. The state contested Frazier's assumption that not all of the individuals classified as white by the Strike Force are in fact white and questioned Frazier's use of national level data to bolster his claim regarding the racial make-up of gangs in Minnesota. The state also asserted that Frazier failed to demonstrate that the racial distribution of those incarcerated in Minnesota prisons or the racial distribution of those convicted of drug offenses in Minnesota was due to section 609.229. Finally, the state argued that even if the data did demonstrate that section 609.229 has a discriminatory impact, the statute survives scrutiny under the active rational basis test specified in State v. Russell, 477 N.W.2d 886, 889-90 (Minn. 1991). Like Frazier, the state did not offer any evidence regarding the strength and relevance of the data presented by Frazier to the court.
The district court rendered its decision based on oral arguments of counsel and the parties' memoranda of law. With respect to Frazier's constitutional claim, the court found that section 609.229 has a racially disparate impact, noting that Frazier had "provided several statistics citing the number of minorities who have been sentenced under the gang statute as compared to whites." The court then found that Frazier failed to meet his burden under Minnesota's active rational basis test as set forth in Russell. More specifically, the court found that the legislature chose to address the threat of gangs to the safety of citizens by enhancing the penalties of crimes committed for the benefit of a gang. The court concluded that there was a genuine and substantial reason for the statute.
The court also found that Frazier's comparison of the crime committed for the benefit of a gang statute with the state RICO statutes was misplaced because the RICO statutes are seldom used in prosecution and the Minnesota Sentencing Guidelines do not contain a severity level for such convictions. The court noted that Frazier failed to present evidence that RICO is used primarily against whites. With respect to Frazier's statutory claim, the court found that Minn. Stat. § 244.09, which authorizes the Guidelines Commission to promulgate the presumptive sentence duration for felony offenses, provides the statutory authority for the Guidelines Commission to require a 12-month enhancement for gang-related crimes. The court then sentenced Frazier to a 48-month executed term on the second-degree controlled substance conviction and an additional consecutive 12-month executed term on the crime committed for the benefit of a gang conviction.
Frazier appealed and the court of appeals held that section 609.229 does not offend the Equal Protection Clause of the Minnesota Constitution. State v. Frazier, 631 N.W.2d 432, 436-37 (Minn. App. 2001). The court did not address whether Frazier's data indicated that section 609.229 had a disparate impact on racial minorities. The court applied the active rational basis test set forth in Russell to evaluate the statute's constitutionality. Id. at 435.
In its analysis, the court of appeals identified certain evidence presented at a senate subcommittee hearing on the crime committed for the benefit of a gang bill. See Hearing on S.F. 809 before the Senate Criminal Law Subcommittee, 77 Minn. Leg. (April 4, 1991). Based on this evidence, the court of appeals concluded that the statute survives Russell's active rational basis test because the legislature based its decision to enact section 609.229 on more than anecdotal evidence. 631 N.W.2d at 436. The evidence identified by the court is the following. First, an assistant attorney general testified that crimes committed for the benefit of a gang are more serious and deserve a greater penalty because of the impact on the victim and the community. Second, the legislature was presented with a number of newspaper articles reflecting the seriousness of the gang problem, including an article detailing the dismissal of felony charges in three cases in Hennepin County because witnesses were threatened by gang members. Third, a psychologist with the Minneapolis Public Schools testified that an increasing number of students are afraid to leave their homes at night because of street gangs and that he has observed young children flashing gang signs and has noticed gang insignias on student folders. The psychologist also testified that there was a recent death threat by a gang member against an assistant principal and that if nothing was done to respond to the influx of street gangs, gangs would become a permanent part of our community. Finally, the Minnesota President of the NAACP, a central Minneapolis resident, testified that residents in his neighborhood are living in fear because of gang intimidation.
The court of appeals also rejected Frazier's argument based on the RICO statute that the gang statute does not have a rational basis because it does not cover similarly situated organizations that do not have a "common name or common identifying sign or symbol." The court found that Frazier had failed to identify a similarly situated criminal organization that may escape the gang statute's purview because it does not have a common name or identifying symbol. 631 N.W.2d at 436.
On appeal to our court, Frazier presents three claims under the Minnesota Constitution. First, he contends that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because the statute has a disparate impact on racial minorities. Second, he argues that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because it criminalizes conduct that is similar to the conduct penalized by Minnesota's RICO statute, but imposes a longer sentence. Third, he argues for the first time that section 609.229 violates freedom of expression and association protected by the Minnesota Constitution.
We review challenges to the constitutionality of a statute under a de novo standard. State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997). Minnesota statutes are presumed to be constitutional and we exercise with extreme caution our power to declare a statute unconstitutional. Id. The party challenging the constitutionality of a statute bears the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. Id.
Frazier's first claim is that section 609.229 violates the Equal Protection Clause of the Minnesota Constitution because the statute has a disparate impact on racial minorities. In support of his argument, Frazier presents statistics from the Strike Force and the Guidelines Commission. He asserts that these data indicate that 27 percent of confirmed gang members are white, but only 10 percent of those convicted and sentenced under the statute are white; while 73 percent of confirmed gang members are members of a racial minority, but 90 percent of those convicted and sentenced under the statute are minorities.*fn1 Frazier argues that we should evaluate the statute under Russell's active rational basis test.*fn2
The state argues that Frazier has not demonstrated that section 609.229 has a disparate impact on racial minorities. While acknowledging at oral argument that Frazier's data appear to indicate that the statute has a disparate impact, the state contends that the disparity (1) may not be statistically significant because of the small sample size and (2) can be explained by the fact that minorities are more likely than whites to be gang members. When specifically addressing the sample size, the state contends that the 39 convictions cited by the Guideline Commission's data was too small a sample to draw statistically reliable inferences regarding section 609.229's impact on racial minorities. The state also argues, based on federal equal protection standards, that disproportionate impact alone is not determinative of invidious racial discrimination and that Frazier's equal protection claim fails because he has neither alleged nor presented evidence of discriminatory intent by the legislature. Finally, the state contends that the statute survives scrutiny under both the compelling interest and active rational basis tests. According to the state, there was ample substantive evidence submitted to the legislature to justify the gang statute under Russell's active rational basis test. The state asserts that the statute also satisfies strict scrutiny because preventing and curbing gang activity constitutes a compelling state interest and the statute is narrowly tailored to meet that interest.
The arguments presented by Frazier and the state raise the following three questions. First, does Frazier demonstrate that section 609.229 has a disparate impact on racial minorities such that he states a claim under Minnesota's Equal Protection Clause? Second, if Frazier states a cognizable equal protection claim, is the appropriate standard for evaluating this claim rational basis, active rational basis, or strict scrutiny? Third, if Frazier has a cognizable claim, does section 609.229 satisfy the proper equal protection standard?
An individual challenging a statute on equal protection grounds must demonstrate that the statute classifies individuals on the basis of some suspect trait. 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law §á18.4 at 255 (3d ed. 1999). Thus, the threshold question before us is whether Frazier's data demonstrate that section 609.229 creates a racial classification. The parties agree that on its face section 609.229 does not classify on the basis of race. Therefore, Frazier must demonstrate that the statute creates a racial classification in practice.
Frazier bases his disparate impact claim on a comparison of two sets of data. The Strike Force data consist of the number and racial distribution of confirmed gang members identified by law enforcement officials. The Guidelines Commission data consist of the number and racial distribution of individuals convicted under section 609.229. Frazier compares the racial distribution of those convicted under section 609.229 to the racial distribution of confirmed gang members in the Strike Force data. He then argues that because the racial distribution of those convicted under the statute deviates from the racial distribution of confirmed gang members, the statute, as applied, has a racially disparate impact.
While it is possible that Frazier could have a valid argument that section 609.229 has a racially disparate impact, we have difficulty accepting his argument based on the evidence he has presented. This is because we have several questions regarding the foundation for Frazier's data analysis and the reliability and validity of the data. First, it is possible that Frazier's data indicate that blacks are not disproportionately disfavored by section 609.229. According to the Strike Force, of the 1,025 confirmed gang members, 73 (7 percent) are Asian, 614 (60 percent) are black, 55 (5 percent) are American Indian, 2 are unknown, and 281 (27 percent) are white. There is currently no separate category for Hispanics. According to the Guidelines Commission, between 1994 and 1998, 39 individuals were convicted of violating section 609.229. The population of convicted gang members consists of 4 whites (10.3 percent), 12 blacks (30.8 percent), 1 American Indian (2.6 percent), 21 Asians (53.8 percent), and 1 other (2.6 percent). Again, there is currently no separate category for Hispanics. On their face, these data show that 60 percent of confirmed gang members in Minnesota are black, but 30.8 percent of those convicted of violating section 609.229 are black. Because neither party presented any analysis regarding the meaning of Frazier's data, we cannot determine whether the aforementioned interpretation of the data has merit or whether Frazier's interpretation is more accurate. Therefore, without further analysis or explanation, we cannot, based on these data alone, conclude that blacks are disfavored by section 609.229.
A second question we have regarding the reliability and validity of Frazier's data is whether the Strike Force data are a reliable estimate of the racial distribution of the population of gang members in Minnesota. Frazier uses data derived from the Strike Force's Criminal Gang Pointer File, a statewide computer system that tracks gangs and the number of "confirmed gang members." A confirmed gang member is defined by the Strike Force as a person who has "been found guilty of a ...