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Washington Law Review

Abstract

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. Different rules attach to people under criminal law once they are labeled gang members, yet this two-track system is justified under the guise that the racially disparate treatment is legitimate because of gang association.

This Article takes one concrete example—culturally specific tattoos—and unmasks how racial markers are used to attach the gang label. Specifically, I describe examples of how tattoos symbolizing Chicano cultural identity are used to categorize people as gang members.

I discuss four types of tattoos that represent important aspects of Mexican-American identity, but that are regularly used to define people as gang members. Specifically, 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. I also describe the use of tattoos that depict Aztec or Mayan imagery, as well as tattoos of Catholic religious symbolism.

The Article then builds on scholarship in the field of Critical Race Studies to criticize the current construction of the law, which keeps racially disparate treatment entrenched. Here, I rely on academic literature about tattoos to explain how central tattoos are to people’s identities, and to argue that the law should evolve to acknowledge disparate impact claims in the absence of evidence of discriminatory intent, and to recognize discriminatory intent when it is masked behind language that legitimizes discrimination.

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