Chapter 13a:
Gang-Related Legislation

Field Note: A county prosecutor told me he finds it "very frustrating that I learn so much about the gang situation, and my clients' involvement in the gangs, but I can't use any of it at trial because of the way the statute is written. Where I can use the information I have is in the sentencing hearing. There I can inform the court of prior arrests - which could be dismissed by the judge, and convictions - which have more impact on the judges' decision on sentencing."

Although street gangs are not new, some of the legislation developed in the United States to deal with their members' acts of delinquency and crime is. Legislation creates law which is an instrument used by the justice system in an effort to control law violators. What we'll focus on here is how legislation over the past twelve to fifteen years has been used to control certain behaviors of gang members.

Any legislation which attempts to deal with gangs must, first and foremost, define what a gang is. This has not been an easy thing to do and there are several different legal definitions of a gang. The definitions are also in a constant state of flux - much as is the gang situation itself.

The sites below have been placed on two pages (as shown under "Second page" in the table below) to speed navigation.

Click on the topics below or  continue reading down the page ... The Legal Definition of a "Gang" and "Gang Activity"  Gangs and the Law Use of Existing Laws The Use of Conspiracy, Inchoate Offense, and Solicitation Provisions Enhancements Made to Existing Laws  Second page The Creation of New, Gang-Focused Legislation A. Racketeering Influenced and Corrupt Organizations (RICO) B. Street Terrorism Enforcement and Prevention (STEP) Act C. Safe Streets Act Some Difficulties Related to Gang-Oriented Legislation In Closing

The Legal Definition of a "Gang" and Gang Activity

Field Note: A prosecutor told me "We've had gang legislation in place in this state for several years, but not one case using it has made it through court. Our laws require that the 'gang' have a common name or identifiers - tattoos, colors, things like that.   "What are we supposed to do when we have four suspects in a car involved in a crime and each suspect claims membership to a different gang? The four of them do not share 'a common name or identifier.' They have four different ones! So we can't take it to court as a gang case. "Our state law defines a gang as having 'three or more members.' I wish it read 'two or more.' We have lots of cases where the police caught two gang members from the same gang, but we couldn't prosecute it as a gang case because there weren't three. It's very frustrating for us to be unable to use the enhanced statutes."

The basic elements in most definitions of a gang include

the number of individuals involved being defined as a "group" (usually defined as "three [3] or more"), the length of time the individuals in question have associated with one another (it typically must be "ongoing" or "continuing") and the members' participation in criminal activity. This is what distinguishes a gang from a group. Groups, like Kiwanis and the Boy Scouts, are not gangs because they neither participate in nor condone criminal activity among all members.

From the simple to the complex, what follows are two examples of how states in the United States are defining "gang." You may note the inclusion of the basic elements of the definition as noted above. 

The Wisconsin definition includes the possibility of trying a juvenile who has committed an act which "would be criminal if the actor were an adult." This is important because it recognizes juveniles represent a significant proportion of the known gang population in the United States.

"The difficulty with gang legislation seems 
to be in defining gang activity." (Grant, 1997)

The following state statutes are exemplary of other state statutes which define such terms as criminal gang and gang member. You can also explore your state's statutes.

Tennessee  State Code: 39-11-106(a)(36) A "'Criminal street gang' means a formal or informal ongoing organization, association, or group of three or more persons which has: As one of its primary activities, the commission of criminal acts; A common name or common identifying signs, colors, or symbols; and Members or associates who collectively engage in criminal activity." State Code: 40-35-121 A "'Criminal gang member' is a person who is a member of a criminal gang, as defined ..." above, "and who meets two (2) or more of the following criteria:  Admits to criminal gang involvement;  Is identified as a criminal gang member by a parent or guardian;  Is identified as a criminal gang member by a documented reliable informant;  Resides in or frequents a particular criminal gang's area, adopts their style or dress, their use of hand signs or their tattoos, and associates with known criminal gang members;  Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information;  Has been arrested more than once in the company of identified criminal gang members for offenses which are consistent with usual criminal gang activity; or  Is identified as a criminal gang member by physical evidence such as photographs or other documentation;  'Criminal gang offense' means any violation of Tennessee law:  During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons and specifically includes rape of a child, aggravated rape and rape; or  That results, or was intended to result, in the defendant receiving income, benefit, property, money or anything of value from the illegal sale, delivery or manufacture of a controlled substance or firearm;"  (ibid., scroll down to "Tennessee") Wisconsin  State Code: 941.38. Criminal gang member solicitation and contact  A "'Criminal gang' means an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult; ... that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (Institute for Intergovernmental Research, scroll down to "Wisconsin")

There is no universally accepted definition of a gang. While some states, as in the example of Tennessee above, are very specific in defining what a gang is, other states have found that making the definition too specific works to their disadvantage. In California, for example, the definition of a gang included identifiers such as the wearing/displaying of certain colors, tattoos, and/or throwing of hand signs.

The problem was that gang members became knowledgeable as to how the law reads and stopped using colors, didn't get tattooed or had old tattoos removed. When arrested committing gang-related crimes, prosecutor's were unable to prove the suspects were gang members because they didn't fit the definition of the law.  

For that reason, and others, gang legislation is once again changing and becoming less specific. The term "gang" may eventually be defined as a group of two or more individuals who share an on-going relationship and support one other, individually or collectively, in the recurring commission of delinquent and/or criminal acts. References to a common identifier (i.e., gang name, tattoos, colors, graffiti) may be omitted.

Gangs and the Law

Every criminal law consists of two elements. The first defines the behavior which is being criminalized while the second establishes punishments which may be imposed by the court on a person found guilty of violating the law. Both the nature of the gang-related behaviors being newly defined as criminal and their associated punishments are what gang legislation is all about today.

In the case of gangs, four things are happening:

Existing laws are being used to arrest them. Punishments which can be imposed for violating existing laws have, in some cases, been "enhanced" if it can be proven the offender is affiliated with a gang. Enhanced punishments are greater than those normally imposed for violating a law. The use of conspiracy, inchoate offenses, and solicitation provisions has been increased in prosecuting gang members. New laws have been created to deal specifically with undesirable gang member behavior.

Let's take a look at each of these.

Use of Existing Laws

As mentioned previously, gang members are involved in a wide range of delinquent and criminal activity. Towards that end, all existing laws pertaining to crimes against persons and property may be used in an effort to control gang member activity. 

Existing laws in most jurisdictions ... may allow more options for prosecuting than statutes specifically aimed at gang members and crimes. In Los Angeles, for instance: ". . . if it is established that a person is a gang member (e.g., through affiliation, clothing, witness testimony), the policy is to seek the maximum penalty. 

Pursuit of the maximum penalty is guided by the beliefs that gang members commit a greater variety of crimes than non-gang members; gang members commit crimes over a longer period of time than non-gang members; gang members are more violent than non-gang members. (Johnson, Webster, and Connors, 1995, page)

In the case of crimes against persons, laws against murder, rape, robbery, assault, intimidation of witnesses and victims, and extortion may be used. Laws against larceny/theft, burglary, arson, auto theft, destruction of property (private or public), and vandalism, are among the crimes against property for which gang members may also be arrested.  

Due to the sometimes violent nature of gang activity, laws against carrying a concealed weapon, discharging a weapon within city limits, and other gun laws may be exercised against gang members whenever possible. Drug laws provide an additional avenue for arresting gang members who may be involved in illegal drug activity. This includes, but is not limited to, the cultivation, manufacture, distribution, sale, or possession of controlled substances.

Where a zero tolerance policy has been put into place, police will establish probable cause by looking for even minor offenses such as violating license and taillight ordinances, speeding, and failure to indicate a turn, to mention only a few. A "consent to search" is then likely to be requested so police may look for guns and contraband such as drugs and stolen goods.

Field Note: A gang unit supervisor said his unit may attempt "to find any viable charge, like failure to set parking brake, just to get leverage to pick one of them up for an interview about a more serious crime.  We arrested a gang member for littering so we could pick him up and put him in a formal 'police interview' about another crime. No one wants to admit it, but as you know, you have to get past the tough guy image and get their attention before you can even think about getting a confession. The formal interview doesn't always work, but when you have nothing to work with, sometimes it does."

At the same time, if there are passengers in the vehicle it is likely that they will also be investigated and their drivers' license numbers run through a criminal database such as the National Crime Information Center or the state's database. This is done to determine who the individuals are, to create a record of who is associating with who, if any warrants have been issued for their arrest, and to make the point that the police are in control.

Asian gang members are well known for counterfeiting charge cards and committing forgery in their use. Existing counterfeiting and forgery laws come in handy as a means of arresting them. Likewise, depending upon the gang's criminal activity, the police may arrest their members for stolen property (possessing, selling, buying, receiving), vandalism (useful for graffiti convictions), prostitution and commercialized vice, drunkenness, disorderly conduct, curfew and loitering, being a runaway, and other laws.

The point being made here is that there are already in place many laws which can be used to arrest gang members. What follows are other laws, already on the books, which may also be used to prosecute gang members.

The Use of Conspiracy, Inchoate Offense, 
and Solicitation Provisions

Conspiracy refers to an "agreement between two or more persons to commit an unlawful act." (Rush, 2000, p. 73)  Because some gang crimes are committed by two or more fellow gang members acting in unison, conspiracy becomes a useful legal tool for the prosecution. It not only provides another law which can be used to arrest and convict gang members, it may also act as an enhancer and increase the length or severity of the sentence imposed.

An inchoate offense is an "anticipatory offense, a violation consisting of an action or conduct that is a step toward the intended commission of another offense," (Rush, 2000, p. 168)  With inchoate offenses, suspects are caught in some stage of preparation for committing an illegal act. This, too, is a useful tool for prosecuting gang members caught while planning a criminal act.

In addition to defining basic criminal offenses - crimes against persons, property, and public order - State criminal codes set forth standards for criminal responsibility and define inchoate crimes.

Those who aid and abet the commission of crimes, even though they do not directly participate in the criminal acts themselves, can also be held criminally responsible. Inchoate crimes such as attempt and conspiracy are punishable even though the crime itself is not completed. Conspiracy law also enables prosecutors to reach criminal conspirators who are not at the scene of the crime itself. All these factors mean that traditional criminal law can reach most gang crime. (Johnson, Webster, and Connors, 1995, page, italics added for emphasis)

Solicitation occurs when one person asks another person to participate in the commission of a criminal offense. When applied to gang activity it aids in the arrest of gang members who have asked other gang members to join them in criminal activity, to commit a crime in order to be accepted into the gang, to prove their loyalty, or for some other reason.

Taken together, the use of existing conspiracy, inchoate offense, and solicitation provisions expands the criminal justice system's ability to bring gang suspects to the attention of the court.

Enhancements Made to Existing Laws

According to Howell, "Innovative penalty enhancements ... provide enhanced punishment for crimes that are often gang related, although they are not limited in application to gang members. These laws not only enhance penalties against [individuals] charged with offenses such as drug trafficking, homicide, assault with a weapon, robbery, home invasion, arson, extortion, and auto theft, but also against accomplices charged with such offenses as conspiracy to commit a crime and aiding and abetting overt criminal acts." (Howell, 2000, page)

Among the more significant enhancements are

use of a lower standard of proof to increase sentencing levels and, as a result,  increasing the amount of time a convicted person may serve in jail or prison by raising the degree of the crime (i.e., from second degree to first degree or from a misdemeanor to a felony).

In American criminal courts, guilt is determined by proving the defendant's participation in a criminal act beyond a reasonable doubt. The level of proof needed to prove guilt beyond a reasonable doubt is substantially higher than needed to prove guilt by a preponderance of the evidence. Let's take a little closer look at this important distinction.

Proof beyond a reasonable doubt may be defined as being firmly convinced that a defendant is guilty of the crime charged. It is, or nearly is, the removal of all doubt. Imagine a table supporting a weight scale that has two dishes - one dish hanging on each side of the scale. The dishes are empty and perfectly balanced - one is as high off the table as the other. Then, during the trial, the prosecutor loads all of the evidence favoring conviction in one dish and the defense loads the other dish with all the evidence in favor of acquittal. Under the principle of proof beyond a reasonable doubt, if the dish with the evidence for conviction is touching or practically touching the table the accused should be found guilty.

Proof by a preponderance of the evidence, on the other hand, may be defined as "Evidence that is the most impressive or convincing of any offered." (Rush, 2000, p. 259-260)  In this situation the prosecutor and defense load their respective dishes but they are only slightly out of balance. If they tip even slightly toward conviction, the accused may be convicted.

The point is that it may be considerably easier to convict a suspected gang member of a crime using a preponderance of the evidence rather than proof beyond a reasonable doubt.

Enhanced legislation was developed to deal with gang-related criminality and allows the use of a preponderance of the evidence to show that the criminal act was gang-related. Having shown it was gang-related, the court may then raise the level of punishment from a lower degree to a higher degree. In other words, the use of the lower standard of proof makes it easier to impose the enhanced and greater punishment. That has been a notable development in gang-related legislation.

If a person is convicted of a crime, and it can be shown that the criminal act was gang-related, it is possible in some states to increase the level of sentencing because the act was gang-related. Not only may the degree of the crime be raised, and the punishment associated with its commission, it is significant to note that a misdemeanor conviction may, in some states, be raised to a felony conviction through the use of enhancing legislation. The significance of this is two fold. Felony convictions carry more severe penalties than do misdemeanor convictions and, in some states, offenders with an excess of felony convictions may be further penalized (as in the "three strikes and you're out" legislation).

Enhanced legislation is found at both state and federal levels. Below is an example from the State of Florida. It includes both forms of enhancement - raising the degree of the crime and elevating misdemeanors to felonies.

The 2006 Florida Statute   874.04  Criminal street gang activity; enhanced penalties. Upon a finding by the court at sentencing that the defendant committed the charged offense for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang, the penalty for any felony or misdemeanor, or any delinquent act or violation of law which would be a felony or misdemeanor if committed by an adult, may be enhanced. Each of the findings required as a basis for such sentence shall be found by a preponderance of the evidence. The enhancement will be as follows: (1)(a)  A misdemeanor of the second degree may be punished as if it were a misdemeanor of the first degree. (b)  A misdemeanor of the first degree may be punished as if it were a felony of the third degree. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, such offense is ranked in level 1 of the offense severity ranking chart. The criminal street gang multiplier in s. 921.0024 does not apply to misdemeanors enhanced under this paragraph. (2)(a)  A felony of the third degree may be punished as if it were a felony of the second degree. (b)  A felony of the second degree may be punished as if it were a felony of the first degree. (c)  A felony of the first degree may be punished as if it were a life felony. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, such felony offense is ranked as provided in s. 921.0022 or s. 921.0023, and without regard to the penalty enhancement in this subsection. For purposes of this section, penalty enhancement affects the applicable statutory maximum penalty only.