|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
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
Click on the
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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  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
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
"The difficulty with gang legislation seems
to be in defining gang
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
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
Resides in or frequents a particular criminal gang's area,
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
Has been arrested more than once in the company of identified criminal
gang members for offenses which are consistent with usual criminal gang
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")
State Code: 941.38.
Criminal gang member solicitation and contact
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
for Intergovernmental Research, scroll down to
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
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
|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
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.
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
Where a zero tolerance
policy has been put into place,
police will establish probable cause by looking for even minor offenses such as
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.
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
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
The Use of Conspiracy, Inchoate
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
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,
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
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
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
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
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
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
Criminal street gang activity; enhanced
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:
misdemeanor of the second degree may be
punished as if it were a misdemeanor of the
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.
felony of the third degree may be punished
as if it were a felony of the second degree.
felony of the second degree may be punished
as if it were a felony of the first degree.
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.