Gang Membership as a Prosecution Enhancement

Federal legislation allows U.S. Attorneys to enhance the penalty for crimes committed by gang members. A growing number of states have passed or are considering passing similar enhanced prosecution legislation. In practice, it is challenging to prove that an offender is a member of a gang or that the crime benefits the gang; therefore, it can be difficult to bring enhancement to bear on prosecuting criminal activity.

California, which leads the nation in the trend to enhance prosecution, describes the process this way: "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony," become subject to additional terms, enumerated in the code.[1] Guidance is provided under the California code for persons convicted of misdemeanor offenses.

In many instances, prosecution of gang crime at the federal level relies on codes that are specific to the crime involved. Other statutes may be brought to bear - for example, the Racketeer Influenced and Corrupt Organizations (RICO) statute or various conspiracy statutes.[2]

There is a federal statute specific to gangs: "Criminal Street Gangs" 18 U.S.C. § 521. This statute holds that "the sentence of a person convicted of an offense described in subsection (c) [subsection enumerates offenses] shall be increased by up to 10 years if the offense is committed under the circumstances described in subsection (d)."[3] Read 18 U.S.C. § 521.

Notes

[1] California Street Terrorism Enforcement and Prevention Act. California Penal Code § 186.22(f). [link to pdf]

[2] Examples of conspiracy statutes brought to bear in gang prosecution include, but are not limited to 18 U.S.C. § 371 and 21 U.S.C. § 846. "Conspiracy" is an agreement to commit a crime; some conspiracy statutes require overt acts while others do not. The Racketeer Influenced and Corrupt Organizations statute, or RICO, is 18 U.S.C. § 1961-68.

[3] Criminal Street Gangs. U.S. Code Title 18, Part 1, Chapter 26, Section 521. Retrieved December 7, 2010.

Date Created: October 28, 2011