In the United States, it cannot be a crime to be a member of a gang, because the First Amendment of the United States Constitution guarantees freedom of assembly. Every U.S. citizen has the right to join any group or club, no matter how offensive its espoused values may be.
However, many states have enacted laws focusing on gang affiliation to discourage the criminal behavior of gangs. The definition of a gang varies from state to state, especially when it comes to youth gangs. In general, however, the law in most states provides that a gang is an organization, group, or association of at least three people that has:
- A common name that the group uses to identify itself and its members;
- Identifying symbol(s);
- Identifying sign(s), for example, hand gestures or the like;
- Members who actively participate in crimes and may draw others into criminal activity.
Generally speaking, gang affiliation laws target people who might not necessarily be confirmed, card-carrying members of a criminal gang. However, they might be subject to criminal penalties due to their association with gangs, gang members or gang activity.
For instance, if a person is caught writing graffiti that is associated with a certain gang, that person’s sentence for the crime of tagging might be enhanced because it is gang-related.
What are the Federal Laws against Gang Affiliation?
The federal government currently does not have any particular laws against gang affiliation per se. However, it does prosecute the members of criminal gangs or groups under the powerful federal law known as the Racketeer Influenced and Corrupt Organizations Act (RICO). The Racketeer Influenced and Corrupt Organizations Act is designed to fight organized crime. It enables prosecutors to seek criminal conviction and civil penalties as well for racketeering activity that is done as part of the operation of an ongoing criminal enterprise.
Racketeering is defined as operating an unlawful, criminal business. This sort of crime is typically associated with the mafia and other organized criminal enterprises.
Criminal penalties for a RICO conviction are 20 years in prison, but the term of imprisonment can be for life if the crime committed carries a maximum penalty of life imprisonment. Penalties also include forfeiture of any assets that the perpetrator acquired through their racketeering or gang activity. Civil penalties for a RICO criminal conviction depend on the individual or business in which the perpetrator engaged. Compensation is three times the damages suffered. Of course, participation in a racketeering crime under RICO also involves gang affiliation or gang membership.
Conviction under RICO requires the government to show that the perpetrator engaged in two or more instances of racketeering activity and that the defendant directly invested in, maintained an interest in, or participated in a criminal enterprise affecting interstate or international commerce. Among the criminal activities that can form the basis for a RICO conviction are committing or threatening murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in controlled substances, and other crimes as well.
Do States Have Gang Affiliation Laws?
Many states have enacted their own state laws that are modeled on RICO. For example, the state of Georgia has its own Racketeer Influenced and Corrupt Organizations Act, modeled on the federal law and having a similar purpose and similar provisions. These laws provide penalties including imprisonment for criminal convictions and civil forfeiture of assets acquired through criminal activity.
An example of the type of criminal enterprise targeted by RICO and state RICO laws would be a group of people who associate together to cultivate and sell large amounts of marijuana, In addition they may engage in money laundering and identity fraud in order to promote their drug sales. The group must have some form of decision-making structure, with a leader and its members must work together for some period of time to operate the enterprise.
In order to combat growing gang violence many state legislatures have also enacted laws, such as California’s law on Gang Affiliation Enhancement, that are designed to discourage gang affiliation and criminality. These laws aim to limit gangs and gang activity by enhancing the punishment for felony convictions. Even if a perpetrator is not a gang member but only participates in a crime committed by a game member, the gang sentencing enhancement could turn a three- to five-year prison sentence into a term of twenty years or more.
Some states, such as Georgia, make it unlawful for anyone to be employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense specified in the law; among the prohibited conduct is stalking, statutory rape, escape from imprisonment, criminal damage to property, any crime involving violence, possession of a weapon or use of a weapon and more;
The term “criminal street gang” is defined to include any organization, association, or group of three or more people who are associated together and engaged in criminal gang activity. The existence of a gang may be established by evidence showing that the group has a common name or common identifying signs, symbols, tattoos, graffiti, clothing or other distinguishing characteristics, such as common activities, customs, or ritual behavior.
In Texas, the state RICO laws authorize harsh penalties for violations. For any offense committed while a person is engaging in organized criminal activity, the offense is classified as a higher degree of offense than the most serious offense that was committed. For example, if the crime committed would be a Texas “Class A” misdemeanor, it would become a state felony punishable by a term in state prison. So, for example, if a person is a member of a criminal gang and commits a burglary of a home, the person would be charged with a first degree felony since burglarizing a home normally carries a charge of second degree felony.
Many states have laws that prohibit elementary and secondary students from wearing gang-related clothing while on school grounds. This type of law does not include school uniforms but refers to any type of clothing which indicates gang membership through the wearing of certain colors, for example, or types of clothing.
Many states also make it illegal for anyone to recruit a person to participate in a criminal gang if membership in the gang is conditioned on committing any kind of criminal offense. Of course, simply talking to another person about membership in a club or group would not be criminal, however using force or threats to coerce a person into a gang that is engaged in criminal activity could be a crime.
Texas has such a law. The state of Montana makes it illegal to intentionally threaten a minor, i.e., a person under 18 years old, with physical violence on two or more separate occasions in order to coerce, induce, or solicit the minor to actively participate in a criminal street gang whose members engage in a pattern of criminal street gang activity.
In Colorado it is a misdemeanor punishable by up to 18 months in jail and a fine of up to $5,000 for an adult to intentionally solicit or recruit a minor under the age of 18 to actively participate or become a member of a gang. In California, it is illegal to use threats of force or intimidation to coerce a person to join a criminal gang and the penalty is enhanced if the victim is a person under 18 years of age.
Should I Meet with an Attorney about Gang Affiliation Laws?
If you are charged with participation in any type of organized crime or gang-related criminal offense, these crimes may result in years in prison. It is strongly recommended you speak to an experienced local criminal attorney to learn more about your defense options.
An experienced criminal lawyer can inform you of the possible penalties for the crime and whether they will be more harsh because of gang involvement. They can represent you in negotiations with the prosecutor and represent you in court hearings and at trial. You are most likely to get the best possible outcome in your ase if you have an experienced criminal defense attorney representing your interests.