Although the exact definition will vary by jurisdiction, a gang is any organization, association, or group of three or more persons, whether formal or informal, which commits crimes as one of its primary activities. The group must also have a common name, an identifying sign or symbol, and members who individually or collectively engage in a pattern of crimes. If the members are of a certain age, the gang mmay be labelled as a youth gang.
Is it a Crime to be in a Gang?
While it is not necessarily illegal to be in a gang, many states have enacted laws aimed at deterring gang membership and gang activities. Many states have laws criminalizing loitering, which may make it illegal for gang members to congregate on the street. It is also important to note that conspiracy is a crime, so anyone who plans to commit a crime with another person may be guilty of conspiracy. In California for example it is also a crime to willfully promote or assist in any criminal conduct of a street gang.
What is a Gang Enhancement?
In many jurisdictions, there is a stiffer penalty for crimes committed by a "criminal street gang." If a crime is committed by a member of a criminal street gang, the defendant may face an additional 2 to 10 years in prison, which enhances the punishment for the underlying crime.
To have a gang enhancement, the prosecution must prove that the defendant actively participated in a gang, knew that the members of the gang engaged in a pattern of criminal practices, and that the defendant willingly promoted, furthered or assisted any conduct by that gang.
Note that the defendant need not be a leader of the gang or even a member of the gang to have a gang enhancement apply.
A "pattern of criminal practices" are commissions, attempted commissions, solicitation, conspiracy, and/or convictions of two or more crimes committed on at least two separate occasions within a limited period of time. The pattern of criminal practices need not be gang related.
Are There Any Defenses To Gang Enhancement?
Yes. There are a number of defenses that can be used to deny or alleviate gang affiliation. These include, but are not limited to:
- Racial Profiling – Police often consider certain racial groups more likely to be in a gang than other groups. However, this is an illegal means to add enhancements to a crime.
- Association Fallacy – A defendant may know a gang member, but that does not mean that the defendant is part of the gang.
- Crime Not Done In Connection With the Gang – Although a defendant may be a gang member, that does not automatically mean that the defendant committed the crime because of the gang. Although previous crimes necessary to establish that a group is a gang do not require that the crimes be gang related, the actual charge must be gang related in order to have the gang enhancement count. This defense can serve the accused perpetrator or the gang members who are part of the conspiracy charge.
- Defeat the Underlying Felony – If the defendant is acquitted of the actual felony, then all the enchantments attached to it also disappear.
Is Gang Membership a Form of Terrorism?
In New York a group of gang members were arrested under state anti-terrorism laws because they intended to "intimidate or coerce a civilian population." The state anti-terrorism law also provides for stiffer penalties for crimes committed if the crime is considered a form of terrorism.
Do I Need a Lawyer for my Gang Problem?
If you have been accused of a crime you should speak to a criminal defense attorney immediately. An experienced criminal defense lawyer can advise you of your rights, legal defenses, and the complicated legal system.