The Case for Restricting Gang Enhancements in California

Patrick Lopez-Aguado

Street gangs have long been a focal point of moral panics and racial animosities in California. After years of escalating violence and visibility throughout the 1980s, these public fears of gangs came to a head in 1988, when a conflict between two Los Angeles-based groups culminated in a shootout in the affluent, White commercial district of Westwood, killing an uninvolved bystander. In the following weeks LAPD chief Daryl Gates spotlighted the shooting in a Los Angeles Times op-ed, raising an alarm of the threats posed by “our common enemy, a wantonly violent member of a street gang.” Capitalizing on public anxieties that gang violence could happen anywhere—not only in segregated Black and Brown neighborhoods—the California legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act the same year. As part of its pledge to “eradicate” street gangs, the STEP Act essentially did two things: it made membership in a criminal street gang a felony in itself, but more importantly, it imposed greater punishments for criminal offenses committed “for the benefit of, at the direction of, or in association with” a street gang. 

These greater punishments are imposed through sentencing enhancements (commonly referred to as gang enhancements) that add years of imprisonment to the criminal sentences handed down for felony convictions. When a suspected gang member is charged with a crime, they are given an additional charge of being a member of an active street gang, which adds up to 10 years to the sentence. The STEP Act adds two to four years to gang members’ sentences for most felony convictions, five years for serious felonies, and 10 years for violent felonies. To convict someone on a gang membership charge, prosecutors must convince a jury that the person is a member of (or at least operating on behalf of) a criminal street gang, and that their felony offense promoted, advanced, or benefited that gang. 

How is gang membership legally determined?

The sentencing enhancements imposed by the STEP Act are designed to criminalize gang involvement, but the process for “validating” someone as a gang member is notoriously subjective. The bill’s definition of gangs—“any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [many enumerated] criminal acts . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity”—is vague enough to potentially describe almost any group of people who break or have broken a law. Consequently, gang validation in practice means that officers simply identify the populations or communities that they view as criminal. 

A 2015 California audit of Calgang, the statewide database of validated gang members and associates, found that some of the most common reasons individuals were listed included “wearing gang dress,” having “gang tattoos,” or “frequenting gang areas,” all of which rely on the individual discretion of the officer filing the entry as to which areas, tattoos, or dress constitute gang membership. Racialized histories and understandings of criminality and violence inescapably inform who officers see as gang-involved.[1] Russell-Brown, Katheryn. 2009. The Color of Crime. New York: New York University Press. Systems for identifying gang members are also designed to implicate entire peer networks—when one person is added, their friends and relatives often soon follow as associates, snowballing until it reaches the raced and classed boundaries that typically contain one’s personal contacts.[2]Parenti, Christian. 2000. Lockdown America: Police and Prisons in the Age of Crisis. New York: Verso.  

As these patterns harden over time, and the styles, spaces, and relationships of young people of color are consistently marked for suspicions of gang activity, they continue to designate gang membership as a legal status designed to rationalize the intensified punishment of Black and Brown people. This punishment occurs not only through the lengthier periods of incarceration mandated by sentencing enhancements, but also through means of social exclusion such as school expulsion, residential displacement, or denial of citizenship or legal residency for immigrants.[3]Lopez-Aguado, Patrick. 2018. Stick Together and Come Back Home. Berkeley: University of California Press.

Gang membership is most commonly validated or documented during police stops, while in custody, or even during trial. However, the social position that law enforcement officers hold relative to the civilians they suspect of criminal wrongdoing likely compels them to regard a broad range of appearances or behaviors as evidence of gang activity. For example, in 2010, when Victor Rios and Karlene Navarro  compared the courtroom testimonies of police gang experts against the perspectives of former gang members, outreach workers, and community members, they found these “official” assessments to be frequently in disagreement, particularly when law enforcement interpreted youth styles, mannerisms, behaviors, or relationships as gang-involved or gang-related.[4]Rios, Victor M and Karlene Navarro. 2010. “Insider Gang Knowledge: The Case for Non-Police Gang Experts in the Courtroom” Critical Criminology 18:21-39. The authors tie this discrepancy to the conflict of interest inherent in asking police to objectively identify gang members while they are also rewarded for surveilling, confronting, and punishing gang members, yet it is typically such officers who decide gang validation. Worse still, there is little oversight of who is validated or how, leaving the label of “gang member” vulnerable not only to bias and misinterpretation, but also to outright fabrication. Such was the case when over a dozen officers in Los Angeles were caught falsifying Calgang entries in 2019, or when officers invented a gang to explain a string of homicides in a poor Black community because they didn’t understand the complicated interpersonal dynamics and conflicts at work in the neighborhood.[5]Duck, Waverly. 2015. No Way Out: Precarious Living in the Shadow of Poverty and Drug Dealing. Chicago: University of Chicago Press. 

It is also important to consider how the procedures that carceral institutions use to classify incarcerated populations as gang members and affiliates further complicate this validation process. Correctional officers working in juvenile detention facilities or county jails often separate people who are incarcerated according to racial conflicts or gang rivalries in the facility; in this racial sorting process, officers not only pressure unaffiliated Black and Latinx individuals to “pick a side” along these divides, but then record these residents’ “choices” in probation files as gang affiliation or association.[6]Lopez-Aguado, Patrick. 2018. Stick Together and Come Back Home. Berkeley: University of California Press; Walker, Michael. 2016. “Race Making in a Penal Institution.” American Journal of … Continue reading This process provides almost a quarter of all Calgang listings; it even extends into continuation schools for teenagers on juvenile probation who have been expelled from public schools, where Black and Brown students are similarly categorized into racialized collectives of presumed gang affiliates. These classifications are recorded in probation files that inform students’ future encounters with police, courts, or school officials.[7]Id. Through this process, teenagers are documented as gang members and associates simply by being referred to the justice system in the first place. 

Racialized processes for determining gang affiliation such as these maintain gang membership as a criminal status that is almost exclusively applied to people of color. Over 85 percent of people validated as gang members in California are Black or Latinx, and the extreme discrepancies in some communities make the targeted application of this label painfully obvious. For example, of the 1,101 names that the San Jose Police Department had listed in Calgang in 2020, 992 are categorized as Hispanic, while only 26 are white. Latinx residents make up only about 33 percent of San Jose’s population, yet somehow represent 91 percent of the city’s validated gang members.  

Gang enhancements and mass imprisonment

Gang enhancements operate under the assumption that longer periods of imprisonment will control the threat that gang members supposedly pose to the public by incapacitating them for longer periods of time, or deterring them from offending in the first place. In reality they have no discernible effect on reducing violent crime rates, rates of gang membership, or recidivism among people identified as gang members, but they do aggravate the structural racism prevalent throughout the criminal legal system.[8]Van Hofwegen, Sara Lynn. 2009. “Unjust and Ineffective: A Critical Look at California’s STEP Act” Southern California Interdisciplinary Law Journal 18:679-702.  

The use of gang enhancements implements and rationalizes a tiered system of punishment within which Black and Brown individuals are subject to longer prison sentences than White people—even when convicted of the same crime—simply because they are far more likely to be labeled as gang members. Indeed, the extreme racial disparities in Calgang entries grow even more lopsided when looking at how these inform imprisonment, as 92 percent of California prison residents serving time with gang enhancements in 2019 were Black or Latinx. But the STEP Act’s effect on racialized mass imprisonment in California is still more extensive, because even when they do not actually file gang enhancements, prosecutors still commonly use the threat of an enhanced sentence and the years of prison time it can add to pressure individuals into guilty pleas. Gang enhancements have contributed to a broader pattern of cumulatively warehousing people in state prisons (in part) because of exceedingly long sentences legislated throughout the 1980s and 90s—about 70 percent of people in California prisons now have at least one sentencing enhancement attached to their conviction. Yet despite the rising years and stakes attached to felony convictions, only about two percent of felony cases in California ever actually make it to a jury trial, meaning that plea bargaining and the tools used to leverage guilty pleas are fundamental mechanisms structuring the vast majority of imprisonment in the state. 

Challenging the continued use of gang enhancements

Earlier this year, Southern California State Senator Sydney Kamlager introduced a bill that would limit the applicability of gang enhancements while also adding restrictions that would make enhancements more difficult to pursue. Under the original proposed version of Kamlager’s bill, prosecutors would have to be much more specific about why they believe a particular offense benefited a criminal street gang; they would have to identify a specific group member or members who benefited from the commission of the accused crime besides the person accused of the crime; they would have to prove that the accused actually knows the person supposedly benefiting from their offense; and they would have to demonstrate that this benefit is more than simply reputational. This last point is particularly important, not only because a reputational benefit is an intangible quality that is subjective and impossible to measure, but also, following the logic of a law that defines committing crime as the “primary activity” of street gangs, any criminal charge could then be argued to benefit a gang’s criminal reputation simply by virtue of it being illegal. Because it demands so little from prosecutors, one of the most common arguments presented in gang enhancement cases is that the accused offense benefited the reputation of a street gang by making the gang seem more criminal, and that this elevated reputation helped other members commit more crimes by intimidating others. This circular logic about public reputation is even applied in small-scale, individual acts with no victims or witnesses, cases that few people besides the individual and their family would even be aware of. 

Kamlager’s bill also places greater restrictions on which peer groups may be considered criminal street gangs. In order to charge a person with a gang enhancement, the STEP Act requires prosecutors to first establish that a group is a criminal gang by demonstrating a pattern of criminal behavior that can be attributed to group members. The STEP Act defines a pattern of criminal behavior as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” offenses from a list of over 30 eligible criminal charges. Despite the years of imprisonment at stake, the bar for demonstrating this criminal pattern is minimal, accomplished by connecting a defendant to the documented criminal histories of just one or two other alleged members. Kamlager’s bill adds more restrictions to establishing this pattern by stipulating that it cannot include the underlying offense for which the individual is currently being charged. Additionally, it requires that the offenses used to establish this pattern of criminal gang activity must have been committed by people that the prosecutor can show are known to the person being charged, and eliminates a handful of non-violent offenses like burglary, looting, vandalism, and various identity fraud charges from the list of offenses used to establish this pattern. The prosecutor must also demonstrate a clear hierarchy of members if the group is to qualify as a criminal street gang. 

Finally, Kamlager’s bill also creates the provision that if a person is charged with a gang enhancement, this accusation must be processed separately from the underlying offense. What this means in practice is that a person would have to resolve their original criminal charge with the court (by standing trial for example), and if they are convicted on this count, then a separate proceeding would be held to address the charge for participating in a street gang and to consider the applicability of the gang enhancement for sentencing. Kamlager’s bill would also require that “a charge for active participation in a criminal street gang be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime.” In many cases this would require prosecutors to essentially try a person twice in order to get the gang enhancement, which would demand more resources from the district attorney’s office and may therefore limit how often prosecutors can pursue enhancements. This may also reduce coercive plea bargaining, as the threat to pursue an enhanced sentence becomes a less effective bargaining chip if it is more difficult to execute.

Moving forward

Kamlager’s bill could significantly reduce the use of gang enhancements in California. Because gang labeling operates on intentionally vague and flexible applicability, the bill’s strategy for mitigating this criminalization is through requiring specific evidence. Kamlager’s bill would challenge officer discretion on gang involvement by imposing requirements that few cases today would actually meet. There is also reason to be optimistic that a statewide reform combined with regional developments in a number of California cities to abolish or place moratoriums on gang enhancements or injunctions could drastically change how the state polices and punishes suspected gang involvement. 

However, it would be naïve to assume that prosecutors would not also change how they pursue gang enhancements, particularly if there is still political capital to be gained by appearing tough on crime or by vilifying gangs. A critical possibility to consider with any reform is how it could potentially backfire in ways that inadvertently strengthen the very institution it seeks to make more humane.[9]Schoenfeld, Heather. 2010. “Mass Incarceration and the Paradox of Prison Conditions Litigation.” Law & Society Review 44(3/4): 731-768. For example, how might the extra burdens and restrictions placed on district attorneys prompt calls for more resources specifically dedicated to litigating gang cases? Might law enforcement take the greater levels of detail necessary for litigating gang enhancements as justification to secure more invasive forms of surveillance?

To be clear, there are no appropriate instances for using a gang enhancement. Even if they’re only reserved for the most violent individuals in the most heinous cases, gang enhancements are still fundamentally a tool for sending poor people of color to prison for longer periods of time than White folks convicted of the same offense. This unequal application is inescapable given how thoroughly American society has racialized the concept of “gangs,” and because of this any use of this status as a justification for imprisonment has no place in any system truly invested in seeking justice. Gang-involved persons should obviously be held accountable for any harm they may be responsible for, but establishing a unique status for Black and Latinx communities that mandates a separate system of escalated punishments is not justice. Abolishing gang enhancements and repealing the STEP Act altogether is necessary, because there is no just way to criminalize gang membership.

References[+]

The Case for Restricting Gang Enhancements in California