Attorneys have long criticized the racism present in today’s criminal justice system, pointing to one important but underrepresented means through which minorities are unjustly prosecuted: gang enhancements.
Gang enhancements have continuously targeted minority groups, adding unjust and oftentimes unnecessary sentence extensions to those involved with any gang related conduct. In fact, the San Francisco Public Defender’s Office reports that 92% of all gang enhancements are given to people of color.
These gang enhancements have the power to increase a misdemeanor conviction to a felony sentence or, if added to an existing felon convection, can impose two additional years or a sentence of life in prison.
To add a gang enhancement onto the sentence for the already charged crime, prosecutors must prove not only that the defendant committed the crime in question, but that the defendant did so in association with a gang. However critics oftentimes point to the law’s vague verbiage that require relatively low standards of proof.
California Assembly Bill 333 (AB 333) hopes to address the holes in the gang enhancement law and the racial disparities that result. The bill passed Assembly in June 2021, passed the Senate in Early September, and was effectively signed into law on October 8 2021 by state Governor Gavin Newsom.
Sometimes referred to as The STEP Forward Act, AB 333 hopes to accomplish 3 main things.
1) Changing what is meant by a “criminal street gang” AB 333 first set out to refine the vague and oftentimes misleading definition of a “criminal street gang” outlined under the old gang enhancement laws, which interpreted a gang as a group of 3 or more people that identify under a common name/identifying symbol who exhibit a pattern of criminal activity either individually or collectively. Under this flawed definition, individual illegal actions taken by a member of a group could be used to show a pattern of criminal activity for the group of the whole. The new gang enhancement laws proposed under AB 333 however removes the word “individually” from its definition, emphasizing that to be considered a gang, the group in question must collectively engage in criminal activity. This slight but important change to the law ensured that individuals were not being prosecuted for another person’s crimes.
2) Tightening the requirements necessary to prove gang affiliation
In addition to the change to the definition of a “criminal street gang,” AB 333 sought to address the loopholes of the original legislation that allowed for the over distribution of gang enhancements. By imposing stricter requirements to prove gang affiliation, AB 333 makes it more difficult to add a gang enhancement to a defendant’s sentence. Under old gang enhancement laws, prosecutors were only bounded by 2 loose restrictions:
1) They had to prove that the crime committed was done for the benefit of a criminal gang.
2) They had to prove that the defendant intentionally assisted the pursuits of a street gang.
The new gang enhancement laws refine these requirements, stating that gang enhancements may only be introduced if the prosecutor can prove that:
1) The crimes committed form a pattern of criminal gang activity.
2) The crimes have benefitted a criminal street gang, and the common benefit must be more than reputational.
Oftentimes under the old gang enhancements law, the underlying charge was used to prove a pattern of criminal activity. This reformed definition prohibits such a practice by requiring prosecutors to show that the defendant has participated in past criminal activity and that the crime in question merely added to that pattern of behavior.
Furthermore, by emphasizing that the “common benefit must be more than reputational,” the law ensures that prosecutors can no longer use circumstantial evidence, like an individual’s relationship to a gang-ridden community or to a family member who is a part of a gang, to make baseless claims about a defendant’s gang association. Rather, AB 333 requires the presentation of direct and concrete evidence that reveals a strong and valid connection to a gang.
3) Reduce the numbers of offenses that allow gang enhancements.
Under California law, there are only certain types of crimes that allow for the extension of a sentence through gang enhancements. AB 333 hopes to shorten that list of crimes consequently hinder the racially targeted consequences of these enhancements. AB 333 has effectively removed looting, felony vandalism, and specified personal identity fraud from this list.