Gangster Ethics: Lawful Obedience Or Lawless Resistance?

While the term gang is often used to refer to criminal groups, it can also be used more broadly to refer to any close or organized group of people. Gangs are generally defined by their shared identity, which is often linked to a name, symbols, and a street presence. Gangs are also characterized by their involvement in criminal activity, which can include robbery, drug and gun trafficking, prostitution, human trafficking, and fraud.

However, not all gangs are inherently criminal in nature. For example, anti-gang groups, vigilante gangs, and autodefensas are groups that profess to be fighting against gang influence, but share characteristics and act similarly to a gang. These groups include Los Pepes, Sombra Negra, and People Against Gangsterism and Drugs.

Additionally, the term gang can refer to groups that are not necessarily criminal but may be considered undesirable by some, such as fraternities.

Gang members convicted of serious felonies often receive harsher sentences than non-gang members

California Law

In California, gang members convicted of serious felonies often receive harsher sentences than non-gang members who commit the same crimes. This is due to the state's gang sentencing enhancement laws.

The California Street Terrorism Enforcement and Prevention Act ("STEP") is a key piece of legislation in this context. It defines a "criminal street gang" as a group of three or more people with a common name, sign, or symbol, one of whose primary activities is the commission of certain serious crimes, and who engage in a pattern of criminal gang activity.

Under STEP, if someone commits a felony for the benefit of a gang, with the specific intent to promote, further, or assist in the gang's criminal conduct, they will receive a mandatory prison sentence in addition to the penalty for the underlying felony. This is known as a sentencing enhancement.

Federal Law

At the federal level, there are also laws that punish gang membership and provide for enhanced sentences for gang-related crimes. The federal "Criminal Street Gangs" statute, 18 USC 521, is one such example. This statute provides for a penalty enhancement of up to 10 years for certain gang members who commit crimes with the intention of furthering the activities of the gang or maintaining or advancing their position within the gang.

Other federal laws, such as the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Violent Crimes in Aid of Racketeering Act ("VICAR"), also impose harsh penalties for gang-related crimes, including lengthy prison sentences and significant fines.

Defenses

It is important to note that being accused of a gang-related crime does not guarantee a conviction. Legal defenses to gang charges may include arguing that the underlying crimes were not committed, that the accused was not a gang member, or that the offenses were not connected to or in furtherance of the gang's illegal activities.

Laws punishing gang membership include felony sentencing enhancements

Gang membership is often punished by law, and gang members convicted of serious felonies may receive harsher sentences than non-gang members who commit the same crimes. Gang-related laws punishing membership fall into two general categories: felony sentencing enhancements and laws making it a crime to commit serious offences on behalf of a gang or to maintain or improve one's position in a gang.

Felony Sentencing Enhancements

Felony sentencing enhancements refer to additional penalties imposed on gang members for committing crimes. These enhancements are usually imposed in addition to the penalties for the underlying crimes. Here are some examples of such enhancements:

• California Penal Code 186.22 PC(b): This statute, also known as California's gang sentencing enhancement, mandates a mandatory prison sentence for anyone who commits a felony to promote or assist in a gang's criminal conduct.
• 18 USC 521: This federal statute provides a penalty enhancement of up to 10 years for gang members who commit crimes to further the gang's activities or enhance their position within the gang.
• 18 USC 1961-68: The Racketeer Influenced and Corrupt Organizations Act (RICO) punishes those who commit or conspire to commit two or more crimes ("predicate acts") to further the activities of a criminal enterprise, which can include street gangs. RICO violations can result in prison sentences of up to 20 years or life imprisonment, forfeiture of profits, and fines of up to $250,000.
• 18 USC 1959: The Violent Crimes in Aid of Racketeering Act (VICAR) punishes those who commit violent crimes to gain admission into or improve their position in a criminal enterprise. VICAR penalties can include prison sentences of up to 30 years, life imprisonment, or the death penalty, as well as fines of up to $250,000.
• 21 USC 848: The Continuing Criminal Enterprise statute (CCE) or "Kingpin" statute makes it a crime to lead a drug enterprise or commit murder while engaging in certain drug-related offences. CCE violations can result in prison sentences of at least 20 years, life imprisonment, or the death penalty, as well as forfeiture of profits and fines of up to $4,000,000 for individuals and $10,000,000 for organisations.

Laws Making Gang Membership a Crime

In addition to sentencing enhancements, certain laws make it a crime to commit felonies as a gang member or to commit serious offences on behalf of a gang. Here are some examples:

• California Penal Code 186.20-186.33: The California Street Terrorism Enforcement and Prevention Act (STEP) makes it a crime to participate in a street gang and assist in felony criminal conduct by gang members. Violation of STEP can result in up to three years in state prison.
• California Penal Code 186-186.8: The California Control of Profits of Organized Crime Act targets gang members who commit two or more felonies for financial gain, imposing forfeiture of profits as a penalty.

Gang-related sentencing enhancements are mandatory

In the United States, gang-related sentencing enhancements are mandatory and are covered by various state and federal laws.

California

In California, gang-related sentencing enhancements are covered by the California Street Terrorism Enforcement and Prevention Act ("STEP"), which is part of the state's Penal Code 186.22 PC. The STEP Act has two sections:

• The first section makes it a crime to join a street gang and participate in any associated criminal activity. Those found guilty of gang participation can be sentenced to up to a year in county jail or three years in state prison.
• The second section allows judges to hand down enhanced sentences for defendants deemed to have committed a felony for the benefit of a gang. This enhancement is an entirely separate sentence that runs consecutively with the initial penalty and can range from two years to 25 years to life, depending on the severity of the crime.

Federal

At the federal level, gang-related sentencing enhancements are covered by the Criminal Street Gangs statute (18U.S.C. 521). This statute provides for a penalty enhancement of up to 10 years for gang members who commit crimes with the intention of furthering the activities of the gang or to maintain or advance their position within the gang. The enhancement is in addition to the penalty for the underlying crime.

Other State Laws

Other states also have their own gang-related sentencing enhancement laws, which vary in their specifics but generally aim to increase the penalties for crimes committed by or for the benefit of criminal street gangs. These laws can be found in the penal codes of states including but not limited to Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, and Maryland.

Gang members can be charged with violating the Racketeer Influenced and Corrupt Organizations Act (RICO)

The Racketeer Influenced and Corrupt Organizations Act (RICO) is a United States federal law that provides for extended criminal penalties for acts performed as part of an ongoing criminal organization. RICO was passed in 1970 to strengthen legal tools in evidence gathering and establish new penal prohibitions and provisions for dealing with the unlawful activities of those engaged in organized crime.

To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise. The law defines 35 offenses as constituting racketeering, including murder, kidnapping, arson, drug dealing, bribery, and mail and wire fraud. These crimes are known as "predicate" offenses, and at least two of them must have been committed through the enterprise within a 10-year period to charge under RICO.

RICO allows for the prosecution of all individuals involved in a corrupt organization, including top leadership, hitmen, and capos. It also established enhanced sentences, including prison terms of up to 20 years and severe financial penalties. The law also allows prosecutors to attach assets so they cannot be moved before judgment.

Gang members can be charged with violating RICO if they engage in a pattern of racketeering activity in connection with a criminal enterprise, which can include a street gang. The enterprise must be a discrete entity, separate from the individual gang members. The gang members must have committed at least two predicate crimes within a 10-year period, and these crimes must be related in one of four specified ways to the enterprise.

The four specified relationships between the defendant(s) and the enterprise are as follows:

• The defendant(s) invested the proceeds of the pattern of racketeering activity into the enterprise.
• The defendant(s) acquired or maintained an interest in, or control of, the enterprise through the pattern of racketeering activity.
• The defendant(s) conducted or participated in the affairs of the enterprise "through" the pattern of racketeering activity.
• The defendant(s) conspired to do one of the above.

RICO also permits a private individual "damaged in his business or property" by a "racketeer" to file a civil suit. The plaintiff must prove the existence of an "enterprise," which is separate from the defendant(s). A civil RICO action can be filed in state or federal court, and both the criminal and civil components allow the recovery of treble damages (triple the amount of actual/compensatory damages).

RICO has been used to prosecute several gang members, including members of the Latin Kings, Hells Angels Motorcycle Club, and the Lucchese crime family.

The Violent Crimes in Aid of Racketeering Act (VICAR) punishes gang members who commit violent crimes to bolster their position in a criminal enterprise

The Violent Crimes in Aid of Racketeering Act (VICAR) is a federal statute that punishes gang members who commit violent crimes to bolster their position in a criminal enterprise. It was enacted in 1970 as an amendment to the Racketeer Influenced and Corrupt Organizations Act (RICO), which aimed to crack down on organised crime in the United States.

VICAR imposes harsh penalties on violent criminal acts committed in support of racketeering enterprises. It covers any violent crime committed by an individual or group, including murder or extortion activities to support the manufacturing, selling, or distribution of controlled substances. The purpose of the activity does not need to be solely to support racketeering activity.

To obtain a VICAR conviction, a prosecutor must show that a criminal organisation exists and is a racketeering enterprise. They must also prove that the defendant committed, attempted, or conspired to commit a violent crime and acted to promote their position in or gain entrance to the racketeering enterprise.

Penalties under VICAR are severe and include prison sentences of up to 30 years and fines of up to $250,000. For murder, the punishment can be life imprisonment or even the death penalty.

The law specifically enumerates various violent acts committed in support of an enterprise engaged in racketeering activity, including:

• Assault with a dangerous weapon
• Assault causing serious bodily injury
• Threatening someone with a violent crime
• Attempting or conspiring to commit any of the above

To convict an individual of a crime under VICAR, prosecutors must prove the following elements:

• The individual committed, attempted to commit, or conspired to commit one of the violent crimes listed above
• The individual did so in support of an organisation known to be a racketeering enterprise
• The individual did so either with the expectation of payment or to maintain or further their position in the organisation

Frequently asked questions