gang enhancements and racial injustice

​Social and legal commentators have observed that gang enhancements seem to be rarely applied toward the most serious and violent offenses, but instead are often applied toward misdemeanor offenses, disproportionately affecting people of color. According to the Young Women's Freedom Center "California's gang enhancement laws have caused immeasurable damage to our communities by criminalizing culture and relationships among people in low-income Black and Latino communities. While no empirical studies have been conducted to show that gang enhancements deter crime or violence, it is well documented that they have been applied inconsistently and disproportionately against people of color: 92% of people who receive gang enhancements are people of color. Gang enhancements have been the drivers of mass incarceration because of their vague definitions and weak standards of proof.”
 
Senator Kamlager, author of the bill that meant to change all this stated that the bill “just asks for the charges to be proven when they’re levied against someone. Right now, our system allows a shaved head, tattoos, or even the color of your grandma’s house as reason to be charged with a gang enhancement. That’s antithetical to how our judicial process should operate and I am glad we are one step closer to a fix.”
 
A recent change in the law is seeking to address these concerns. With regards to gang enhancements, “The Step Forward Act” does four things to try to rebalance the scales of justice.   First, it shortens the list of predicate offenses which support a finding that a person is engaged in a “pattern of criminal gang activity,” by removing looting, felony vandalism, and five personal identity fraud crimes from the list.[1]Second, it states that the current charge cannot be deemed one of these predicate offenses. Third, it states that the alleged benefit to the gang must be something more than a reputational benefit. In other words, the criminal activity must be something akin to obtaining a financial gain, an act of retaliation, targeting a perceived or actual gang rival, or the intimidation of a potential witness or informant.  Lastly, the definition of what a constitutes a “criminal street gang” is modified, requiring not only that it’s an “organization,” but also that it’s an “organized association.”[2] In determining whether there is an “organized association” the courts will be looking for telltales like the group having as shot-callers, a hierarchy, economic organization initiation processes, specific colors, articles of clothing or a code of conduct.
 
These changes were made in hopes that defendants who live in low-income areas, especially those of color, will no longer be viewed as gang members, simply because of criteria which are, in most cases, out of their control. 

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[1] The list of predicate offenses can be found in penal code section 186.22(e)(1)(A) through (e)(1)(Z).

[2] The definition of a criminal street gang is now: “any ongoing organization, association, an ongoing, organized 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 the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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.”