STEPPING INTO THE 'WRONG' NEIGHBORHOOD: A CRITIQUE OF THE PEOPLE V. ALBILLAR'S EXPANSION OF CALIFORNIA PENAL CODE SECTION 186.22(a) AND A CALL TO REEXAMINE THE TREATMENT OF GANG AFFILIATION.

Author:Dipietro, Samuel
 
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Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious criminal conduct by gang members instead of solely gang-related felonious conduct. The court's holding in Albillar essentially allows a defendant who is affiliated with a criminal street gang to receive an additional sentence for the commission of any felonious crime regardless of whether the crime had any relationship to the defendant's gang membership. This Comment argues that such an application of Section 186.22(a) runs afoul of the Supreme Court's holding in Robinson v. California, where the Court held that punishing an addict for his status of being addicted to drugs amounted to cruel and unusual punishment. While Section 186.22(a) does require a felonious act unlike the statute in Robinson, this Comment examines the Supreme Court's holdings regarding the constitutionality of hate crime enhancements and concludes that the California Supreme Court's holding in Albillar exceeds constitutional bounds. This Comment concludes by examining the policy rationale behind the Robinson holding and applying that rationale to gang membership, suggesting that treatment, as opposed to imprisonment, might be the proper solution to California's criminal street gang problem.

INTRODUCTION I. THE STEP ACT & SECTION 186.22 A. A Brief History of the STEP Act B. Section 186.22: A Substantive Crime and a Criminal Enhancement II. THE PEOPLE v. ALBILLAR AND SECTION 186.22(A)'S EXPANSION TO INCLUDE NON-GANG-RELATED CRIMES A. People v. Albillar. Background, Crimes, and Convictions B. Subsequent Appeal and the California Supreme Court Holding C. Significance of Holding and Post-Albillar Decisions III. ROBINSON v. CALIFORNIA & POWELL V. TEXAS: WHEN DOES PUNISHING A STATUS GO TOO FAR? A. The Requirements of Culpability: Actus Reus and Mens Rea B. California's Ban on Drug Addiction and the Supreme Court in Robinson C. Powell v. Texas: Defining the Limits of the Robinson Doctrine D. Contrasting Robinson with Powell: Punishing a Desire as Contrasted with Punishing an Action IV. APPLYING ROBINSON AND POWELL TO SECTION 186.22(a) A. As a Substantive Offense, Section 186.22(a) Should Be Deemed Unconstitutional B. If Classified as An Enhancement Offence, Section 186.22(A) Should Be Deemed Unconstitutional V. GANG AFFILIATION SHOULD BE TREATED THROUGH REHABILITATION RATHER THAN THROUGH CRIMINALIZATION AND IMPRISONMENT A. Why Punishing Addiction Amounts to a Cruel and Unusual Punishment B. The Policy Rationale for Treating Rather than Imprisoning Drug Addicts Also Applies to Gang Affiliates CONCLUSION INTRODUCTION

What do we know to be true about gang violence? We know we will fail if we fixate on the symptoms and not address what undergirds it. (1) Imagine a world where a society has determined that fraternities are against social policy. However, a Constitution prevents this society from punishing mere fraternity membership, so the society creates a law that increases the punishment for active fraternity members who commit crimes by up to three years. By including an underlying criminal offense, this society deems that the law does not punish being a member of a fraternity, but only fraternity members who commit crimes. But this additional sentence only applies to fraternity members when they commit a crime; if a non-fraternity member committed the same crime, they would not receive an additional sentence. Since it is difficult to determine who is a fraternity member, courts in this world allow fraternity experts to testify as to whether a defendant is a member of or associated with a fraternity. Furthermore, prosecutors can present evidence of a defendant's fraternity association, such as a defendant's family history, fraternity membership, the community where a defendant lives, and even the type of clothes that a defendant wears. In the context of fraternity membership, such a world might seem absurd. But this world is very real in the context of gang membership and gang affiliation in California under the Street Terrorism Enforcement and Prevention Act (STEP Act), codified in Section 186.22 of the California Penal Code.

In the past decade, numerous journal articles have critiqued and often criticized the STEP Act; however, the Act has fallen out of the jurisprudential spotlight as of late. This is despite several California Supreme Court decisions that have expanded the applicability of the Act to encompass more and more criminal activities. In addition, in the past few years, other state courts have begun to question the constitutionality of their gang enhancement provisions when examining similar gang enhancement statutes. (2) Therefore, it is time that the STEP Act is reexamined.

This Comment examines the modern-day STEP Act, discusses the impact of People v. Albillar s interpretation of Section 186.22(a) to include non-gang-related felonies, and argues that Section 186.22(a) has exceeded Constitutional limits in light of the Supreme Court's decisions in Robinson v. California and Powell v. Texas. This Comment then proceeds to argue that, as a matter of public policy, gang affiliation--like drug addiction--is better treated through rehabilitation programs as opposed to imprisonment. Part I of this Comment summarizes the history of the STEP Act and introduces Sections 186.22(a) and 186.22(b). Part II introduces and discusses the importance of People v. Albillar's expansion of Section 186.22(a) to include non-gang-related felonious offenses. Part III introduces the foundational requirements of culpability and examines the application of these requirements in the Supreme Court cases Robinson v. California and Powell v. Texas. Part IV then applies Robinson and Powell to Section 186.22(a), concluding that Section 186.22(a), post-Albillar, is unconstitutional. Part V makes a policy related argument that, like drug addiction, gang affiliation should be treated with rehabilitation rather than punished with imprisonment.

  1. THE STEP ACT & SECTION 186.22

    1. A BRIEF HISTORY OF THE STEP ACT

      Anti-gang legislation increases the ability of prosecutors to prosecute gang activities. Examples of anti-gang legislation are statutes that criminalize gang recruitment and gang solicitation. (3) Anti-gang legislation is oftentimes justified based on the notion that gangs protect their associates and, because many gang crimes are committed in groups, it is more difficult for law enforcement to curb gang crime absent laws that specifically target gang members. (4) This justification is what led California to become the first state to adopt anti-gang legislation through the adoption of the STEP Act in 1988. (5)

      The preamble to the STEP Act (the Act) provides that the Act was enacted to address the nearly 600 criminal street gangs operating in California. (6) The Act attempted to curb gang membership by making it a criminal offense to engage in certain gang activities. (7) Almost immediately after enactment, the Act was in the public spotlight. (8) Dubbed "Baby RICO," enforcement of the Act began with police officers asking suspected gang members to sign "special-delivery notices" that served to notify suspected gang members of the new law; these were considered admissible as evidence of gang membership in court. (9) Enforcement of the Act immediately became controversial in 1989 when police, relying on the Act, arrested a mother for allegedly supporting her son's gang involvement. (10) Specifically, the mother was arrested for failing to supervise her son and for creating an environment that encouraged his gang involvement. (11) While the mother's case was ultimately dismissed after she successfully completed a parenting program, such arguably broad applications of the Act led the American Civil Liberties Union of Southern California (ACLU) to file suit on the grounds that the Act was unconstitutionally vague. (12) The ACLU's lawsuit was successful, and within the first two years of the Act taking effect, the provision of the Act that was used to prosecute the mother was deemed unconstitutional for failing to define "reasonable parenting." (13) Since then various other provisions of the Act have also been challenged on constitutional grounds. (14) The Act's most commonly challenged sections are Section 186.22(a) and 186.22(b).

    2. SECTION 186.22: A SUBSTANTIVE CRIME AND A CRIMINAL ENHANCEMENT

      Section 186.22 of the Act contains both a substantive offense and a sentencing enhancement; Section 186.22(a) criminalizes actively participating in a criminal street gang and Section 186.22(b) enhances a sentence for committing crimes that benefit or promote a criminal street gang. (15) While these sections are distinct in the sense that they can be prosecuted separately, they can also be prosecuted simultaneously. (16) The ability to prosecute these offenses simultaneously can dramatically increase the minimum sentence for most felonies. For example, while a conviction for witness intimidation in California generally carries a maximum sentence of three years, the application of Section 186.22 can increase the sentence to life imprisonment. (17) This is due to any felonious offense committed under Section 186.22(a) or 186.22(b) counting towards California's "three-strike" law which increases the sentences for habitual offenders. Thus, a defendant could receive two strikes in the same complaint if he is convicted of violating both...

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