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

Samuel DiPietro | May 14, 2020

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.