The shadowy domain of sentence enhancements

CA leads the nation in adult and juvenile life sentences. Most observers might assume life sentences derive from murder charges, but the majority of these sentences involve enhancements — certain factors that automatically trigger longer criminal sentences. Judicial discretion is removed from the equation of enhancements, so even if a judge favored leniency, they have no authority to act on such inclinations. There is an empirical gap in assuming harsh enhancements deter crime and evidence that supports such a theory. Ultimately, enhancements come down to fear & preservation of public safety, two seemingly innocent positions, but ones that combined with several other factors to produce hyper incarceration in CA.

The notorious Three Strikes sentencing law is certainly the most well-known enhancement, but its been altered and scaled back since Prop 36 in 2012. Gang membership, gun possession, and prior drug charges are among the most common enhancements applied in CA courtrooms. In most cases, these enhancements are served consecutively, not concurrently.

Gang membership is liberally enforced, but for reasons that may amount to nothing more than racial profiling. In 2000, Prop 21 (one of the harshest criminal justice voter initiatives), built on a 1980’s gang crime bill by designating a plethora of additional charges manifesting from gang activity. Prop 21 increased extra prison terms for gang-related crimes to two, three, or four years, but if serious or violent crimes were at play, the new extra prison terms would be five and ten years. For example, if a gang member were to be found guilty of theft, they would be sentenced for the theft plus an enhancement of 2-4 years for being gang affiliated. Simple gang association was also criminalized and subject to enhancements. Participating in a crime with a gang member means that one could be found guilty for a certain offense & an enhancement would be added to the base sentence if gang ties are suspected. It’s not difficult to understand how sentences began growing in duration under this sentencing framework. To correctly identify these gang members for enhancements, databases were established that require convicted gang members to register with local & state law enforcement agencies. But the markers of gang membership commonly boil down to race, clothing, and neighborhood. To state the obvious, young men of color bore the brunt of this tactic. A 2015 law review article exposed the rampant injustices proliferating from gang enhancements. Prosecutors devise methods to build gang enhancements (*ahem* racial profiling *ahem*) in a legal culture in which prosecutorial success is measured by the lengths of prison sentences they obtain. Even for those who are in gangs, there is little reason to believe enhancements deter gang membership. The root cause of gang membership may be said to be protection, or for a sense of belonging, two factors that are not remedied by enhancements.

Under CA gun laws, a sentence for a felony can be enhanced if a gun was possessed or used by an offender or an accomplice during commission of the crime. In such a case, the sentence for the underlying felony can be made longer — in some cases, much longer. The additional time racked up from gun enhancements (from one year to life) depends on:

• the type of firearm or weapon involved,
• whether one or another person involved with the crime used the gun,
• whether one used the gun or simply had it with it on their persons,
• the underlying felony offense, and
• criminal history.

In cases in which one or more gun enhancement is relevant, the enhancement that carries the longer potential prison term of imprisonment is applied. When a gun is used in a serious felony the ’10-20-life use a gun and you’re done’ rule is triggered.

• 10 years in prison for “using” a gun,
• 20 years for firing a gun, or
• 25 years to life for killing or seriously injuring another person with a gun.

The enhancement is in addition and consecutive to the sentence for the underlying felony conviction.

Drug enhancements delve into a more complex humanitarian issue — the criminalization of addiction. Under current CA penal law, a person convicted for sale or possession of a small amount of drugs can face a sentence of three to five years incarceration, plus an additional three years in jail for each prior conviction for similar drug offenses. The CA legislature is currently working to eliminate this particular drug enhancement, but the treatment of drug addiction remains a problematic strain on the criminal justice system.

Absent from this discussion of enhancements has been the prevalence of mandatory minimums in CA penal sentencing laws. When one considers the conglomeration of sentencing mandates, the force of mass incarceration becomes painfully transparent. But with this transparency comes simple avenues for reform. Eliminating enhancements is low-hanging fruit in the realm of prison reform, but would reap immediate benefits. Certain enhancements, like those for repeat sex-offenders need not be addressed, but gang enhancements are an obvious target for reform. Perhaps looking to the global community would help inspire meaningful corrective legislation.