Juvenile Gang Crimes in Georgia
Georgia's gang statute is extremely long and confusing. However, Georgia law enforcement officers have become very aggressive in arresting people, including juveniles, on gang-related charges. For this reason, it is important to understand Georgia's gang laws, especially as they play out in Georgia Juvenile Courts. Our Georgia Juvenile Gang Crime Lawyers understand all the intricacies and are prepared to help you today.
All violations of Georgia's gang statute are considered to be Designated Felonies. Most are Class A Designated Felonies – the most severe offenses heard in Georgia Juvenile Courts. Adjudication on a Class A Designated Felony can result in up to 5 years in a juvenile detention center. Class B Designated Felonies are slightly less serious, but can still result in substantial incarceration time. Other potential penalties will be discussed in greater detail below. Whether a juvenile is charged with a Class A or a Class B Designated Felony depends on the particular criminal act allegedly committed.
Evidence Required to Sustain a Conviction
The Georgia Court of Appeals laid out the elements of the offense in Zamudio v. State. It held that, in order to sustain a conviction (or, in a Georgia Juvenile Court, an adjudication) under the Georgia Criminal Street Gang Terrorism Prevention Act, the State must prove:
- That Defendants were, in fact, associated with a criminal street gang,
- That they committed a predicate act of criminal gang activity, and
- That the commission of the predicate act was intended to further the interests of the criminal gang.
Zamudio v. State, 332 Ga.App. 37 771 S.E.2d 733 (2015).
Each of these elements must be proven beyond a reasonable doubt, and each of these are broken down in more detail below. It is important to note that, per Zamudio and other case law, evidence of gang membership alone is not sufficient to sustain a juvenile adjudication for participating in criminal gang activity. Freedom of association, while not expressly enumerated in the U.S. Constitution, has nonetheless been deemed by the Supreme Court of the U.S. to be an essential part of the freedom of speech guaranteed by the First Amendment to the U.S. Constitution. NAACP v. Alabama, 357 U.S. 449 (1958).
Proof of Gang Membership
Gang membership may be proven through a variety of methods. However, the trier of fact – in Georgia Juvenile Court cases this would be the judge – takes into account the totality of the facts and circumstances surrounding the case. In the past, judges have taken into account a multitude of factors to determine whether a juvenile is involved in a gang. These include:
- Defendant had tattoos bearing similarities to known gang motifs,
- Defendant possessed gang paraphernalia,
- Defendant admitted gang membership,
- Defendant was observed wearing attire/colors associated with street gangs,
- Defendant publicly displayed symbols and using language associated with a gang,
- Defendant posted social media posts discussing or indicating gang membership,
- Defendant was seen in photos throwing “gang signs.”
These are merely examples of the kinds of evidence that judges take into consideration. They also rely heavily on the testimony of experts.
Many law enforcement agencies have increased their focus on criminal street gangs in recent years. As a result, many have developed specialized gang task forces. These investigators work predominantly gang cases and are frequently called to be witnesses for the State in gang cases.
Task force investigators have varying degrees of training – some are more self-styled “experts” while others have gone through hundreds of hours of training and have focused almost their entire careers on working gang cases. Because of the increased reliance on expert witness testimony, it is important to choose a Georgia Juvenile Court Attorney with experience in the cross-examination of expert witnesses. Attorneys with this kind of experience know how to call into question an “expert” witness's training and experience (or lack thereof) as well as their methodology, reasoning, and the evidence used to reach their conclusions. Even good experts can and should be cross-examined, as their conclusions are only as good as the evidence they are relying on. Effective cross-examination of an expert witness can seriously damage the State's case and lead to victory in a Georgia Juvenile Court Gang case.
Commission of a Predicate Act of Gang Activity
The predicate offenses required to prove this prong of the gang statute are enumerated in several statutes: O.C.G.A. § 16-15-3, O.C.G.A. § 16-15-4, and O.C.G.A. § 16-14-3. For juveniles, it is the predicate act itself that determines whether the offense is classified as a Class A Designated Felony or a Class B Designated Felony (which determines the possible punishment upon adjudication – discussed below).
Georgia law is extremely broad, and there are a multitude of offenses that may be used to satisfy the gang statute. These include (but are not limited to):
- Unlawful distillation, manufacture, and transportation of alcoholic beverages;
- Assault and battery;
- Kidnapping and false imprisonment;
- Prostitution and/or pimping;
- Smash and grab burglary,
- Arson and explosives-related charges;
- Financial transaction card fraud,
- Attempted murder or threatening witnesses,
- Influencing witnesses,
- Tampering with evidence,
- Terroristic threats,
- Firearms violations,
- Commercial gambling,
- Violations of the Georgia Controlled Substances Act, and
- Felony marijuana possession.
- Aggravated sodomy,
- Statutory rape,
- Aggravated sexual battery,
- Aiding or encouraging a child to escape from custody.
- Any criminal offense in the State of Georgia or any other state that involves violence, possession of a weapon, or use of a weapon, and
If a juvenile is adjudicated delinquent under the Georgia gang statute and the predicate offense is one of the ones listed above, the offense will be considered a Class A Designated Felony.
The only offense that results in Class B Designated Felony adjudication under the gang statute is criminal trespass relating to gang-related painting on, tagging, marking, writing on, or creating any form of graffiti on the property of another.
Predicate Act Must Further the Interests of the Gang
The third and final element that the State must prove to secure an adjudication under the Georgia gang statute is that the predicate act must further the interests of the gang. The State “must prove something more than the mere commission of a crime by gang members; instead, the State had to prove the existence of a nexus between the crime and an intent to further street gang activity.” In the Interest of W.B., 342 Ga.App. 277, 801 S.E.2d 595 (2017). There is no hard-and-fast rule for determining whether a sufficient nexus exists; it depends on the circumstances. However, prior cases are instructive. Cases wherein Georgia appellate courts have found a nexus include cases where:
- Evidence showed that the crime was committed in retaliation for an insult against the gang or its members. In the Interest of W.B., 342 Ga.App. 277, 801 S.E.2d 595 (2017).
- Evidence showed that the victim in a battery case waved a bandana with a rival team's colors and started talking about the rival gang just before the battery occurred. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).
- Evidence showed that the defendant planned a robbery to take over the victim's drug territory and to train or promote gang members. Nolley v. State, 335 Ga.App. 539, 782 S.E.2d 446 (2016).
- Evidence showed that the juvenile engaged in a fight with a member of a rival gang because he knew that fighting would “get his rank back up” in the gang. In re X.W., 301 Ga.App. 625, 688 S.E.2d 646 (2009).
However, the Court of Appeals did not find a nexus in a case where the defendant procured small amounts of marijuana and sold them to multiple gang members for personal use, where the defendant's actions did not “benefit gang itself through monetary profit, enhanced reputation, or other means.” Randolph v. State, 334 Ga.App. 475, 780 S.E.2d 19 (2015).
Possible Dispositions in Georgia Juvenile Court Gang Cases
A disposition is the same as a sentence in adult court. Once an order of adjudication is entered, the Juvenile Court has 20 days before it must enter an order of disposition. In serious cases like the ones discussed in this article, the court will sometimes hold a separate disposition hearing to hear evidence about what the most prudent disposition should be. The Juvenile Court may ask for advice from the juvenile probation department, psychologists, the child's parents, character witnesses, representatives from the school system, and the attorneys on both sides. The Juvenile Court may also hear from the victim, if applicable.
Once the court hears all evidence pertaining to disposition, the judge then decides whether the child requires placement in restrictive custody. If the judge decides that restrictive custody is required, the resulting disposition depends on whether the child was adjudicated for a Class A or a Class B Designated Felony. Remember, the vast majority of gang-related charges fall into the Class A category.
A child who is adjudicated on a Class A Designated Felony must be placed in DJJ custody for five years, and the judge may order that the entire five years be served in restrictive custody. If the judge chooses to sentence the child to less time in restrictive custody, the balance of the five years must be served in DJJ custody, which may or may not be back in the parents' home.
A child who is adjudicated on a Class B Designated Felony must be placed in DJJ custody for three years, and the judge may order that up to 18 months of that be served in restrictive custody, with the balance being served in DJJ custody.
If the judge decides that restrictive custody is not required, he or she may order a variety of things, including:
- Counseling services for the child and/or the parent;
- That the child obtain a high school diploma or GED;
- Community Service;
- A fine; and/or
- Suspension of the child's driver's license.
- Placement of the child in an institution, camp, or other facility for delinquent children;
- Commitment to the Georgia Department of Juvenile Justice;
- Placement in a Georgia Juvenile Detention Center for up to 30 days (with credit for any time served at the time of arrest).
A Note Regarding Placement in DJJ Custody
Once a child is adjudicated on a Class A or Class B Designated Felony, and the judge decides that restrictive custody is required, commitment to the Department of Juvenile Justice (DJJ) is an inevitability. It is also something that judges may order even if they do not believe that restrictive custody is necessary.
Commitment is a legal designation, and juveniles who are committed to DJJ are no longer legally in their parents' custody but are instead essentially wards of the state (much like kids who are in the custody of the Department of Family and Children's Services). This means that parents lose control of much of their child's life, including where the child lives.
When a child is committed to DJJ, DJJ completes a screening process. The parent and child are typically involved and are able to give input, but their preferences are not binding. DJJ takes into account the child's record, school performance, medical and psychological needs, and any other factors they deem relevant, and determines the best placement for the child. This placement may be a juvenile detention center, a drug treatment facility, a mental health facility, or a sex offender treatment center, or it may be the parent's home with intensive outpatient or community-based interventions. Thus, even a child who was not sentenced by a judge to incarceration may still end up in a juvenile detention facility.
Why hiring a Georgia Juvenile Attorney is Crucial in a Juvenile Gang Case
Georgia Juvenile Courts, like most courts in Georgia, take gang-related crimes extremely seriously. Gang charges are among the most serious cases brought in juvenile courts. But that does not mean that they cannot be won. Overzealous police officers, investigators, and school personnel do make mistakes in these cases, and the importance of having an attorney who knows how to find those mistakes cannot be overstated. It can be the difference between a child who is finishing high school and going off to college and a child who is getting a GED in a juvenile detention center. If your child has been charged with a gang-related offense in a Georgia Juvenile Court, do not hesitate, because juvenile cases move quickly. Call us today.