Gangs — Really a Gang or Hanging Out?

Children in gangs may seem like an urban problem — happening to those other people in the Big City — but more and more children are identifying themselves as being in a gang in the suburbs and rural areas.  It may be something as simple as three children saying they are in the 15th Street Gang because that is the street on which they live.  It may be more complex, like the Straight Edge affiliation, which can look like clean cut, preppy young males who abstain from drugs and alcohol.  But, they victimize unsuspecting random strangers with violent attacks, arrange for large battles between rivals in public areas, and have been classified as a gang by law enforcement.  Any gang affiliation follows the child in predisposition reports and presentence reports, and can impact the ultimate decision on disposition or sentencing.

Indiana Code 35-45-9-1 defines a criminal gang as a group of at least three members that either: (1) promotes, sponsors, or assists in or participates in or (2) requires as a condition of membership or continued membership; the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery at IC 35-42-2-1.  Therefore, in some jurisdictions, children who are with two other people who have been committing felony acts are being charged with participation in a criminal gang at IC 35-45-9-3, in addition to whatever other acts were committed.

The danger, and likely rationale, of that decision by the assigned prosecuting attorney to add the criminal gang participation allegation is that the juvenile court does not have jurisdiction over that crime pursuant to IC 31-30-1-4.  The case will be filed directly in criminal court without juvenile court intervention or a waiver hearing.  In Indiana, there is no “reverse transfer” so even if the gang activity allegation that caused the case to go to criminal court is ultimately dismissed, the cases remain in criminal court and do not get reassigned to juvenile court.

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