WPIC 300.28 Aggravating Circumstance—Crime Committed to Obtain or Advance Position in Group [RC...

For the aggravating circumstance involving a crime committed to obtain or advance one's position in a group, use the applicable bracketed clause in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

RCW 9.94A.535(3)(s).

This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005). The pre-existing common law included two published cases in which an exceptional sentence was sustained based upon a defendant's membership in a gang. State v. Johnson, 124 Wn.2d 57, 873 P.2d 514 (1994); State v. Smith, 64 Wn.App. 620, 825 P.2d 741 (1992).

The statutory language was not, however, taken from these cases. Instead, it was taken from the aggravated murder statute, RCW 10.95.020(6). Under that statute, the aggravating circumstance applies to any crime committed for the purpose of enhancing the defendant's status within any kind of “identifiable group.” A “group” can be simply “a number of individuals bound together by a community of interest, purpose or function.” The “group” need not be organized in any way. State v. Monschke, 133 Wn.App. 313, 135 P.3d 966 (2006) (“white supremacists” constitute a “group”).

The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4). At a separate guilt trial, evidence of gang membership may be admissible when it establishes the motive for the crime. State v. Boot, 89 Wn.App. 780, 950 P.2d 964 (1998). The evidence is inadmissible, however, “when it proves nothing more than a defendant's abstract beliefs.” State v. Campbell, 78 Wn.App. 813, 822, 901 P.2d 1050 (1995).

This distinction is also supported by constitutional principles. Under the First Amendment, defendants cannot be punished for their abstract beliefs, or for their mere membership in gangs or other organizations. On the other hand, those beliefs or memberships can be used to enhance punishment if they are related to the defendant's crime. Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992).

The “group membership” aggravating circumstance is consistent with these evidentiary and constitutional principles. The statute does not allow an enhancement for mere membership in a gang or other group. Rather, the state must prove that the crime was committed for the purpose of obtaining, maintaining, or enhancing the defendant's status within the gang or group. See State v. Bluehorse, 159 Wn.App. 410, 423–31, 248 P.3d 537 (2011) (evidence insufficient to establish this circumstance).

For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing section 47:21 (3d ed.).