Utah's Gang Enhancement Statute: Did the Legislature Create a Sentencing Factor As It Intended or Did It Unwittingly Create an Element of the Offense?

The Utah Legislature, hoping to deter gang-related criminal activity, created a sentencing enhancement to increase the minimum jail time of group criminal actors. This sentencing enhancement was to operate as a sentencing factor-upon a finding by the sentencing judge that the criminal actor had acted "in concert with two or more persons" in committing a particular crime, the sentencing judge was to increase the penalty. The Lopes majority, however, concluded that the Utah Legislature had unwittingly created an element of the offense rather than a sentencing actor. As such, the "in concert" requirement had to be pleaded in the indictment and proven before a jury beyond a reasonable doubt.

Thus, by increasing the time, expense, and difficulty of proving the "in concert" requirement, the Lopes majority effectively stripped the gang enhancement penalty of its utility as a deterrent.