What is a Gang and Why Does the Law Care?

The economic theory of optimal punishments states that the expected penalty for a crime ought to be equal (or at least proportional) to the social harm caused by the act. The Criminal Codes in both Canada and the United States allow for criminals to be penalized to a greater degree if they are a member of a gang. According to the economic theory, this would be optimal if either: 1) the social harm from a criminal act is greater for a gang member than for an independent criminal, or 2) the probability of conviction is lower for a gang member. We examine the extent to which both of these possibilities are true and use the findings to develop a (perhaps improved) definition of a gang. Classification-JEL K14, K42