PRINTER'S NO. 3778
No. 2648 Session of 2000
INTRODUCED BY STURLA, SCHULER, BATTISTO, TRUE, M. COHEN, CAPPABIANCA, DeLUCA, FLICK, FRANKEL, GEIST, HORSEY, LaGROTTA, MELIO, PETRONE, SOLOBAY, E. Z. TAYLOR, ROONEY, WASHINGTON, NAILOR, READSHAW, STABACK, YOUNGBLOOD AND TRELLO, JUNE 14, 2000
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 14, 2000
AN ACT 1 Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and 2 Judicial Procedure) of the Pennsylvania Consolidated 3 Statutes, defining the offense of "criminal gang activity"; 4 adding the definition of "dangerous juvenile offender"; 5 further providing for disposition of delinquent child and for 6 loss of property rights to the Commonwealth; providing for 7 sentences for criminal gang activity; providing penalties; 8 and making an appropriation. 9 The General Assembly finds and declares as follows: 10 (1) It is the right of every person, regardless of race, 11 color, creed, religion, national origin, sex, age, sexual 12 orientation or handicap to be secure and protected from fear, 13 intimidation and physical harm caused by the activities of 14 violent groups and individuals. It is not the intent of the 15 General Assembly to interfere with the exercise of 16 constitutionally protected rights of freedom of expression 17 and association. The General Assembly recognizes the 18 constitutional right of every citizen to harbor and express 19 beliefs on any lawful subject whatsoever, to lawfully
1 associate with others who share beliefs, to petition lawfully 2 constituted authority for a redress of perceived grievances 3 and to participate in the electoral process. 4 (2) This Commonwealth is facing a mounting crisis caused 5 by criminal gangs whose members threaten and terrorize 6 peaceful citizens and commit crimes. These activities both 7 individually and collectively present a clear and present 8 danger to the public order and safety and are not 9 constitutionally protected. 10 (3) There is an urgent need to address violent acts by 11 youth. Strategies to combat youth violence should include 12 mechanisms aimed at controlling such incidents and holding 13 youth accountable for their actions. Communities should take 14 the responsibility to craft comprehensive solutions which 15 actively involve community leaders, schools, public agencies 16 and other key organizations, churches, families and youth. 17 Communities should be aware of factors which increase the 18 risk of youth violence and of factors which serve to reduce 19 the impact of these risk factors. Communities should be 20 encouraged to establish violence prevention task forces to 21 identify local issues, resources and risk factors relating to 22 youth violence and to formulate appropriate responses which 23 should be linked to a local governance structure that can 24 ensure implementation. 25 (4) The juvenile justice system must be strengthened to 26 enable an immediate and effective response to incidents of 27 juvenile crime, particularly those involving the use or 28 threat of violence and weapons. 29 The General Assembly of the Commonwealth of Pennsylvania 30 hereby enacts as follows: 20000H2648B3778 - 2 -
1 Section 1. Title 18 of the Pennsylvania Consolidated 2 Statutes is amended by adding a section to read: 3 § 914. Criminal gang activity. 4 (a) Offense.--A person commits the offense of criminal gang 5 activity if he knowingly commits a crime for the benefit of, at 6 the direction of or in affiliation with a criminal gang with the 7 intent to promote, further or assist the activities of the 8 criminal gang. 9 (b) Grading.--Criminal gang activity is a crime of the same 10 grade and degree as the most serious offense which is the object 11 of the criminal gang activity. 12 (c) Assessment.--Each person found in violation of this 13 section shall be assessed a minimum of $500 and a maximum of 14 $5,000 which shall be transmitted to the Criminal Gang 15 Deterrence Fund created under subsection (f). 16 (d) Responsibilities of the Pennsylvania Commission on Crime 17 and Delinquency.--The Pennsylvania Commission on Crime and 18 Delinquency shall award grants to: 19 (1) Community organizations which implement programs to 20 deter criminal gang activity. The commission shall give 21 preference to programs which engage community organizations 22 in identifying and prioritizing delinquency risk factors 23 operating in their communities and which include a 24 comprehensive plan to reduce the impact of these risk factors 25 on children. Criminal gang deterrence programs may include: 26 (i) Aftercare and monitoring to ensure that former 27 criminal gang members are able to integrate into society. 28 (ii) Rehabilitative and education support services. 29 (2) District attorneys to be used for the formation of 30 special prosecution units, grand jury investigations and 20000H2648B3778 - 3 -
1 other strategies to deter criminal gang activity. 2 (e) Civil cause of action.--A person, organization or 3 municipality which has been coerced, intimidated, threatened or 4 otherwise harmed in violation of this section shall have a civil 5 cause of action for treble damages, an injunction, nuisance 6 abatement, asset forfeiture or any other appropriate relief in 7 law or equity. This civil action may be brought against any 8 criminal gang member reasonably believed to have been involved 9 in the violation, including, but not limited to, criminal gang 10 leaders and criminal gang members who have personal knowledge of 11 the crime. Upon prevailing in this civil action based on the 12 clear and convincing evidence presented, the plaintiff may 13 recover reasonable attorney fees and costs. 14 (f) Fund.--There is hereby established within the State 15 Treasury a separate nonlapsing revolving account to be known as 16 the Criminal Gang Deterrence Fund. The fund shall be 17 administered by the Pennsylvania Commission on Crime and 18 Delinquency for the purpose of developing, implementing and 19 administrating a grant program as described under subsection 20 (d). 21 (g) Definitions.--As used in this section, the following 22 words and phrases shall have the meanings given to them in this 23 subsection: 24 "Criminal gang." 25 (1) A combination, confederation, alliance, network, 26 conspiracy, in law or fact, of three or more persons that are 27 primarily organized to engage in a pattern of violent or 28 drug-related criminal activity through its membership or 29 through the agency of any member at the direction, order, 30 solicitation or request of a leader, officer, director, 20000H2648B3778 - 4 -
1 organizer or other governing or policymaking person in the 2 conspiracy, or at the direction, order, solicitation or 3 request of such person's agent, deputy or representative. 4 (2) Any evidence reasonably tending to show or 5 demonstrate, in law or in fact, the existence of or 6 membership in any conspiracy, confederation or other 7 association described herein, or probative of the existence 8 of or membership in any such association, shall be admissible 9 in any action or proceeding brought under this section. 10 "Criminal gang member." A person who demonstrates 11 affiliation with a criminal gang by: 12 (1) an admission of criminal gang membership; or 13 (2) by any two or more of the following indicia: 14 (i) identification as a criminal gang member by a 15 parent, guardian, spouse or sibling. 16 (ii) identification by an informant, verified by 17 independent information. 18 (iii) more than one arrest while in the company of 19 identified criminal gang members for any criminal 20 offense. 21 (iv) identification as a criminal gang member by 22 physical evidence such as photographs or other 23 documentation. 24 "Pattern of criminal activity." Violent or drug-related 25 felonies, misdemeanors or a combination thereof committed on a 26 continuing basis. 27 Section 2. Title 42 is amended by adding a section to read: 28 § 1521.1. Disposition for criminal gang activity offenders. 29 If the offense which was the object of criminal gang activity 30 as defined in 18 Pa.C.S. § 914 (relating to criminal gang 20000H2648B3778 - 5 -
1 activity) is a summary offense and the person who committed the 2 act is a juvenile offender, the district justice or judge of the 3 Philadelphia Municipal Court shall make every effort to: 4 (1) Order payment by the child of reasonable amounts of 5 money as fines, costs or restitution as deemed appropriate as 6 part of the plan of rehabilitation considering the nature of 7 the acts committed and the earning capacity of the child. 8 (2) Place the child in a program under section 1520(b) 9 (relating to adjudication alternative program). 10 Section 3. Section 6302 of Title 42 is amended by adding a 11 definition to read: 12 § 6302. Definitions. 13 The following words and phrases when used in this chapter 14 shall have, unless the context clearly indicates otherwise, the 15 meanings given to them in this section: 16 * * * 17 "Dangerous juvenile offender." A child who has been 18 determined by the court to meet all of the following 19 requirements: 20 (1) Is 15 years of age or older. 21 (2) Has been adjudicated delinquent for one or more of 22 the following offenses: 23 (i) Attempted murder. 24 (ii) Voluntary manslaughter. 25 (iii) Rape. 26 (iv) Involuntary deviate sexual intercourse. 27 (v) Kidnapping. 28 (vi) Robbery as defined in 18 Pa.C.S. § 29 3701(a)(1)(i), (ii) or (iii) (relating to robbery). 30 (vii) Felonious aggravated assault as defined in 18 20000H2648B3778 - 6 -
1 Pa.C.S. § 2702 (relating to aggravated assault). 2 (viii) Aggravated assault with a deadly weapon. 3 (ix) Arson as defined in 18 Pa.C.S. § 3301(a) 4 (relating to arson and related offenses). 5 (x) Criminal gang activity as defined in 18 Pa.C.S. 6 § 914 (relating to criminal gang activity), where the 7 offense which was the object of the criminal gang 8 activity was a felony. 9 (3) Has been previously adjudicated delinquent 10 subsequent to the child's 12th birthday for one or more of 11 the following offenses: 12 (i) Attempted murder. 13 (ii) Voluntary manslaughter. 14 (iii) Rape. 15 (iv) Involuntary deviate sexual intercourse. 16 (v) Kidnapping. 17 (vi) Robbery as defined in 18 Pa.C.S. § 18 3701(a)(1)(i), (ii) or (iii). 19 (vii) Felonious aggravated assault as defined in 18 20 Pa.C.S. § 2702. 21 (viii) Aggravated assault with a deadly weapon. 22 (ix) Arson as defined in 18 Pa.C.S. § 3301(a). 23 (x) Criminal gang activity as defined in 18 Pa.C.S. 24 § 914, where the offense which was the object of the 25 criminal gang activity was a felony. 26 An adjudication for an offense arising from the same criminal 27 episode as the offense considered under paragraph (2) shall 28 not be considered an adjudication for the purpose of this 29 paragraph. 30 * * * 20000H2648B3778 - 7 -
1 Section 4. Section 6352 of Title 42 is amended by adding 2 subsections to read: 3 § 6352. Disposition of delinquent child. 4 * * * 5 (c) Community service.--The court and probation officers 6 shall make every effort to include constructive community 7 service alternatives designed to impress upon the child a sense 8 of responsibility for injuries caused to a person or property as 9 a component of dispositions under subsection (a) if the child is 10 found to be a delinquent child or is under a consent decree 11 under section 6340 (relating to consent decree). 12 (d) Dispositions involving criminal gang activity.--If the 13 delinquent child is found to have committed criminal gang 14 activity as defined under 18 Pa.C.S. § 914 (relating to criminal 15 gang activity), the court shall make every effort to order, at a 16 minimum, disposition under subsection (a)(3), (4), (5) and (6) 17 and shall order an evaluation of drug/alcohol dependency as well 18 as a complete psychological and psychiatric evaluation with all 19 educational components. If it is determined that the juvenile is 20 alcohol-dependent or drug-dependent or in need of other 21 treatment based on other required evaluations, the court shall 22 make every effort to order the juvenile to be committed for 23 treatment at a facility or institution licensed by the Office of 24 Drug and Alcohol Programs within the Department of Health or 25 other programs approved by the Department of Public Welfare or 26 the Department of Education. 27 Section 5. Section 6801(g) of Title 42 is amended to read: 28 § 6801. Loss of property rights to Commonwealth. 29 * * * 30 (g) Distribution of property among law enforcement 20000H2648B3778 - 8 -
1 authorities.-- 2 (1) If both municipal and State law enforcement 3 authorities were substantially involved in effecting the 4 seizure, the court having jurisdiction over the forfeiture 5 proceedings shall equitably distribute the property between 6 the district attorney and the Attorney General[.], 7 notwithstanding the provisions of paragraph (2). 8 (2) If the offense under The Controlled Substance, Drug, 9 Device and Cosmetic Act was the object of criminal gang 10 activity as defined in 18 Pa.C.S. § 914 (relating to criminal 11 gang activity) and if State law enforcement authorities were 12 substantially involved in effecting the seizure, the court 13 having jurisdiction over the forfeiture proceedings shall 14 equitably distribute the property as follows: 15 (i) 50% to the district attorney. 16 (ii) 25% to the Attorney General. 17 (iii) 25% to the Criminal Gang Deterrence Fund 18 established under 18 Pa.C.S. § 914. 19 * * * 20 Section 6. Title 42 is amended by adding sections to read: 21 § 9719.1. Sentences for criminal gang activity. 22 (a) General rule.--Any person who is convicted in any court 23 of this Commonwealth of criminal gang activity as defined in 18 24 Pa.C.S. § 914 (relating to criminal gang activity) may be 25 sentenced to a minimum sentence of two years in addition to any 26 sentence imposed for a violation of 18 Pa.C.S. § 914 if the 27 person commits criminal gang activity: 28 (1) Within 1,000 feet of a public or private elementary, 29 vocational, junior high or high school during hours in which 30 the facility is open for classes or school-related programs 20000H2648B3778 - 9 -
1 or when minors are using the facility. 2 (2) Within 1,000 feet of a public housing project, 3 public park or community recreation center. 4 (3) At a school bus stop. 5 (4) By engaging a minor in any criminal conduct. 6 (b) Consecutive sentences.--If a person is convicted of 7 criminal gang activity, all sentences imposed for the same 8 activity shall be served consecutive to each other and to any 9 other sentence imposed for any other offense. 10 (c) Proof at sentencing.--The provisions of this section 11 shall not be an element of the crime. Notice of the 12 applicability of this section to the defendant shall not be 13 required prior to conviction, but reasonable notice of the 14 Commonwealth's intention to proceed under this section shall be 15 provided after conviction and before sentencing. The 16 applicability of this section shall be determined at sentencing. 17 The court shall consider evidence presented at trial, shall 18 afford the Commonwealth and the defendant an opportunity to 19 present necessary additional evidence and shall determine, by a 20 preponderance of the evidence, if this section is applicable. 21 (d) Authority of court in sentencing.--There shall be no 22 authority for a court to impose on a defendant to which this 23 section is applicable a lesser sentence than provided for in 24 subsection (a), to place the defendant on probation or to 25 suspend a sentence. Nothing in this section shall prevent the 26 sentencing court from imposing a sentence greater than that 27 provided in this section. Sentencing guidelines promulgated by 28 the Pennsylvania Commission on Sentencing shall not supersede 29 the mandatory sentences provided in this section. Disposition 30 under section 17 or 18 of the act of April 14, 1972 (P.L.233, 20000H2648B3778 - 10 -
1 No.64), known as The Controlled Substance, Drug, Device and 2 Cosmetic Act, shall not be available to a defendant to which 3 this section applies. 4 (e) Appeal by Commonwealth.--If a sentencing court refuses 5 to apply this section where applicable, the Commonwealth shall 6 have the right to appellate review of the action of the 7 sentencing court. The appellate court shall vacate the sentence 8 and remand the case to the sentencing court for imposition of a 9 sentence in accordance with this section if it finds that the 10 sentence was imposed in violation of this section. 11 (f) Definition.--As used in this section, the term "minor" 12 means an individual under 18 years of age. 13 § 9719.2. Alcohol and drug treatment. 14 Any person who is convicted in any court of this Commonwealth 15 of criminal gang activity as defined in 18 Pa.C.S. § 914 16 (relating to criminal gang activity) which is a misdemeanor or 17 felony shall be evaluated and examined for dependency on alcohol 18 or controlled substances and undergo a complete psychological 19 and psychiatric evaluation with all educational components. If 20 after evaluation and examination it is determined that the 21 person is dependent on alcohol or controlled substances or needs 22 other treatment based on other required evaluations, the court 23 shall make every effort to order the person committed for 24 treatment at a facility or institution licensed by the Office of 25 Drug and Alcohol Programs within the Department of Health or 26 programs approved by the Department of Public Welfare or the 27 Department of Education. 28 Section 7. The amount of $1,000,000, or as much thereof as 29 may be necessary, is hereby appropriated to the Criminal Gang 30 Deterrence Fund for the fiscal year July 1, 2000, to June 30, 20000H2648B3778 - 11 -
1 2001, to carry out the provisions of this act. 2 Section 8. This act shall take effect in 60 days. F1L18JAM/20000H2648B3778 - 12 -