PRINTER'S NO. 643
No. 57 Session of 1995
INTRODUCED BY STURLA, STRITTMATTER, TRUE, ARMSTRONG, ROBINSON,
YOUNGBLOOD, ROONEY, NAILOR, MILLER, BUXTON, DeLUCA, BATTISTO,
FLICK, PISTELLA, MIHALICH, BROWN, E. Z. TAYLOR, GEIST,
STABACK, CAPPABIANCA, MARSICO, LAUGHLIN, PETRARCA, WOZNIAK
AND STETLER, FEBRUARY 7, 1995
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 7, 1995
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 disposition of delinquent child; and providing for sentences
4 for criminal gang activity.
5 The General Assembly declares that there is an urgent need to
6 address violent acts by youth. Strategies to combat youth
7 violence should include mechanisms aimed at controlling such
8 incidents and holding youth accountable for their actions.
9 Communities should take the responsibility to craft
10 comprehensive solutions which actively involve community
11 leaders, schools, public agencies and other key organizations,
12 churches, families and youth. Communities should be aware of
13 factors which increase the risk of youth violence and of factors
14 which serve to reduce the impact of these risk factors.
15 Communities should be encouraged to establish violence
16 prevention task forces to identify local issues, resources and
17 risk factors relating to youth violence and to formulate
1 appropriate responses which should be linked to a local
2 governance structure that can ensure implementation.
3 The General Assembly finds that the juvenile justice system
4 must be strengthened to enable an immediate and effective
5 response to incidents of juvenile crime, particularly those
6 involving the use or threat of violence and weapons.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Title 42 of the Pennsylvania Consolidated
10 Statutes is amended by adding a section to read:
11 § 1521.1. Disposition for criminal gang activity offenders.
12 If the offense which was the object of criminal gang activity
13 as defined in 18 Pa.C.S. § 913 (relating to criminal gang
14 activity) is a summary offense and the person who committed the
15 act is a juvenile offender, the district justice or judge of the
16 Philadelphia Municipal Court shall make every effort to:
17 (1) Order payment by the child of reasonable amounts of
18 money as fines, costs or restitution as deemed appropriate as
19 part of the plan of rehabilitation considering the nature of
20 the acts committed and the earning capacity of the child.
21 (2) Place the child in a program under section 1520(b)
22 (relating to adjudication alternative program).
23 Section 2. The definition of "dangerous juvenile offender"
24 in section 6302 of Title 42 is amended to read:
25 § 6302. Definitions.
26 The following words and phrases when used in this chapter
27 shall have, unless the context clearly indicates otherwise, the
28 meanings given to them in this section:
29 * * *
30 "Dangerous juvenile offender." A child who has been
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1 determined by the court to meet all of the following
2 requirements:
3 (1) Is 15 years of age or older.
4 (2) Has been adjudicated delinquent for one or more of
5 the following offenses:
6 (i) Attempted murder.
7 (ii) Voluntary manslaughter.
8 (iii) Rape.
9 (iv) Involuntary deviate sexual intercourse.
10 (v) Kidnapping.
11 (vi) Robbery as defined in 18 Pa.C.S. §
12 3701(a)(1)(i), (ii) or (iii) (relating to robbery).
13 (vii) Felonious aggravated assault as defined in 18
14 Pa.C.S. § 2702 (relating to aggravated assault).
15 (viii) Aggravated assault with a deadly weapon.
16 (ix) Arson as defined in 18 Pa.C.S. § 3301(a)
17 (relating to arson and related offenses).
18 (x) Criminal gang activity as defined in 18 Pa.C.S.
19 § 913 (relating to criminal gang activity), where the
20 offense which was the object of the criminal gang
21 activity was a felony.
22 (3) Has been previously adjudicated delinquent
23 subsequent to the child's 12th birthday for one or more of
24 the following offenses:
25 (i) Attempted murder.
26 (ii) Voluntary manslaughter.
27 (iii) Rape.
28 (iv) Involuntary deviate sexual intercourse.
29 (v) Kidnapping.
30 (vi) Robbery as defined in 18 Pa.C.S. §
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1 3701(a)(1)(i), (ii) or (iii) (relating to robbery).
2 (vii) Felonious aggravated assault as defined in 18
3 Pa.C.S. § 2702 (relating to aggravated assault).
4 (viii) Aggravated assault with a deadly weapon.
5 (ix) Arson as defined in 18 Pa.C.S. § 3301(a)
6 (relating to arson and related offenses).
7 (x) Criminal gang activity as defined in 18 Pa.C.S.
8 § 913, where the offense which was the object of the
9 criminal gang activity was a felony.
10 An adjudication for an offense arising from the same criminal
11 episode as the offense considered under paragraph (2) shall
12 not be considered an adjudication for the purpose of this
13 paragraph.
14 * * *
15 Section 3. Sections 6308(c), 6352 and 6801(g) of Title 42
16 are amended to read:
17 § 6308. Law enforcement records.
18 * * *
19 (c) Fingerprints and photographs.--
20 (1) Law enforcement officers shall have the authority to
21 take or cause to be taken the fingerprints or photographs, or
22 both, of any child who is alleged to have committed a
23 delinquent act that, but for the application of this chapter,
24 would constitute a felony [or], a violation of 18 Pa.C.S. Ch.
25 61 Subch. A (relating to uniform firearms act) or a violation
26 of 18 Pa.C.S. § 913 (relating to criminal gang activity).
27 (2) Fingerprint and photographic records may be
28 disseminated to and used cooperatively by law enforcement
29 officers of other jurisdictions, the Pennsylvania State
30 Police [and], the Federal Bureau of Investigation and the
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1 superintendent of the school district or head of the private
2 or parochial school in which the child is enrolled, if a
3 child has, on the basis of a felony [or], a violation of 18
4 Pa.C.S. Ch. 61 Subch. A or a violation of 18 Pa.C.S. § 913,
5 been adjudicated delinquent or found guilty in a criminal
6 proceeding.
7 (3) Fingerprints and photographic records of children
8 shall be immediately destroyed by all persons and agencies
9 having these records if the child is not adjudicated
10 delinquent or not found guilty in a criminal proceeding for
11 reason of the alleged acts.
12 § 6352. Disposition of delinquent child.
13 (a) General rule.--If the child is found to be a delinquent
14 child the court may make any of the following orders of
15 disposition best suited to his treatment, supervision,
16 rehabilitation, and welfare:
17 (1) Any order authorized by section 6351 (relating to
18 disposition of dependent child).
19 (2) Placing the child on probation under supervision of
20 the probation officer of the court or the court of another
21 state as provided in section 6363 (relating to ordering
22 foreign supervision), under conditions and limitations the
23 court prescribes.
24 (3) [Committing] If deemed necessary by a drug and
25 alcohol or psychological and psychiatric examination,
26 committing the child to an institution, youth development
27 center, camp, or other facility for delinquent children
28 operated under the direction or supervision of the court or
29 other public authority and approved by the Department of
30 Public Welfare[.] or the Department of Health.
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1 (4) If the child is 12 years of age or older, committing
2 the child to an institution operated by the Department of
3 Public Welfare[.] or the Department of Health.
4 (5) Ordering payment by the child of reasonable amounts
5 of money as fines, costs or restitution as deemed appropriate
6 as part of the plan of rehabilitation considering the nature
7 of the acts committed and the earning capacity of the child.
8 (6) An order of the terms of probation may include an
9 appropriate fine considering the nature of the act committed
10 or restitution not in excess of actual damages caused by the
11 child which shall be paid from the earnings of the child
12 received through participation in a constructive program of
13 service or education acceptable to the victim and the court
14 whereby, during the course of such service, the child shall
15 be paid not less than the minimum wage of this Commonwealth.
16 In ordering such service, the court shall take into
17 consideration the age, physical and mental capacity of the
18 child and the service shall be designed to impress upon the
19 child a sense of responsibility for the injuries caused to
20 the person or property of another. The order of the court
21 shall be limited in duration consistent with the limitations
22 in section 6353 (relating to limitation on and change in
23 place of commitment) and in the act of May 13, 1915 (P.L.286,
24 No.177), known as the "Child Labor Law." The court order
25 shall specify the nature of the work, the number of hours to
26 be spent performing the assigned tasks, and shall further
27 specify that as part of a plan of treatment and
28 rehabilitation that up to 75% of the earnings of the child be
29 used for restitution in order to provide positive
30 reinforcement for the work performed.
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1 In selecting from the alternatives set forth in this section,
2 the court shall follow the general principle that the
3 disposition imposed should provide the means through which the
4 provisions of this chapter are executed and enforced consistent
5 with section 6301(b) (relating to purposes) and when confinement
6 is necessary, the court shall impose the minimum amount of
7 confinement that is consistent with the protection of the public
8 and the rehabilitation needs of the child.
9 (b) Limitation on place of commitment.--A child shall not be
10 committed or transferred to a penal institution or other
11 facility used primarily for the execution of sentences of adults
12 convicted of a crime.
13 (c) Community service.--The court and probation officers
14 shall make every effort to include constructive community
15 service alternatives designed to impress upon the child a sense
16 of responsibility for injuries caused to a person or property as
17 a component of dispositions under subsection (a) if the child is
18 found to be a delinquent child or is under a consent decree
19 under section 6340 (relating to consent decree).
20 (d) Dispositions involving criminal gang activity.--If the
21 delinquent child is found to have committed criminal gang
22 activity as defined under 18 Pa.C.S. § 913 (relating to criminal
23 gang activity), the court shall make every effort to order, at a
24 minimum, disposition under subsection (a)(3), (4), (5) and (6)
25 and shall order an evaluation of drug/alcohol dependency as well
26 as a complete psychological and psychiatric evaluation with all
27 educational components. If it is determined that the juvenile is
28 alcohol-dependent or drug-dependent or in need of other
29 treatment based on other required evaluations, the court shall
30 make every effort to order the juvenile to be committed for
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1 treatment at a facility or institution licensed by the Office of
2 Drug and Alcohol Programs within the Department of Health or
3 other programs approved by the Department of Public Welfare or
4 the Department of Education.
5 § 6801. Loss of property rights to Commonwealth.
6 * * *
7 (g) Distribution of property among law enforcement
8 authorities.--
9 (1) If both municipal and State law enforcement
10 authorities were substantially involved in effecting the
11 seizure, the court having jurisdiction over the forfeiture
12 proceedings shall equitably distribute the property between
13 the district attorney and the Attorney General[.],
14 notwithstanding the provisions of paragraph (2).
15 (2) If the offense under The Controlled Substance, Drug,
16 Device and Cosmetic Act was the object of criminal gang
17 activity as defined in 18 Pa.C.S. § 913 (relating to criminal
18 gang activity) and if State law enforcement authorities were
19 substantially involved in effecting the seizure, the court
20 having jurisdiction over the forfeiture proceedings shall
21 equitably distribute the property as follows:
22 (i) 50% to the district attorney.
23 (ii) 25% to the Attorney General.
24 (iii) 25% to the Criminal Gang Deterrence Fund
25 established under 18 Pa.C.S. § 913.
26 Section 4. Title 42 is amended by adding sections to read:
27 § 9719.1. Sentences for criminal gang activity.
28 (a) General rule.--Any person who is convicted in any court
29 of this Commonwealth of criminal gang activity as defined in 18
30 Pa.C.S. § 913 (relating to criminal gang activity) may be
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1 sentenced to a minimum sentence of two years in addition to any
2 sentence imposed for a violation of 18 Pa.C.S. § 913 if the
3 person commits criminal gang activity:
4 (1) Within 1,000 feet of a public or private elementary,
5 vocational, junior high or high school during hours in which
6 the facility is open for classes or school-related programs
7 or when minors are using the facility.
8 (2) Within 1,000 feet of a public housing project,
9 public parks and community recreation centers.
10 (3) At a school bus stop.
11 (4) By engaging a minor in any criminal conduct.
12 (b) Consecutive sentences.--If a person is convicted of
13 criminal gang activity, all sentences imposed for the same
14 activity shall be served consecutive to each other and to any
15 other sentence imposed for any other offense.
16 (c) Proof at sentencing.--The provisions of this section
17 shall not be an element of the crime. Notice of the
18 applicability of this section to the defendant shall not be
19 required prior to conviction, but reasonable notice of the
20 Commonwealth's intention to proceed under this section shall be
21 provided after conviction and before sentencing. The
22 applicability of this section shall be determined at sentencing.
23 The court shall consider evidence presented at trial, shall
24 afford the Commonwealth and the defendant an opportunity to
25 present necessary additional evidence and shall determine, by a
26 preponderance of the evidence, if this section is applicable.
27 (d) Authority of court in sentencing.--There shall be no
28 authority for a court to impose on a defendant to which this
29 section is applicable a lesser sentence than provided for in
30 subsection (a), to place the defendant on probation or to
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1 suspend a sentence. Nothing in this section shall prevent the
2 sentencing court from imposing a sentence greater than that
3 provided in this section. Sentencing guidelines promulgated by
4 the Pennsylvania Commission on Sentencing shall not supersede
5 the mandatory sentences provided in this section. Disposition
6 under section 17 or 18 of the act of April 14, 1972 (P.L.233,
7 No.64), known as The Controlled Substance, Drug, Device and
8 Cosmetic Act, shall not be available to a defendant to which
9 this section applies.
10 (e) Appeal by Commonwealth.--If a sentencing court refuses
11 to apply this section where applicable, the Commonwealth shall
12 have the right to appellate review of the action of the
13 sentencing court. The appellate court shall vacate the sentence
14 and remand the case to the sentencing court for imposition of a
15 sentence in accordance with this section if it finds that the
16 sentence was imposed in violation of this section.
17 (f) Definition.--As used in this section, the term "minor"
18 means an individual under 18 years of age.
19 § 9719.2. Alcohol and drug treatment.
20 Any person who is convicted in any court of this Commonwealth
21 of criminal gang activity as defined in 18 Pa.C.S. § 913
22 (relating to criminal gang activity) which is a misdemeanor or
23 felony shall be evaluated and examined for dependency on alcohol
24 or controlled substances and undergo a complete psychological
25 and psychiatric evaluation with all educational components. If
26 after evaluation and examination it is determined that the
27 person is dependent on alcohol or controlled substances or needs
28 other treatment based on other required evaluations, the court
29 shall make every effort to order the person committed for
30 treatment at a facility or institution licensed by the Office of
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1 Drug and Alcohol Programs within the Department of Health or
2 programs approved by the Department of Public Welfare or the
3 Department of Education.
4 Section 5. This act shall take effect in 60 days.
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