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:
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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
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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,
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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
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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
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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 * * *
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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
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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
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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,
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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,
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1 2001, to carry out the provisions of this act.
2 Section 8. This act shall take effect in 60 days.
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