THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY LONGIETTI, MANN, BARRAR, BOYD, BRENNAN, FAIRCHILD, GROVE, HENNESSEY, KOTIK, McILVAINE SMITH, PASHINSKI, RAPP, READSHAW, SABATINA, SCAVELLO, SIPTROTH, K. SMITH, STURLA, GEIST, SWANGER, CALTAGIRONE, STABACK, STERN, BAKER, BROOKS, CARROLL, CASORIO, CAUSER, EACHUS, FABRIZIO, FLECK, GIBBONS, GRUCELA, HARHAI, HARKINS, HESS, HORNAMAN, W. KELLER, KORTZ, MAHONEY, MELIO, MILLER, MOUL, PAYNE, SANTONI AND VULAKOVICH, FEBRUARY 9, 2009

REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 9, 2009  

AN ACT

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, in inchoate crimes, providing for the offense of

participation in a criminal street gang; establishing the

Criminal Street Gang Prevention Fund; and, in forfeitures,

providing for the forfeiture of property associated with

criminal street gang activity, for process and seizure and

for the powers and duties of the Attorney General.

The General Assembly finds and declares as follows:

(1)  There exists a great need to address the growing

crisis of criminal street gang presence in our communities.

(2)  It is the right of every citizen to be secure and

protected from fear, intimidation and physical harm caused by

the activities of violent criminal street gangs.

(3)  These activities, both individually and

collectively, present a clear and present danger to public

order and safety.

(4)  An effective means of punishing and deterring the

criminal activities of criminal street gangs is establishing

an offense of participation in a criminal street gang and

through forfeiture of the assets, profits, proceeds and

instrumentalities acquired, accumulated or used by street

gangs.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 18 of the Pennsylvania Consolidated Statutes

is amended by adding a section to read:

§ 911.1.  Criminal street gang member.

(a)  General rule.--Any person who is a member of a criminal

street gang and engages in criminal street gang activity commits

an offense.

(b)  Grading.--

(1)  A person is guilty of a misdemeanor of the first

degree when the person is found to have committed one or more

criminal street gang activities while being a member of a

criminal street gang.

(2)  A person is guilty of a felony of the third degree

if the person is found to be a member of a criminal street

gang and is convicted of one or more criminal street gang

activities within 1,000 feet of a public or private school or

engages a person under 18 years of age in any criminal

activity.

(c)  Criminal Street Gang Prevention Fund.--

(1)  The Criminal Street Gang Prevention Fund is

established as a fund in the State Treasury. The fund shall

be administered by the commission and shall be comprised of

costs imposed and collected in accordance with the provisions

of this section. 

(2)  All moneys in the fund and the interest accruing

thereon are hereby appropriated, upon approval of the

Governor, to the commission to carry out the provisions of

this section.

(d)  Fine.--In addition to any other punishment imposed, the

court shall order the defendant to pay a fine of not less than

$500 nor more than $5,000, which shall be forwarded to the fund.

(e)  Collection.--Costs imposed under this section shall be

collected in accordance with local court rules by the clerk of

courts in the county where the violation has occurred.

(f)  Application.--

(1)  All costs provided for in this section shall be in

addition to and not in lieu of any fine authorized by law.

(2)  Nothing in this section shall be construed to

affect, suspend or diminish any other criminal sanction,

penalty or property forfeiture permitted by law.

(g)  Grants.--Notwithstanding any other provision of law, the

commission shall, upon written application and subsequent

approval, use moneys received under this section to annually

award grant moneys deposited into the fund each fiscal year to

local governments and nonprofit organizations to provide

research-based approaches to assessment, prevention,

intervention, training, education, public awareness campaigns

and media literacy to reduce criminal gang activity in

communities with evidence of gang violence.

(h)  Administration.--

(1)  The commission shall develop guidelines and

procedures necessary to implement the grant program. The

commission shall equitably distribute grant moneys to

approved applicants. Each fiscal year, the commission shall

make available grant moneys equaling, except for

administrative funds as provided under this subsection, the

balance of moneys deposited into the fund as of June 30 of

the previous fiscal year.

(2)  No more than 5% of total moneys deposited in the

fund during a fiscal year may be used by the commission to

administer the provisions of this section.

(i)  Other initiatives.--Funds disbursed under this section

shall not supplant Federal, State or local funds that would have

otherwise been made available for substance abuse prevention,

education, support, treatment and outreach initiatives.

(j)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Commission."  The Pennsylvania Commission on Crime and

Delinquency."

"Criminal street gang."  A formal or informal confederation,

alliance, network, conspiracy, understanding or other similar

conjoining of persons who operate individually or collectively

as a group or subgroup, with or without an established

hierarchy, that, through its membership obtained by pledge,

oath, swearing, ritual, distinct membership markings, symbolism,

common identifiers or other criteria that law enforcement

personnel use to identify such groups or subgroups, engages in

criminal activity.

"Criminal street gang activity."  The commission of,

attempted commission of, conspiracy to commit or solicitation to

commit an act of violence or an act to achieve illegal pecuniary

gain committed as a matter of course or pattern by a juvenile or

an adult who has been identified as a member of a criminal

street gang, which act is prohibited as follows:

(1)  Under this title:

Section 903 (relating to criminal conspiracy)

Section 907 (relating to possessing instruments of

crime)

Section 908 (relating to prohibited offensive

weapons)

Section 911 (relating to corrupt organizations)

Section 2501 (relating to criminal homicide)

Section 2502 (relating to murder)

Section 2506 (relating to drug delivery resulting in

death)

Section 2701 (relating to simple assault)

Section 2702 (relating to aggravated assault)

Section 2705 (relating to recklessly endangering

another person)

Section 2706 (relating to terroristic threats)

Section 2707 (relating to propulsion of missiles into

an occupied vehicle or onto a roadway)

Section 2707.1 (relating to discharge of a firearm

into an occupied structure)

Section 2709 (relating to harassment)

Section 2901 (relating to kidnapping)

Section 2903 (relating to false imprisonment)

Section 2906 (relating to criminal coercion)

Section 3121 (relating to rape)

Section 3123 (relating to involuntary deviate sexual

intercourse)

Section 3124.1 (relating to sexual assault)

Section 3301 (relating to arson and related offenses)

Section 3304 (relating to criminal mischief)

Section 3307 (relating to institutional vandalism)

Section 3502 (relating to burglary)

Section 3503 (relating to criminal trespass)

Section 3701 (relating to robbery)

Section 3702 (relating to robbery of motor vehicle)

Section 3921 (relating to theft by unlawful taking or

disposition)

Section 3923 (relating to theft by extortion)

Section 3925 (relating to receiving stolen property)

Section 3928 (relating to unauthorized use of

automobiles and other vehicles)

Section 3934 (relating to theft from a motor vehicle)

Section 4952 (relating to intimidation of witnesses

or victims)

Section 4953 (relating to retaliation against

witness, victim or party)

Section 6110.1 (relating to possession of firearm by

minor)

Section 6110.2 (relating to possession of firearm

with altered manufacturer's number)

Section 6111 (relating to sale or transfer of

firearms)

Section 6301 (relating to corruption of minors)

Section 6302 (relating to sale or lease of weapons

and explosives)

Section 6319 (relating to solicitation of minors to

traffic drugs)

Section 7611 (relating to unlawful use of computer

and other computer crimes).

(2)  Under section 13 of the act of April 14, 1972 (P.L.

233, No.64), known as The Controlled Substance, Drug, Device

and Cosmetic Act.

"Criminal street gang member."  A person who:

(1)  belongs to a criminal street gang;

(2)  by self-proclamation asserts that the person is a

member of a criminal street gang; or

(3)  knowingly acts in furtherance of criminal street

gang activities or acts as an accessory before or after the

fact.

"Fund."  The Criminal Street Gang Prevention Fund.

Section 2.  Title 42 is amended by adding a section to read:

§ 6801.2.  Criminal street gang forfeiture.

(a)  General rule.--The following shall be subject to

forfeiture to the Commonwealth and no property right shall exist

in them:

(1)  Money, negotiable instruments, securities or other

things of value furnished or intended to be furnished by any

person to facilitate criminal street gang activity.

(2)  Real property used or intended to be used to

facilitate criminal street gang activity, including

structures or other improvements thereon, and any right,

title and interest in the whole or any lot or tract of land

any appurtenances or improvements, which is used or intended

to be used in any manner or part to commit or to facilitate

the commission of criminal street gang activity and things

growing on, affixed to and found in the land.

(b)  Presumption.--

(1)  No property shall be forfeited under this section,

to the extent of the interest of an owner, by reason of any

act or omission established by the owner to have been

committed or omitted without the knowledge or consent of that

owner. Such money and negotiable instruments found in

proximity or relation to criminal street gang activity shall

be rebuttably presumed to be proceeds derived from criminal

street gang activity.

(2)  No valid lien or encumbrance on real property shall

be subject to forfeiture or impairment under this section. A

lien which is fraudulent or intended to avoid forfeiture

under this section shall be invalid.

(3)  Any firearm, including, but not limited to, a rifle,

shotgun, pistol, revolver, machine gun, zip gun or any type

of prohibited offensive weapon as that term is defined under

18 Pa.C.S. (relating to crimes and offenses), which is used

or intended for use to facilitate criminal street gang

activity and such operable firearm as is found to be in

relation to criminal street gang activity shall be rebuttably

presumed to be used or intended for use to facilitate a

criminal street gang activity.

(c)  Destruction of weapons.--A weapon forfeited under this

section shall be immediately destroyed by the receiving law

enforcement agency.

(d)  Property subject to forfeiture.--In accordance with

subsection (k), property subject to forfeiture under this

section may be seized by the law enforcement authority upon

process issued by any court of common pleas having jurisdiction

over the property. Seizure without process may be made if:

(1)  the seizure is incident to an arrest or a search

under a search warrant or inspection under an administrative

inspection warrant;

(2)  the property subject to seizure has been the subject

of a prior judgment in favor of the Commonwealth in a

criminal injunction or forfeiture proceeding under this

section;

(3)  there is a probable cause to believe that the

property is dangerous to public health or safety; or

(4)  there is probable cause to believe that the property

has been used or is intended to be used in criminal street

gang activity.

(e)  Seizure without process.--In the event seizure without

process occurs, as provided under this section, proceedings for

the issuance thereof shall be immediately initiated.

(f)  Custody of property.--

(1)  Property taken or detained under this section shall

not be subject to replevin but is deemed to be in the custody

of the law enforcement authority subject only to the orders

and decrees of the court of common pleas having jurisdiction

over the forfeiture proceedings and of the district attorney

or the Attorney General.

(2)  When property is seized under this section, the law

enforcement authority shall place the property under seal and

either:

(i)  remove the property to a place designated by it;

or

(ii)  require that the district attorney or Attorney

General take custody of the property and remove it to an

appropriate location for disposition in accordance with

law.

(g)  Use of property held in custody.--

(1)  Whenever property is forfeited under this section,

the property shall be transferred to the custody of the

district attorney if the law enforcement authority seizing

the property has local or county jurisdiction or to the

Attorney General if the law enforcement authority seizing the

property has Statewide jurisdiction.

(2)  The district attorney or the Attorney General, where

appropriate, may:

(i)  retain the property for official use; or

(ii)  sell any forfeited property which is not

required to be destroyed by law and which is not harmful

to the public. The proceeds from any such sale shall be

used to pay all proper expenses of the proceedings for

forfeiture and sale, including expenses of seizure,

maintenance of custody, advertising and court costs. The

balance of the proceeds shall be dealt with in accordance

with subsections (h) and (i).

(h)  Use of cash or proceeds of property.--

(1)  Cash or proceeds of forfeited property transferred

to the custody of the district attorney pursuant to

subsection (f) shall be placed in the operating fund of the

county in which the district attorney is elected.

(2)  The appropriate county authority shall immediately

release from the operating fund, without restriction, a like

amount for the use of the district attorney in the

enforcement of the provisions of this section.

(3)  The entity having budgetary control shall not

anticipate future forfeitures or proceeds from the operating

fund in adoption and approval of the budget for the district

attorney.

(i)  Distribution of property among law enforcement

authorities.--If both municipal and State law enforcement

authorities were substantially involved in effecting a seizure

under this section, the court having jurisdiction over the

forfeiture proceedings shall equitably distribute the property

between the district attorney and the Attorney General.

(j)  Authorization to utilize property.--The district

attorney and the Attorney General shall utilize forfeited

property or proceeds thereof for the purpose of enforcing the

provisions of this section. In appropriate cases, the district

attorney and the Attorney General shall designate proceeds from

forfeited property to be utilized by community-based drug and

crime-fighting programs and for relocation and protection of

witnesses in criminal cases.

(k)  Annual audit of forfeited property.--

(1)  Each county in this Commonwealth shall provide,

through the controller, board of auditors or other

appropriate auditor and the district attorney, an annual

audit of all forfeited property and proceeds obtained under

this section. The audit shall not be made public but shall be

submitted to the Office of Attorney General.

(2)  Each county shall report all forfeited property and

proceeds obtained under this section and the disposition

thereof to the Attorney General by September 30 of each year.

(l)  Annual report and confidential information regarding

property.--

(1)  The Attorney General shall annually submit a report

to the Appropriations and Judiciary Committees of the Senate

and to the Appropriations and Judiciary Committees of the

House of Representatives, specifying the forfeited property

or proceeds thereof obtained under this section. The report

shall give an accounting of all proceeds derived from the

sale of forfeited property and the use made of unsold

forfeited property.

(2)  The Attorney General shall adopt procedures and

guidelines governing the release of information by the

Attorney General to protect the confidentiality of forfeited

property or proceeds used in ongoing criminal street gang

activity.

(m)  Proceeds and appropriations.--The proceeds or future

proceeds from forfeited property under this section shall be in

addition to any appropriation made to the Office of Attorney

General.

(n)  Applicability of forfeiture.--Property owned by a

defendant who is convicted under 18 Pa.C.S. § 911.1 (relating to

criminal street gang member) shall be subject to forfeiture upon

a conviction which occurs on or after the effective date of this

section.

(o)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Criminal street gang."  Such groups or subgroups as defined

in 18 Pa.C.S. § 911.1 (relating to criminal street gang member).

"Criminal street gang activity."  As defined in 18 Pa.C.S. §

911.1 (relating to criminal street gang member).

"Criminal street gang member."  As defined in 18 Pa.C.S. §

911.1 (relating to criminal street gang member).

Section 3.  This act shall take effect in 60 days.