PRINTER'S NO. 4300
No. 2372 Session of 2008
INTRODUCED BY LONGIETTI, BAKER, BEYER, BOYD, CAPPELLI, CASORIO, COHEN, DENLINGER, EACHUS, FLECK, GEIST, GIBBONS, GRUCELA, HARHAI, HENNESSEY, KORTZ, KOTIK, KULA, MANN, MELIO, MENSCH, R. MILLER, MOUL, MURT, PETRARCA, RAPP, READSHAW, ROCK, SANTONI, SAYLOR, SCAVELLO, SIPTROTH, K. SMITH, STABACK, STERN, SWANGER, J. TAYLOR AND YOUNGBLOOD, SEPTEMBER 12, 2008
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 12, 2008
AN ACT 1 Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and 2 Judicial Procedure) of the Pennsylvania Consolidated 3 Statutes, providing for penalties for the offense of 4 participation in a criminal street gang and for the 5 forfeiture of property associated with criminal street gang 6 activity, for process and seizure and for the powers and 7 duties of the Attorney General. 8 The General Assembly finds and declares as follows: 9 (1) There exists a great need to address the growing 10 crisis of criminal street gang presence in our communities. 11 (2) It is the right of every citizen to be secure and 12 protected from fear, intimidation and physical harm caused by 13 the activities of violent criminal street gangs. 14 (3) These activities, both individually and 15 collectively, present a clear and present danger to public 16 order and safety. 17 (4) An effective means of punishing and deterring the 18 criminal activities of criminal street gangs is establishing
1 an offense of participation in a criminal street gang and 2 through forfeiture of the assets, profits, proceeds and 3 instrumentalities acquired, accumulated or used by street 4 gangs. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Title 18 of the Pennsylvania Consolidated 8 Statutes is amended by adding a section to read: 9 § 911.1. Criminal street gang member. 10 (a) General rule.--Any person who is a member of a criminal 11 street gang and engages in criminal street gang activity commits 12 an offense. 13 (b) Grading.-- 14 (1) A person is guilty of a misdemeanor of the first 15 degree when the person is found to have committed one or more 16 criminal street gang activities while being a member of a 17 criminal street gang. 18 (2) A person is guilty of a felony of the third degree 19 if the person is found to be a member of a criminal street 20 gang and is convicted of one or more criminal street gang 21 activities within 1,000 feet of a public or private school or 22 engages a person under 18 years of age in any criminal 23 activity. 24 (c) Fund established.--The Criminal Street Gang Prevention 25 Fund is hereby established as an account in the State Treasury. 26 This fund shall be administered by the commission and shall be 27 comprised of costs imposed and collected in accordance with the 28 provisions of this section. All moneys in the fund and the 29 interest accruing thereon are hereby appropriated, upon approval 30 of the Governor, to the commission to carry out the provisions 20080H2372B4300 - 2 -
1 of this section. 2 (d) Fine.--In addition to any other punishment imposed, the 3 court shall order the defendant to pay a fine of not less than 4 $500 nor more than $5,000, which shall be forwarded to the fund. 5 (e) Collection.--Costs imposed under this section shall be 6 collected in accordance with local court rules by the clerk of 7 courts in the county where the violation has occurred. 8 (f) Application.--All costs provided for in this section 9 shall be in addition to and not in lieu of any fine authorized 10 by law. Nothing in this section shall be construed to affect, 11 suspend or diminish any other criminal sanction, penalty or 12 property forfeiture permitted by law. 13 (g) Grants.--Notwithstanding any other provision of law, the 14 commission shall, upon written application and subsequent 15 approval, use moneys received under this section to annually 16 award grant moneys deposited into the fund each fiscal year to 17 local governments and nonprofit organizations to provide 18 research-based approaches to assessment, prevention, 19 intervention, training, education, public awareness campaigns 20 and media literacy to reduce criminal gang activity in 21 communities with evidence of gang violence. 22 (h) Administration.--The commission shall develop guidelines 23 and procedures necessary to implement the grant program. The 24 commission shall equitably distribute grant moneys to approved 25 applicants. Each fiscal year, the commission shall make 26 available grant moneys equaling, except for administrative funds 27 as provided under this subsection, the balance of moneys 28 deposited into the fund as of June 30 of the previous fiscal 29 year. No more than 5% of total moneys deposited in the fund 30 during a fiscal year may be used by the commission to administer 20080H2372B4300 - 3 -
1 the provisions of this section. 2 (i) Other initiatives.--Funds disbursed under this section 3 shall not supplant Federal, State or local funds that would have 4 otherwise been made available for substance abuse prevention, 5 education, support, treatment and outreach initiatives. 6 (j) Definitions.--As used in this section, the following 7 words and phrases shall have the meanings given to them in this 8 subsection: 9 "Commission." The Pennsylvania Commission on Crime and 10 Delinquency." 11 "Criminal street gang." A formal or informal confederation, 12 alliance, network, conspiracy, understanding or other similar 13 conjoining of persons who operate individually or collectively 14 as a group or subgroup, with or without an established 15 hierarchy, that, through its membership obtained by pledge, 16 oath, swearing, ritual, distinct membership markings, symbolism, 17 common identifiers or other criteria that law enforcement 18 personnel use to identify criminal street gangs, engages in 19 criminal activity. 20 "Criminal street gang activity." The commission of, 21 attempted commission of, conspiracy to commit or solicitation to 22 commit an act of violence or an act to achieve illegal pecuniary 23 gain committed as a matter of course or pattern by a juvenile or 24 an adult who has been identified as a member of a criminal 25 street gang, which act is prohibited as follows: 26 (1) Under this title: 27 Section 903 (relating to criminal conspiracy) 28 Section 907 (relating to possessing instruments of 29 crime) 30 Section 908 (relating to prohibited offensive 20080H2372B4300 - 4 -
1 weapons) 2 Section 911 (relating to corrupt organizations) 3 Section 2501 (relating to criminal homicide) 4 Section 2502 (relating to murder) 5 Section 2506 (relating to drug delivery resulting in 6 death) 7 Section 2701 (relating to simple assault) 8 Section 2702 (relating to aggravated assault) 9 Section 2705 (relating to recklessly endangering 10 another person) 11 Section 2706 (relating to terroristic threats) 12 Section 2707 (relating to propulsion of missiles into 13 an occupied vehicle or onto a roadway) 14 Section 2707.1 (relating to discharge of a firearm 15 into an occupied structure) 16 Section 2709 (relating to harassment) 17 Section 2901 (relating to kidnapping) 18 Section 2903 (relating to false imprisonment) 19 Section 2906 (relating to criminal coercion) 20 Section 3121 (relating to rape) 21 Section 3123 (relating to involuntary deviate sexual 22 intercourse) 23 Section 3124.1 (relating to sexual assault) 24 Section 3301 (relating to arson and related offenses) 25 Section 3304 (relating to criminal mischief) 26 Section 3307 (relating to institutional vandalism) 27 Section 3502 (relating to burglary) 28 Section 3503 (relating to criminal trespass) 29 Section 3701 (relating to robbery) 30 Section 3702 (relating to robbery of motor vehicle) 20080H2372B4300 - 5 -
1 Section 3921 (relating to theft by unlawful taking or 2 disposition) 3 Section 3923 (relating to theft by extortion) 4 Section 3925 (relating to receiving stolen property) 5 Section 3928 (relating to unauthorized use of 6 automobiles and other vehicles) 7 Section 3934 (relating to theft from a motor vehicle) 8 Section 4952 (relating to intimidation of witnesses 9 or victims) 10 Section 4953 (relating to retaliation against 11 witness, victim or party) 12 Section 6110.1 (relating to possession of firearm by 13 minor) 14 Section 6110.2 (relating to possession of firearm 15 with altered manufacturer's number) 16 Section 6111 (relating to sale or transfer of 17 firearms) 18 Section 6301 (relating to corruption of minors) 19 Section 6302 (relating to sale or lease of weapons 20 and explosives) 21 Section 6319 (relating to solicitation of minors to 22 traffic drugs) 23 Section 7611 (relating to unlawful use of computer 24 and other computer crimes). 25 (2) Under section 13 of the act of April 14, 1972 26 (P.L.233, No.64), known as The Controlled Substance, Drug, 27 Device and Cosmetic Act. 28 "Criminal street gang member." A person who: 29 (1) belongs to a criminal street gang; 30 (2) by self-proclamation asserts that the person is a 20080H2372B4300 - 6 -
1 member of a criminal street gang; or 2 (3) knowingly acts in furtherance of criminal street 3 gang activities or acts as an accessory before or after the 4 fact. 5 "Fund." The Criminal Street Gang Prevention Fund. 6 Section 2. Title 42 is amended by adding a section to read: 7 § 6801.2. Criminal street gang forfeiture. 8 (a) General rule.--The following shall be subject to 9 forfeiture to the Commonwealth and no property right shall exist 10 in them: 11 (1) Money, negotiable instruments, securities or other 12 things of value furnished or intended to be furnished by any 13 person to facilitate criminal street gang activity. 14 (2) Real property used or intended to be used to 15 facilitate criminal street gang activity, including 16 structures or other improvements thereon, and any right, 17 title and interest in the whole or any lot or tract of land 18 any appurtenances or improvements, which is used or intended 19 to be used in any manner or part to commit or to facilitate 20 the commission of criminal street gang activity and things 21 growing on, affixed to and found in the land. 22 (b) Presumption.-- 23 (1) No property shall be forfeited under this section, 24 to the extent of the interest of an owner, by reason of any 25 act or omission established by the owner to have been 26 committed or omitted without the knowledge or consent of that 27 owner. Such money and negotiable instruments found in 28 proximity or relation to criminal street gang activity shall 29 be rebuttably presumed to be proceeds derived from criminal 30 street gang activity. 20080H2372B4300 - 7 -
1 (2) No valid lien or encumbrance on real property shall 2 be subject to forfeiture or impairment under this section. A 3 lien which is fraudulent or intended to avoid forfeiture 4 under this section shall be invalid. 5 (3) Any firearm, including, but not limited to, a rifle, 6 shotgun, pistol, revolver, machine gun, zip gun or any type 7 of prohibited offensive weapon as that term is defined under 8 18 Pa.C.S. (relating to crimes and offenses), which is used 9 or intended for use to facilitate criminal street gang 10 activity and such operable firearm as is found to be in 11 relation to criminal street gang activity shall be rebuttably 12 presumed to be used or intended for use to facilitate a 13 criminal street gang activity. 14 (c) Destruction of weapons.--A weapon forfeited under this 15 section shall be immediately destroyed by the receiving law 16 enforcement agency. 17 (d) Property subject to forfeiture.--In accordance with 18 subsection (k), property subject to forfeiture under this 19 section may be seized by the law enforcement authority upon 20 process issued by any court of common pleas having jurisdiction 21 over the property. Seizure without process may be made if: 22 (1) the seizure is incident to an arrest or a search 23 under a search warrant or inspection under an administrative 24 inspection warrant; 25 (2) the property subject to seizure has been the subject 26 of a prior judgment in favor of the Commonwealth in a 27 criminal injunction or forfeiture proceeding under this 28 section; 29 (3) there is a probable cause to believe that the 30 property is dangerous to public health or safety; or 20080H2372B4300 - 8 -
1 (4) there is probable cause to believe that the property 2 has been used or is intended to be used in criminal street 3 gang activity. 4 (e) Seizure without process.--In the event seizure without 5 process occurs, as provided under this section, proceedings for 6 the issuance thereof shall be immediately initiated. 7 (f) Custody of property.-- 8 (1) Property taken or detained under this section shall 9 not be subject to replevin but is deemed to be in the custody 10 of the law enforcement authority subject only to the orders 11 and decrees of the court of common pleas having jurisdiction 12 over the forfeiture proceedings and of the district attorney 13 or the Attorney General. 14 (2) When property is seized under this section, the law 15 enforcement authority shall place the property under seal and 16 either: 17 (i) remove the property to a place designated by it; 18 or 19 (ii) require that the district attorney or Attorney 20 General take custody of the property and remove it to an 21 appropriate location for disposition in accordance with 22 law. 23 (g) Use of property held in custody.-- 24 (1) Whenever property is forfeited under this section, 25 the property shall be transferred to the custody of the 26 district attorney if the law enforcement authority seizing 27 the property has local or county jurisdiction or to the 28 Attorney General if the law enforcement authority seizing the 29 property has Statewide jurisdiction. 30 (2) The district attorney or the Attorney General, where 20080H2372B4300 - 9 -
1 appropriate, may: 2 (i) retain the property for official use; or 3 (ii) sell any forfeited property which is not 4 required to be destroyed by law and which is not harmful 5 to the public. The proceeds from any such sale shall be 6 used to pay all proper expenses of the proceedings for 7 forfeiture and sale, including expenses of seizure, 8 maintenance of custody, advertising and court costs. The 9 balance of the proceeds shall be dealt with in accordance 10 with subsections (h) and (i). 11 (h) Use of cash or proceeds of property.-- 12 (1) Cash or proceeds of forfeited property transferred 13 to the custody of the district attorney pursuant to 14 subsection (f) shall be placed in the operating fund of the 15 county in which the district attorney is elected. 16 (2) The appropriate county authority shall immediately 17 release from the operating fund, without restriction, a like 18 amount for the use of the district attorney in the 19 enforcement of the provisions of this section. 20 (3) The entity having budgetary control shall not 21 anticipate future forfeitures or proceeds from the operating 22 fund in adoption and approval of the budget for the district 23 attorney. 24 (i) Distribution of property among law enforcement 25 authorities.--If both municipal and State law enforcement 26 authorities were substantially involved in effecting a seizure 27 under this section, the court having jurisdiction over the 28 forfeiture proceedings shall equitably distribute the property 29 between the district attorney and the Attorney General. 30 (j) Authorization to utilize property.--The district 20080H2372B4300 - 10 -
1 attorney and the Attorney General shall utilize forfeited 2 property or proceeds thereof for the purpose of enforcing the 3 provisions of this section. In appropriate cases, the district 4 attorney and the Attorney General shall designate proceeds from 5 forfeited property to be utilized by community-based drug and 6 crime-fighting programs and for relocation and protection of 7 witnesses in criminal cases. 8 (k) Annual audit of forfeited property.-- 9 (1) Each county in this Commonwealth shall provide, 10 through the controller, board of auditors or other 11 appropriate auditor and the district attorney, an annual 12 audit of all forfeited property and proceeds obtained under 13 this section. The audit shall not be made public but shall be 14 submitted to the Office of Attorney General. 15 (2) Each county shall report all forfeited property and 16 proceeds obtained under this section and the disposition 17 thereof to the Attorney General by September 30 of each year. 18 (l) Annual report and confidential information regarding 19 property.-- 20 (1) The Attorney General shall annually submit a report 21 to the Appropriations and Judiciary Committees of the Senate 22 and to the Appropriations and Judiciary Committees of the 23 House of Representatives, specifying the forfeited property 24 or proceeds thereof obtained under this section. The report 25 shall give an accounting of all proceeds derived from the 26 sale of forfeited property and the use made of unsold 27 forfeited property. 28 (2) The Attorney General shall adopt procedures and 29 guidelines governing the release of information by the 30 Attorney General to protect the confidentiality of forfeited 20080H2372B4300 - 11 -
1 property or proceeds used in ongoing criminal street gang 2 activity. 3 (m) Proceeds and appropriations.--The proceeds or future 4 proceeds from forfeited property under this section shall be in 5 addition to any appropriation made to the Office of Attorney 6 General. 7 (n) Applicability of forfeiture.--Property owned by a 8 defendant who is convicted under 18 Pa.C.S. § 911.1 (relating to 9 criminal street gang member) shall be subject to forfeiture upon 10 a conviction which occurs on or after the effective date of this 11 section. 12 (o) Definitions.--As used in this section, the following 13 words and phrases shall have the meanings given to them in this 14 subsection: 15 "Criminal street gang." A formal or informal confederation, 16 alliance, network, conspiracy, understanding or other similar 17 conjoining of persons who operate individually or collectively 18 as a group or subgroup, with or without an established 19 hierarchy, that through its membership obtained by pledge, oath, 20 swearing, ritual, distinct membership markings, symbolism, 21 common identifiers or other criteria that law enforcement 22 personnel use to identify criminal street gangs, engages in 23 criminal activity. 24 "Criminal street gang activity." The commission of, 25 attempted commission of, conspiracy to commit or solicitation to 26 commit an act of violence or an act to achieve illegal pecuniary 27 gain committed as a matter of course or pattern by a juvenile or 28 an adult who has been a member of a criminal street gang, which 29 act is prohibited as follows: 30 (1) Under 18 Pa.C.S. (relating to crimes and offenses): 20080H2372B4300 - 12 -
1 Section 903 (relating to criminal conspiracy) 2 Section 907 (relating to possessing instruments of 3 crime) 4 Section 908 (relating to prohibited offensive 5 weapons) 6 Section 911 (relating to corrupt organizations) 7 Section 2501 (relating to criminal homicide) 8 Section 2502 (relating to murder) 9 Section 2506 (relating to drug delivery resulting in 10 death) 11 Section 2701 (relating to simple assault) 12 Section 2702 (relating to aggravated assault) 13 Section 2705 (relating to recklessly endangering 14 another person) 15 Section 2706 (relating to terroristic threats) 16 Section 2707 (relating to propulsion of missiles into 17 an occupied vehicle or onto a roadway) 18 Section 2707.1 (relating to discharge of a firearm 19 into an occupied structure) 20 Section 2709 (relating to harassment) 21 Section 2901 (relating to kidnapping) 22 Section 2903 (relating to false imprisonment) 23 Section 2906 (relating to criminal coercion) 24 Section 3121 (relating to rape) 25 Section 3123 (relating to involuntary deviate sexual 26 intercourse) 27 Section 3124.1 (relating to sexual assualt) 28 Section 3301 (relating to arson and related offenses) 29 Section 3304 (relating to criminal mischief) 30 Section 3307 (relating to institutional vandalism) 20080H2372B4300 - 13 -
1 Section 3502 (relating to burglary) 2 Section 3503 (relating to criminal trespass) 3 Section 3701 (relating to robbery) 4 Section 3702 (relating to robbery of motor vehicle) 5 Section 3921 (relating to theft by unlawful taking or 6 disposition) 7 Section 3923 (relating to theft by extortion) 8 Section 3925 (relating to receiving stolen property) 9 Section 3928 (relating to unauthorized use of 10 automobiles and other vehicles) 11 Section 3934 (relating to theft from a motor vehicle) 12 Section 4952 (relating to intimidation of witnesses 13 or victims) 14 Section 4953 (relating to retaliation against 15 witness, victim or party) 16 Section 6110.1 (relating to possession of firearm by 17 minor) 18 Section 6110.2 (relating to possession of firearm 19 with altered manufacturer's number) 20 Section 6111 (relating to sale or transfer of 21 firearms) 22 Section 6301 (relating to corruption of minors) 23 Section 6302 (relating to sale or lease of weapons 24 and explosives) 25 Section 6319 (relating to solicitation of minors to 26 traffic drugs) 27 Section 7611 (relating to unlawful use of computer 28 and other computer crimes). 29 (2) Under section 13 of the act of April 14, 1972 30 (P.L.233, No.64), known as The Controlled Substance, Drug, 20080H2372B4300 - 14 -
1 Device and Cosmetic Act. 2 "Criminal street gang member." A person who: 3 (1) belongs to a criminal street gang; 4 (2) by self-proclamation asserts that the person is a 5 member of a criminal street gang; or 6 (3) knowingly acts in furtherance of criminal street 7 gang activities or acts as an accessory before or after the 8 fact. 9 Section 3. This act shall take effect in 60 days. F25L18JAM/20080H2372B4300 - 15 -