Bill Text: PA HB296 | 2009-2010 | Regular Session | Introduced

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Bill Title: 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.

Spectrum: Slight Partisan Bill (Democrat 29-19)

Status: (Introduced - Dead) 2009-02-09 - Referred to JUDICIARY [HB296 Detail]

Download: Pennsylvania-2009-HB296-Introduced.html

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PRINTER'S NO. 319
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 296 Session of2009
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.
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(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
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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
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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)
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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).
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(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
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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;
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(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,
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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
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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
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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.
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