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SPONSOR: |
Tinnin |
DATE TYPED: |
03/03/03 |
HB |
703 |
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SHORT TITLE: |
Gang Enforcement and Prevention Act |
SB |
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ANALYST: |
Fox-Young |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
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|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates
to HB299, HB491, HB700, SJM47
Responses
Received From
Public
Defender Department (PDD)
Administrative
Office of the Courts (AOC)
Attorney
General (AG)
Department
of Health (DOH)
Corrections
Department (CD)
Administrative
Office of the District Attorneys (AODA)
SUMMARY
Synopsis
of Bill
House Bill 703 enacts the “Gang Enforcement and
Prevention Act.”
The bill includes a general statement of
legislative intent, stating that the purpose of the Act is not to interfere
with constitutionally protected rights of freedom of speech and freedom of association,
but rather to deter and punish criminal activity engaged in by criminal gangs.
“Criminal gang” means an organization, association or group of three or more persons that has a common identifying sign or symbol whose members engage in a pattern of criminal gang activity.
“Pattern of criminal gang activity” means convictions for the commission of two or more specified criminal offenses (the bill lists 28 felony offenses), provided that at least one of the convictions occurs within three years of a prior conviction, and that the convictions are obtained against two or more members of the same criminal gang.
The bill creates the crime of “inducement of
minors to participate in a pattern of criminal gang activity.” The penalty is a third degree felony.
The bill provides for increases in basic
sentences when one of the 28 specified felonies is committed with the intent to
aid and abet a criminal gang with a pattern of criminal gang activity. Increases are as follows:
The bill provides that if a prima facie case is
established before a jury, showing that a felony was committed with the intent
to aid and abet a criminal gang with a pattern of criminal gang activity, the
court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and a
prima facie case is established, showing the felony was committed with the same
intent to aid and abet, the court shall decide the issue and make a separate
finding of fact thereon.
The bill provides that if at any time, either after sentence or conviction, it appears that the offender convicted of a specified felony committed the felony while engaging in a pattern of criminal gang activity, it is the duty of the district attorney to file an information charging the offender pursuant to the provisions of the Gang Enforcement and Prevention Act.
Significant
Issues
The Attorney General (AG) notes that the
provisions of the bill will likely invite constitutional challenges. AG notes the court may deem them void for
vagueness, for burdening the first amendment right of association and on equal
protection grounds.
The definitions of “criminal gang” and “pattern
of criminal gang activity” are so general as to be applicable to numerous cases
that lie outside the general conceptions of gang activity. The bill does not contemplate the numerous
instances in which members of identifiable groups may be charged with
inducement of minors or participation in a criminal gang, the outcome of which
will not be “to deter and punish criminal activity engaged in by criminal
gangs,” but only to increase the leverage prosecutors have in pursuing criminal
charges pursuant to other sections of the criminal code.
AG indicates that it is unclear whether section
4 is a form of solicitation statute (NMSA 1978, § 30-28-3) or a
gang-recruitment statute, noting that if the statute is interpreted to apply to
soliciting a person to commit a specific crime, it overlaps § 30-28-3 and may
reduce penalties under some circumstances.
If, however, the statute is interpreted broadly to criminalize gang
recruitment without tying either the recruiter or the recruit to the commission
of a specific crime, it could be considered an unconstitutional abridgment of
the right of free association. AG references
State v. O.C., 748 So.2d 945 (Fla. 1999) and Dawson v. Delaware,
503 U.S. 159 (1992).
AG notes that Section 5 is a
"gang-enhancer" sentencing provision and that such gang-enhancers
have been challenged on constitutional grounds in several states. AG references People v. Gardeley, 927
P.2d 713 (Cal. 1997) in which the California Supreme Court found no constitutional
shortcoming in California's gang-enhancer, Penal Code 186.22. AG notes that California's statute is
broader than this bill, in that it includes attempted and uncharged crimes as
well as crimes for which a conviction has been obtained. AG also references State v. Ochoa, 943 P.2d 814 (Ariz. 1997) and State
v. Frazier, 649 N.W.2d 828 (Minn. 2002). (other decisions upholding
gang-enhancer statutes)
AG further notes that because section 5 requires
a jury determination and applies to association with the specific intent to
commit criminal activity rather than association alone, it avoids problems that
have led courts to invalidate gang-enhancers in some other states. AG references State v. O.C., 748
So.2d 945 (Fla. 1999) and State v. Lopes, 980 P.2d 191 (Utah 1999).
The Public Defender Department (PDD) notes
unless there is a gang “charter,” specifically stating that criminal activity
is the purpose of the association, it is unclear how courts will make determinations
as to whether a gang leaders are responsible for criminal activity. PDD notes that as the bill is drafted, a
minor could commit a criminal act that is not sanctioned by adult gang members,
but that would subject the entire association to felony sanctions.
AOC notes that is not clear what evidence courts
will use to make a determination that an individual is a member of a particular
gang and whether an individual committed a crime with the intent to aid and
abet a criminal gang.
DOH notes that the bill provides additional punitive measures for gang-related criminal activity, but it does not address the need for long-range behavioral change. Preventing adolescent gang involvement and subsequent criminal activity is a complex issue that providing for criminal penalties alone will not solve. DOH references a study of residents at youth detention centers overseen by Children, Youth and Families Department (CYFD) on December 1, 1995, revealing that 66% had dropped out or been kicked out of school, 60% had a substance abuse issue, 50% had a mental health issue, 33% were special education designated, and 30% had a history of physical and/or sexual abuse.
PDD notes that the bill, as a result of its
far-reaching Constitutional implications, will likely occasion a significant
increase in the appellate caseload, driving up costs for courts, district attorneys,
PDD and AG. PDD estimates an annual
recurring cost of $200.0 to the department, comprised of increased funding for
two additional staff attorneys and an increase in contract attorney costs.
The bill provides that it is the duty of the district attorney to file an information charging the offender pursuant to the provisions of the Act if at any time, either after sentence or conviction, it appears that the offender convicted of a specified felony committed the felony while engaging in a pattern of criminal gang activity. Given the number of felony convictions that will likely fall into this category, this procedural change will likely prompt dramatic increases in costs across the judicial system.
AOC notes that courts will require additional resources to carry out the provisions of the bill regarding the submission of special interrogatories to juries where prima facie cases are established.
The Corrections
Department (CD) estimates that approximately two-thirds of the individuals
convicted of the new offense will be sentenced to prison, and that the
remaining offenders will be sentenced to probation. Given that the offense is defined somewhat narrowly, the
department estimates an increase of between five and 30 convictions each
year.
CD notes that based on fiscal
year 02 actual expenditures, the annual contract/private prison cost of
incarceration is $23,552 for males, and the annual per client cost to house a
female inmate at a privately operated facility is $25,117. Because state-owned prisons are essentially
at capacity, any net increase in inmate population will be housed at a
contract/private facility. The annual
per client cost for a standard supervision program in Probation and Parole is
$1,533, and the annual per client cost in Intensive Supervision programs is
$2,964. The annual per client cost in
department-operated Community Corrections programs is $5,618, and the annual
per client cost in privately-operated Community Corrections programs is
$10,953.
TECHNICAL ISSUES
AG notes that in section 5, paragraph A, it is
not clear that the technical phrase "aid and abet" bears its
technical meaning. AG recommends
excluding the principal criminal, who is by definition not an aide and abettor,
and altering the language of section 5, paragraphs A, B and C, to read:
"…is committed with the intent to promote, further, or assist in any
criminal conduct by a criminal gang, …" AG notes that this language
mirrors that of California's Penal Code sec. 186.22(b)(1).
Section 4 makes it a third-degree felony to induce
a minor to "participate in a pattern of criminal gang activity." AG notes that if sections 3(B) and 4 are
read together, the latter requires the state to prove that the defendant used
threats, intimidation or persuasion to induce a minor "to participate in a
convictions for the commission of two or more of the following criminal
offenses…” This doesn’t make
sense. AG indicates that this language,
coupled with the lack of a definition of “persuasion” make section 4 vulnerable
to a void-for-vagueness challenge.
For purposes of clarity, AG recommends amending
the language of section 3, paragraph B, defining a pattern of criminal gang
activity, to read, "'pattern of criminal gang activity' means that members
of the organization, association or group of three or more persons alleged to
be a criminal gang have been convicted of committing two or more of the
following criminal offenses; provided…"
AG suggests including a severability clause so that the sentence
enhancement provision (section 5) could survive a successful constitutional
attack on the recruitment provision (section 4).
CD indicates that it is
unclear whether the youthful offender enhancement (section 5, paragraph A) may
not be suspended or deferred.
JCF/njw