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F I S C A L I M P A C T R E P O R T

SPONSOR Swisstack

DATE TYPED 02/08/05 HB 226/aHJC

SHORT TITLE Street Gang Activity Penalty

SB

ANALYST Ford

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB 227

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the District Attorneys (AODA)

Corrections Department

Public Defender Department

No Response Received

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee amendment makes several changes to the provisions relating to

the new crimes of gang recruitment and gang recruitment by threat or violence. The amendment:

•

Changes the definitions of “gang recruitment” and “gang recruitment by threat or vio-

lence” by removing the provisions that include solicitation or recruitment of another with

the intent that the person solicited or recruited actively participate in a criminal street

gang;

House Bill 226/aHJC -- Page 2

•

Adds burglary, pursuant to Section 30-16-3 NMSA 1978, and unlawful taking of a motor

vehicle, pursuant to Section 66-3-504 NMSA 1978, to the list of offenses used to define

“criminal street gang;”

•

Removes “conspiracy to commit or solicitation to commit” from the definition of “pattern

of criminal gang activity.”

Synopsis of Original Bill

House Bill 226 creates the new crimes of gang recruitment and gang recruitment by threat or vio-

lence and establishes the penalties for violations of the law.

Significant Issues

House Bill 226 defines “gang recruitment” and “gang recruitment by violence,” making it illegal

to recruit a person, or to use threats of violence or actual violence to coerce a person, into par-

ticipating in a street gang or gang activity. The bill establishes penalties as follows:

Gang recruitment: misdemeanor;

Gang recruitment of a minor: fourth degree felony;

Gang recruitment by threat or violence: fourth degree felony;

Gang recruitment of a minor by threat or violence: third degree felony.

The bill also defines “criminal street gang” and “pattern of criminal gang activity” for the pur-

pose of implementing the new section of the criminal code.

FISCAL IMPLICATIONS

The total fiscal impact to the state is indeterminate and would depend on the volume and com-

plexity of trials related to new criminal violations.

The Public Defender Department writes that this bill could have significant costs because of the

inherent complexities of trying individuals for violations. The department notes that the bill

would require “mini-trials” on the issue of whether a street gang exists as well as whether it has

engaged in a pattern of criminal gang activity. Both the Public Defender Department and the

AODA anticipate that expert witnesses would be required in many or all trials, which would in-

crease the costs of a trial.

The Corrections Department notes that this bill could lead to an increase in the prison population

since it creates new crimes. However, it also notes that the penalties may serve as a deterrent to

gang activity, which could have the effect of reducing the prison population.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

The bill relates to House Bill 227, which enhances the basic sentence for crimes committed to

further gang activity.

House Bill 226/aHJC -- Page 3

OTHER SUBSTANTIVE ISSUES

The Public Defender Department writes that the bill has considerable guilt-by-association rami-

fications, noting that the law could be used against people with marginal involvement in gang

activity.

The Public Defender Department also writes that the bill’s language making it illegal to “pro-

mote, further or assist in felonious conduct by members of a criminal street gang” may be uncon-

stitutionally broad and vague as it has no requirement of knowledge or intent. The AODA also

anticipates a constitutional challenge to this bill, noting that similar legislation was passed in

California in 1988.

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