116238-2:n:02/16/2010:LCG/th LRS2010-155R1
| SYNOPSIS: | This bill, entitled the Alabama Street Gang Act, would provide legislative findings and define terms. |
| This bill would provide for the crimes and the punishments for participating in a criminal syndicate, compelling street gang membership, and injury by graffiti. | |
| This bill would provide that intentional killing of a victim by an active criminal street gang member is an aggravating circumstance for purposes of imposing the death penalty. | |
| Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose. | |
| The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment. |
Relating to gangs; to make legislative findings; to define terms; to provide for certain crimes and to establish penalties relating to criminal street gangs, criminal syndicates, and graffiti; to amend Section 13A-5-49, Code of Alabama 1975, to make murder by a criminal street gang member an aggravating circumstance in certain circumstances; to repeal Section 13A-6-26, Code of Alabama 1975, relating to compelling street gang membership; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall be known and may be cited as the Alabama Street Gang Act.
Section 2. (a) The Legislature finds and declares that:
(1) It is the right of every person, regardless of race, color, creed, religion, national origin, sex, age, or disability, to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals.
(2) Urban, suburban, and rural communities, neighborhoods, and schools throughout the state are being terrorized and plundered by street gangs.
(3) There are numerous street gangs operating in Alabama and are spreading into suburban and rural areas of Alabama.
(4) Street gangs are often controlled by criminally sophisticated adults who take advantage of our youth by intimidating and coercing them into membership by employing them as drug couriers and runners and by using them to commit brutal crimes against persons and property to further the financial benefit to and dominance of the street gang.
(5) Street gang activities present a clear and present danger to public order and safety and citizens are not constitutionally protected.
(6) No society is or should be required to endure such activities without redress.
(b) It is not the intent of this act to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The Legislature hereby recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, to lawfully associate with others who share similar beliefs, to petition lawfully constituted authority for the redress of perceived grievances, and to participate in the electoral process.
Section 3. For purposes of this act, the following terms shall have the following meanings:
(1) CRIMINAL STREET GANG. Any combination, confederation, alliance, network, conspiracy, understanding, or other similar arrangement in law or in fact of three or more persons organized formally or informally, so constructed that the organization will continue its operation even if individual members enter or leave the organization, which through its membership or through the agency of any member engages in a course or pattern of criminal activity.
(2) CRIMINAL STREET GANG MEMBER. An individual to whom at least two of the following seven criteria indicating criminal street gang membership apply:
a. Self-proclamation.
b. Witness testimony or official statement.
c. Written or electronic correspondence.
d. Paraphernalia or photographs.
e. Tattoos.
f. Clothing or colors.
g. Any other indicia of street gang membership.
(3) CRIMINAL SYNDICATE. Any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct that violates any one or more provisions of any felony statute of this state.
(4) GRAFFITI. Any form of unauthorized painting, printing, writing, spraying, scratching, affixing, or inscribing on the property of another regardless of the content or nature of the material used which is applied to any public or private property without the consent of the owner of the property.
Section 4. (a) For the purposes of this act, it shall not be necessary to show that a particular conspiracy, combination, or enjoining of persons possesses, acknowledges, or is known by any common name, insignia, flag, means of recognition, secret signal or code, creed, belief, structure, leadership or command structure, method of operation or criminal enterprise, concentration or specialty, membership, age, or other qualifications, initiation rites, geographical or territorial sites or boundary or location, or other unifying mark, manner, protocol, or method of expressing or indicating membership when the conspiracy's existence, in law or in fact, can be demonstrated by a preponderance of other competent evidence.
(b) Any evidence reasonably tending to show or demonstrate, in law or in fact, the existence of or membership in any conspiracy, confederation, or other association described herein, or probative of the existence of or membership in any such association, shall be admissible in any action or proceeding brought under this act.
Section 5. In any proceeding to determine whether street gang membership exists pursuant to this act, expert testimony is admissible to show particular conduct, status, and customs indicative of criminal gangs, including, but not limited to, the following:
(1) Characteristics of persons who are members of criminal gangs.
(2) Specific rivalries between criminal gangs.
(3) Common practices and operations of criminal gangs and the members of those gangs.
(4) Social customs and behavior of members of criminal gangs.
(5) Terminology used by members of criminal gangs.
(6) Code of conduct, including criminal conduct, of particular criminal gangs.
(7) The types of crimes that are likely to be committed by a particular criminal gang or by criminal gangs in general.
Section 6. (a) A person commits the crime of participating in a criminal syndicate by doing any of the following:
(1) Intentionally organizing, managing, directing, supervising, or financing a criminal syndicate with the intent to promote or further the criminal objectives of the syndicate.
(2) Knowingly inciting or inducing others to engage in violence or intimidation to promote or further the criminal objectives of a criminal syndicate.
(3) Furnishing advice or direction in the conduct, financing, or management of a criminal syndicate's affairs with the intent to promote or further the criminal objectives of a criminal syndicate.
(4) Intentionally promoting or furthering the criminal objectives of a criminal syndicate by inducing or committing any act or omission by a public servant in violation of his or her official duty.
(5) Hiring, engaging, or using a minor child for any conduct preparatory to or in completion of any offense in this section.
(b) A person shall not be convicted pursuant to subsection (a) on the basis of accountability as an accomplice unless he or she participates in violating this section in one of the ways specified.
(c) A person commits the crime of assisting a criminal syndicate by committing any felony offense, whether completed or preparatory, with the intent to promote or further the criminal objectives of a criminal syndicate.
(d) Except as provided in subsection (e) or (f), participating in a criminal syndicate is a Class B felony.
(e) A violation of subdivision (5) of subsection (a) is a Class A felony.
(f) A person who violates subdivision (1), (2), (3), or (4) of subsection (a) for the benefit of, at the direction of, or in association with any criminal street gang or as a criminal street gang member, with the intent to promote, further, or assist any criminal conduct by the criminal street gang, is guilty of a Class B felony.
(g) Assisting a criminal syndicate is a Class C felony. If committed for the benefit of, at the direction of, or in association with any criminal street gang with the intent to promote, further, or assist any criminal conduct by the gang, assisting a criminal syndicate is a Class B felony.
(h) Use of a common name or common identifying sign or symbol shall be admissible and may be considered in proving the combination of persons or enterprises required by this section.
Section 7. (a) A person who expressly or by implication threatens to do bodily harm or does bodily harm to a person, a family member or a friend of the person, or any other person, or uses any other unlawful criminal means to solicit or cause any person to join or remain in a criminal street gang is guilty of the crime of compelling criminal street gang membership.
(b) The crime of compelling criminal street gang membership is a Class C felony.
(c) Notwithstanding subsection (b), the crime of compelling criminal street gang membership is a Class A felony if the defendant is over the age of 18 years and the other person is under the age of 18 years.
Section 8. (a) No person may carry any aerosol spray paint can or broad-tipped indelible marker or other implement used to produce graffiti with the intent to violate Section 9. For the purpose of this section, the term "broad-tipped indelible marker" means any felt-tipped marker, or similar implement, which contains a fluid which is not water soluble and which has a flat or angled writing surface one-quarter inch or greater.
(b) No person, with the intent to violate Section 9, may sell an aerosol spray paint can, broad-tipped indelible marker, or other implement used to produce graffiti to a minor.
(c) No person, for the purpose of violating Section 9, may purchase an aerosol spray paint can or broad-tipped indelible marker or other implement used to produce graffiti for a minor.
(d) Anyone who intentionally or knowingly violates subsection (a), (b), or (c) commits the crime of Possession/Distribution of Graffiti Implements. Possession/Distribution of Graffiti Implements is a Class A misdemeanor.
Section 9. (a) A person commits the crime of injury by graffiti if he or she intentionally or knowingly applies graffiti to any public or private building or other real or personal property owned, operated, or maintained by a governmental entity or any agency or instrumentality thereof. A person convicted of violating this section shall be punished in the following manner:
(1) Injury by graffiti which exceeds two thousand five hundred dollars ($2,500) constitutes injury by graffiti in the first degree. Injury by graffiti in the first degree is a Class B felony.
(2) Injury by graffiti which exceeds five hundred dollars ($500) but does not exceed two thousand five hundred dollars ($2,500) constitutes injury by graffiti in the second degree. Injury by graffiti in the second degree is a Class C felony.
(3) Injury by graffiti which does not exceed five hundred dollars ($500) constitutes injury by graffiti in the third degree. Injury by graffiti in the third degree is a Class A misdemeanor.
(b) In addition to any punishment for violation of this section, the court may order the defendant to make restitution to the victim for damage in the amount of removal, repair, or replacement costs. An additional amount of one thousand dollars ($1,000) in restitution shall be added to removal costs if the graffiti is positioned on an overpass or an underpass, requires that traffic be interfered with in order to remove it, or the entity responsible for the area in which the clean-up is to take place must provide assistance in order for the removal to take place safely.
(c) A person who voluntarily and at his or her own expense removes graffiti for which he or she is responsible may be credited for the removal costs against restitution ordered by a court.
(d) Where the defendant is a minor, and is convicted or adjudicated in the juvenile court under this section, the court, as a condition of probation in addition to the monetary restitution award imposed pursuant to this section, may order the offender to clean up graffiti of his or her own and any other at a time and place within the jurisdiction of the court, as follows:
(1) For a first conviction or adjudication, the court may require the offender to clean up graffiti for not less than eight hours.
(2) For a second conviction or adjudication, the court may require the offender to clean up graffiti for not less than 16 hours.
(3) For a third conviction or adjudication, the court may require the offender to clean up graffiti for not less than 24 hours.
(e) Any compensatory service of a person under the age of 18 years which is required under this section may be performed in the presence and under the direct supervision of the person's parent or legal guardian. The person's parent or legal guardian shall report completion of the order to the court.
(f) The court may order the parent or legal guardian of a minor to who violates this section to make such restitution not to exceed two thousand five hundred dollars ($2,500) in either of the following circumstances:
(1) The minor intentionally damages, defaces, destroys, or takes the property of another.
(2) The minor recklessly or willfully shoots or propels a missile or other object at or against a motor vehicle, bus, airplane, boat, locomotive, train, railway car, or caboose, whether moving or standing.
(g) The court may waive part or all of the liability for damages by the parent or legal guardian under subsection (f) if the offender is adjudicated in the juvenile court under either of the following circumstances:
(1) Upon a consent decree or Child in Need of Supervision (CHINS) petition.
(2) Determines the parent or legal guardian did either of the following:
a. Made a reasonable effort to restrain the wrongful conduct.
b. Reported it to the property owner involved or the law enforcement agency having primary jurisdiction after the parent or legal guardian knew of the minor's unlawful act and prior to the time the minor was arrested or apprehended by a peace officer or by anyone acting on behalf of the property owner involved.
(h) In addition to any punishment provided for violation of this section, the court may order the defendant to perform monitored community service or clean up graffiti as outlined for a juvenile conviction or adjudication pursuant to this act.
Section 10. Section 13A-5-49 of the Code of Alabama 1975, is amended to read as follows:§13A-5-49.
"Aggravating circumstances shall be the following:
"(1) The capital offense was committed by a person under sentence of imprisonment;
"(2) The defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person;
"(3) The defendant knowingly created a great risk of death to many persons;
"(4) The capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary or kidnapping;
"(5) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
"(6) The capital offense was committed for pecuniary gain;
"(7) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;
"(8) The capital offense was especially heinous, atrocious, or cruel compared to other capital offenses;
"(9) The defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct; or
"(10) The capital offense was one of a series of intentional killings committed by the defendant.
"(11) The defendant intentionally killed the victim while the defendant was an active criminal street gang member, as defined pursuant to the act adding this subdivision, and the murder was carried out to further the activities of the criminal street gang."
Section 11. Section 13A-6-26, Code of Alabama 1975, relating to compelling street gang membership, is repealed.
Section 12. Whenever conduct proscribed by this act is also proscribed by any other provision of law, the provision which carries the more serious penalty shall apply.
Section 13. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.
Section 14. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.