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Current Status Bill Number:View additional legislative information at the LPITS web site.3209 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990112 Primary Sponsor:Fleming All Sponsors:Fleming, Knotts, Hinson Drafted Document Number:l:\council\bills\pt\1147som99.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Criminal Gang Act, Crimes and Offenses, Minors, Courts, Juries and Jurors, multi- county gang activity, grand jury History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990203 Co-Sponsor added (Rule 5.2) by Rep. Hinson House 19990112 Introduced, read first time, 25 HJ referred to Committee House 19990106 Prefiled, referred to Committee 25 HJ Versions of This Bill
TO AMEND CHAPTER 17, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES AGAINST PUBLIC POLICY, BY ADDING ARTICLE 9 SO AS TO PROVIDE FOR THE SOUTH CAROLINA CRIMINAL GANG ACT WHICH PROHIBITS CERTAIN CONDUCT WITH REGARD TO CRIMINAL GANG ACTIVITY, TO PROVIDE PENALTIES FOR VIOLATIONS OF THESE PROVISIONS, TO PROVIDE FOR THE SEIZURE AND FORFEITURE OF REAL OR PERSONAL PROPERTY USED IN FURTHERANCE OF GANG CRIME, AND TO PROVIDE, UNDER CERTAIN CIRCUMSTANCES, FOR PARENTAL LIABILITY FOR PAYMENT TO THE STATE FOR THE COSTS OF CARE OF A MINOR ADJUDICATED DELINQUENT UNDER THESE PROVISIONS; AND TO AMEND SECTION 14-7-1630, AS AMENDED, RELATING TO THE JURISDICTION OF THE STATE GRAND JURY, SO AS TO ADD MULTI-COUNTY ACTIVITY OF CRIMINAL GANGS TO THAT JURISDICTION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 17, Title 16 of the 1976 Code is amended by adding:
Section 16-17-800. This article may be cited as the 'South Carolina Criminal Gang Act'.
Section 16-17-810. As used in this article:
(1) 'criminal gang" means a continuing organization, association, group, agency, alliance or enterprise of three or more persons who, collectively or individually, and in furtherance of or in connection with the existence or stated goals of the organization, association, group, agency, alliance or enterprise, commit crimes in violation of the laws of South Carolina or the United States of America;
(2) 'criminal gang member' means a person, whether a juvenile or an adult, who is:
(a) a participant in the planning, commission, attempted commission, or solicitation to commit a predicate gang crime; or
(b) affiliated with the criminal gang as demonstrated by his participation in any illegal activity with members of the criminal gang.
(3) 'pattern of criminal gang activity' means the commission, attempted commission, or solicitation to commit two or more predicate gang crimes, at least one of which was committed on or after the effective date of this act and the first of which was committed not more than two years before the commission of another predicate gang crime; and
(4) 'predicate gang crime' means the commission, attempted commission, or solicitation to commit an offense that, if committed by an adult, constitutes a felony under state or federal law or the common law offense of assault and battery of a high and aggravated nature and that is committed by a person in furtherance of or in connection with the existence or stated goals of a criminal gang.
Section 16-17-820. (A) It is unlawful for a person to participate in a criminal gang. The elements of this offense are:
(1) a pattern of criminal gang activity conducted by members of a criminal gang; and
(2) participation in an activity that either directly or indirectly facilitated the accomplishment of one or more of the predicate gang crimes that form the pattern of criminal gang activity.
(B) This offense is a separate offense and not a lesser included offense of the underlying offense or offenses that constitute a predicate gang crime or a pattern of criminal gang activity.
(C) A person who violates subsection (A) is guilty of a felony and, upon conviction, shall be sentenced to a term of imprisonment of not less than ten years nor more than twenty years and for a second or subsequent offense, upon conviction, shall be sentenced to a term of imprisonment of not less than fifteen years nor more than thirty-five years.
Section 16-17-830. (A) It is unlawful for a person, whether a juvenile or an adult, to:
(1) recruit, solicit, induce, counsel, or command another person to be a member of a criminal gang; or
(2) conspire to recruit, solicit, induce, counsel, or command another person to be a member of a criminal gang.
(B) A person who violates subsection (A) is guilty of a felony and, upon conviction, shall be sentenced to:
(1) a term of not less than five years nor more than ten years or fined in the discretion of the court, or both, if the person recruited is a minor; or
(2) a term of not less than one year nor more than ten years or fined in the discretion of the court, or both, if the person recruited is an adult.
Section 16-17-840. (A) A person who knowingly allows his real or personal property to be used by a criminal gang in furtherance of the commission of a predicate gang crime may have his property forfeited to the State of South Carolina pursuant to the procedures set forth in Section 44-53-530.
(B) Property subject to forfeiture under this article may be seized by the department having authority upon a warrant issued by any court 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 an inspection under an administrative inspection warrant;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding based upon this article;
(3) the department has probable cause to believe that the property is directly or indirectly dangerous to public health or safety; or
(4) the department has probable cause to believe that the property was used or is intended to be used in violation of this article.
(C) In the event of seizure pursuant to subsection (B), proceedings under Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time.
(D) Property taken or detained under this section is not subject to replevin but is considered to be in the custody of the department making the seizure subject only to the order of the court having jurisdiction over the forfeiture proceedings. Property described in Section 16-17-840(A) is forfeited and transferred to the government at the moment of illegal use. Seizure and forfeiture proceedings confirm the transfer.
(E) For purposes of this section, when the seizure of property subject to seizure is accomplished by a joint effort of more than one law enforcement agency, the law enforcement agency where the property is physically located is the seizing agency. If concurrent jurisdiction exists over the property, the law enforcement agency initiating the investigation is the agency making the seizure.
(F) Law enforcement agencies shall take reasonable steps to maintain the property seized under this section. Equipment and conveyances seized must be removed to an appropriate storage place. Monies seized must be deposited in an interest-bearing account pending final disposition by the court unless the seizing agency determines the monies are of an evidential nature and provides for security in another manner.
(G) When property, monies, or anything else of value is seized, the law enforcement agency making the seizure, within ten days or as reasonable period of time after the seizure, shall submit a report to the appropriate prosecution agency.
(1) The report shall provide the following information with respect to the property seized:
(a) description;
(b) circumstances of seizure;
(c) present custodian and the location of the property;
(d) name of owner;
(e) name of lienholder, if any;
(f) seizing agency; and
(g) the nature of the predicate gang crime for which the property was seized; and
(h) if the property is a conveyance, the report shall include the:
(i) make, model, serial number, and year of the conveyance;
(ii) person in whose name the conveyance is registered; and
(iii) name of lienholder.
(2) In addition to the report required in subitem (1), the law enforcement agency shall prepare for public dissemination, upon request, a report providing the following information:
(a) a description of the nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(H) Officers may not use property or conveyances seized by a law enforcement agency or department for personal purposes.
Section 16-17-850. Forfeiture of property defined in Section 16-17-840(A) shall be accomplished pursuant to the procedure set forth in Section 44-53-530.
Section 16-17-860. A parent or legal guardian who knowingly allows his minor child to be involved in a criminal gang is liable to the State for support payment to defray the costs of the incarceration and care of the minor child if the child is committed to the custody of an approved local detention facility or the Department of Juvenile Justice as a consequence of the minor child's adjudication as a delinquent for violating provisions of this article. The procedure for obtaining an order of support is the same procedure as stated in Section 20-7-8040."
SECTION 2. Section 14-7-1630(A), as last amended by Act 335 of 1992, is further amended by adding an appropriately numbered subitem as follows:
"( ) predicate gang crimes as defined in Section 16-17-810 if the crimes are of a multi-county nature or have transpired, are transpiring, or have significance in more than one county."
SECTION 3. This act takes effect upon approval by the Governor.
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