S 37 Session 112 (1997-1998)
S 0037 General Bill, By Jackson and Cork
A BILL TO AMEND CHAPTER 1, TITLE 16 OF THE CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO FELONIES AND MISDEMEANORS, BY ADDING SECTION 16-1-130 SO AS
TO PROVIDE FOR AN INCREASE IN THE PENALTY FOR AN UNDERLYING OFFENSE IF THE
OFFENDER INTENTIONALLY SELECTS THE PERSON AGAINST WHOM THE CRIME IS COMMITTED
OR SELECTS THE PROPERTY THAT IS DAMAGED OR OTHERWISE AFFECTED BY THE CRIME IN
WHOLE OR IN PART BECAUSE OF THE OFFENDER'S BELIEF FOR PERCEPTION REGARDING THE
RACE, COLOR, ETHNICITY, NATIONAL ORIGIN, ANCESTRY, RELIGION, GENDER, SEXUAL
ORIENTATION, OR DISABILITY OF THAT PERSON OR THE OWNER OR OCCUPANT OF THAT
PROPERTY, WHETHER OR NOT THE ACTOR'S BELIEF OR PERCEPTION WAS CORRECT.-SHORT
TITLE
01/14/97 Senate Introduced and read first time SJ-96
01/14/97 Senate Referred to Committee on Judiciary SJ-96
A BILL
TO AMEND CHAPTER 1, TITLE 16 OF THE CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO FELONIES AND
MISDEMEANORS, BY ADDING SECTION 16-1-130 SO AS TO
PROVIDE FOR AN INCREASE IN THE PENALTY FOR AN
UNDERLYING OFFENSE IF THE OFFENDER
INTENTIONALLY SELECTS THE PERSON AGAINST WHOM
THE CRIME IS COMMITTED OR SELECTS THE PROPERTY
THAT IS DAMAGED OR OTHERWISE AFFECTED BY THE
CRIME IN WHOLE OR IN PART BECAUSE OF THE
OFFENDER'S BELIEF OR PERCEPTION REGARDING THE
RACE, COLOR, ETHNICITY, NATIONAL ORIGIN, ANCESTRY,
RELIGION, GENDER, SEXUAL ORIENTATION, OR
DISABILITY OF THAT PERSON OR THE OWNER OR
OCCUPANT OF THAT PROPERTY, WHETHER OR NOT THE
ACTOR'S BELIEF OR PERCEPTION WAS CORRECT; TO
AMEND SECTION 16-3-20, AS AMENDED, RELATING TO THE
PUNISHMENT FOR MURDER, SO AS TO ADD AS A
STATUTORY AGGRAVATING CIRCUMSTANCE A MURDER
IN WHICH THE OFFENDER INTENTIONALLY SELECTED THE
MURDERED PERSON IN WHOLE OR IN PART BECAUSE OF
THE OFFENDER'S BELIEF OR PERCEPTION REGARDING THE
RACE, COLOR, ETHNICITY, NATIONAL ORIGIN, ANCESTRY,
RELIGION, GENDER, SEXUAL ORIENTATION, OR
DISABILITY OF THE MURDERED PERSON, WHETHER OR
NOT THE OFFENDER'S BELIEF OR PERCEPTION WAS
CORRECT; TO AMEND SECTION 20-7-7805, RELATING TO
DISPOSITIONAL POWERS OF THE FAMILY COURT
REGARDING CHILDREN ADJUDICATED DELINQUENT, SO
AS TO AUTHORIZE THE COURT TO MAKE FINDINGS THAT
A CHILD INTENTIONALLY SELECTED THE PERSON
AGAINST WHOM AN OFFENSE IS COMMITTED OR
SELECTED THE PROPERTY THAT IS DAMAGED OR
OTHERWISE AFFECTED BY THE OFFENSE IN WHOLE OR IN
PART BECAUSE OF THE CHILD'S BELIEF OR PERCEPTION
REGARDING THE RACE, COLOR, ETHNICITY, NATIONAL
ORIGIN, ANCESTRY, RELIGION, GENDER, SEXUAL
ORIENTATION, OR DISABILITY OF THAT PERSON OR THE
OWNER OR OCCUPANT OF THAT PROPERTY, WHETHER OR
NOT THE CHILD'S BELIEF OR PERCEPTION WAS CORRECT
AND ORDER A CHILD FOR WHOM SUCH FINDINGS ARE
MADE, AS A CONDITION OF PROBATION, COMMITMENT
OR OTHERWISE, TO PARTICIPATE IN AN EDUCATIONAL
PROGRAM REGARDING CULTURAL DIVERSITY; TO
AMEND ARTICLE 1, CHAPTER 3, TITLE 23, RELATING TO
THE STATE LAW ENFORCEMENT DIVISION, BY ADDING
SECTION 23-3-125 SO AS TO ESTABLISH A HATE CRIME
RECORDS REPOSITORY; AND TO AMEND CHAPTER 3,
TITLE 13, RELATING TO LAW ENFORCEMENT AND PUBLIC
SAFETY, BY ADDING ARTICLE 11, THE "HATE CRIME
OFFENDER REGISTRY."
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. This act shall be cited as the "Hate Crime
Penalty Enhancement Act."
SECTION 2. Chapter 1, Title 16 of the 1976 Code is amended by
adding:
"Section 16-1-130. (A) If a person does all of the following,
the penalties for the underlying crime are increased as provided in
subsection (B):
(1) commits a crime classified or exempted under Section
16-1-10;
(2) intentionally selects the person against whom the crime
under item (1) is committed or selects the property that is damaged
or otherwise affected by the crime under item (1) in whole or in part
because of the offender's belief or perception regarding the race,
color, ethnicity, national origin, ancestry, religion, gender, sexual
orientation, or disability of that person or the owner or occupant of
that property, whether or not the offender's belief or perception was
correct.
(B)(1) If the crime committed under subsection (A)(1) is ordinarily
a felony, the maximum period of imprisonment provided for the
offense must be increased by five years. Five years of any sentence
imposed under this item may not be suspended nor may probation be
granted.
(2) If the crime committed under subsection (A)(1) is ordinarily
a Class A misdemeanor, the status of the crime changes to a felony
and the maximum period of imprisonment provided for the offense
must be increased to five years. Three years of any sentence imposed
under this item may not be suspended nor may probation be granted.
(3) If the crime committed under subsection (A)(1) is ordinarily
a misdemeanor other than a Class A misdemeanor, the maximum
period of imprisonment provided for the offense must be increased
to three years. One year of any sentence imposed under this item
may not be suspended nor may probation be granted.
(C) This section provides for the enhancement of the penalties
applicable for the underlying crime. The court shall direct that the
trier of fact find a special verdict as to all of the issues specified in
subsection (A).
(D) This section does not apply to any crime if proof of race, color,
national origin or ancestry or proof of any person's belief or
perception regarding another person's race, color, ethnicity, national
origin, ancestry, religion, gender, sexual orientation, or disability is
required for a conviction for that crime."
SECTION 3. Section 16-3-20(C)(a) of the 1976 Code, as last
amended by Act 317 of 1996, is further amended to read:
"(C) The judge shall consider, or he shall include in his
instructions to the jury for it to consider, mitigating circumstances
otherwise authorized or allowed by law and the following statutory
aggravating and mitigating circumstances which may be supported
by the evidence:
(a) Statutory aggravating circumstances:
(1) The murder was committed while in the commission of
the following crimes or acts:
(a) criminal sexual conduct in any degree;
(b) kidnapping;
(c) burglary in any degree;
(d) robbery while armed with a deadly weapon;
(e) larceny with use of a deadly weapon;
(f) killing by poison;
(g) drug trafficking as defined in Sections 44-53-370(e),
44-53-375(B), 44-53-440, or 44-53-445;
(h) physical torture; or
(i) dismemberment of a person.
(2) The murder was committed by a person with a prior
conviction for murder.
(3) The offender by his act of murder knowingly created a
great risk of death to more than one person in a public place by
means of a weapon or device which normally would be hazardous to
the lives of more than one person.
(4) The offender committed the murder for himself or another
for the purpose of receiving money or a thing of monetary value.
(5) The murder of a judicial officer, former judicial officer,
solicitor, former solicitor, or other officer of the court during or
because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder
or committed murder as an agent or employee of another person.
(7) The murder of a federal, state, or local law enforcement
officer, peace officer or former peace officer, corrections employee
or former corrections employee, or fireman or former fireman during
or because of the performance of his official duties.
(8) The murder of a family member of an official listed in
subitems (5) and (7) above with the intent to impede or retaliate
against the official. `Family member' means a spouse, parent,
brother, sister, child, or person to whom the official stands in the
place of a parent or a person living in the official's household and
related to him by blood or marriage.
(9) Two or more persons were murdered by the defendant by
one act or pursuant to one scheme or course of conduct.
(10) The murder of a child eleven years of age or under.
(11) The murder of a witness or potential witness committed
at any time during the criminal process for the purpose of impeding
or deterring prosecution of any crime.
(12) The offender intentionally selected the murdered
person in whole or in part because of the offender's belief or
perception regarding the race, color, ethnicity, national origin,
ancestry, religion, gender, sexual orientation, or disability of the
murdered person, whether or not the offender's belief or perception
was correct."
SECTION 4. Section 20-7-7805(A) of the 1976 Code , as added
by Act 383 of 1996, is amended by adding an appropriately
numbered item to read:
"( ) make findings that a child intentionally selected the person
against whom an offense is committed or selected the property that
is damaged or otherwise affected by the offense in whole or in part
because of the child's belief or perception regarding the race, color,
ethnicity, national origin, ancestry, religion, gender, sexual
orientation, or disability of that person or the owner or occupant of
that property, whether or not the child's belief or perception was
correct and order a child for whom such findings are made to
participate in an educational program regarding cultural diversity ."
SECTION 5. Article 1, Chapter 3, Title 23 of the 1976 Code is
amended by adding:
"Section 23-3-125. (A) The State Law Enforcement Division
(SLED) shall establish and maintain a central repository for the
collection and analysis of information regarding crimes where the
victims are intentionally selected by reason of their actual or
perceived race, color, ethnicity, national origin, ancestry, religion,
gender, sexual orientation, or disability.
Upon establishing such a repository, SLED shall promulgate
regulations providing a procedure to monitor, record, classify, and
analyze information relating to crimes apparently directed against
individuals or groups, or their property, by reason of their actual or
perceived race, color, ethnicity, national origin, ancestry, religion,
gender, sexual orientation, or disability.
(B) All local law enforcement agencies shall report monthly to
SLED concerning such offenses in such form and in such manner as
prescribed by rules and regulations adopted by SLED. SLED must
summarize and analyze the information received and file an annual
report with the Governor, the House and Senate Judiciary
Committees, and with the Federal Bureau of Investigation, as
detailed in the federal Hate Crime Statistics Act.
(C) Any information, records, and statistics collected in accordance
with this subsection shall be available for use by any local
enforcement agency, unit of local government, or state agency, to the
extent that such information is reasonably necessary or useful to such
agency in carrying out the duties imposed upon it by law.
Dissemination of such information shall be subject to all
confidentiality requirements otherwise imposed by law.
(D) SLED shall provide training for police officers in identifying,
responding to, and reporting all criminal offenses motivated by race,
color, ethnicity, national origin, ancestry, religion, gender, sexual
orientation, or disability."
SECTION 6. Chapter 3, Title 23 of the 1976 Code is amended by
adding:
"Article 11
Hate Crime Offender Registry
Section 23-3-800. The intent of this article is to promote the state's
fundamental right to provide for public health, welfare, and safety of
its citizens. Notwithstanding this legitimate state purpose, these
provisions are not intended to violate the guaranteed constitutional
rights of those who have violated our nation's laws.
The hate crime offender registry will provide law enforcement with
the tools needed in investigating criminal offenses. Additionally, law
enforcement's efforts to protect communities, conduct investigations,
and apprehend offenders who commit hate crimes, are impaired by
the lack of information about these convicted offenders who live
within the law enforcement agency's jurisdiction.
Section 23-3-810. The registry is under the direction of the chief
of the State Law Enforcement Division (SLED) and shall contain
information the chief considers necessary to assist law enforcement
in the location of persons convicted of certain offenses. SLED shall
develop and operate the registry to collect, analyze, and maintain
information, to make information available to every enforcement
agency in this State and in other states, and to establish a security
system to ensure that only authorized persons may gain access to
information gathered under this article.
Section 23-3-820. The State Law Enforcement Division shall
promulgate regulations to implement the provisions of this article.
Section 23-3-830. (A) For purposes of this article, the term
`offender' means any person residing in the State of South Carolina
who has been convicted in this State, a comparable court in the
United States, or in the United States federal courts, of an offense
for which the sentence is enhanced pursuant to Section 16-1-130 or
a similar provision from another jurisdiction. An offender must
register pursuant to the provisions of this article.
(C) For purposes of this article, the term `resident' means any
person who remains in this State for a total of thirty days during a
twelve-month period.
(D) For purposes of this article, the term `conviction' also includes
a plea or guilty or nolo contendere.
(E) Upon conviction in this State of an offense for which the
sentence is not enhanced pursuant to Section 16-1-130, the presiding
judge may order as a condition of sentencing that the person be
included in the hate crime offender registry if good cause is shown by
the solicitor.
Section 23-3-840. (1) Prior to an offender's release from the
Department of Corrections after completion of the term of
imprisonment, or being placed on parole or community supervision,
the Department of Corrections or the Department of Probation,
Parole, and Pardon Services, as applicable, shall notify the sheriff of
the county where the offender intends to reside and SLED that the
offender is being released and has provided an address within the
jurisdiction of the sheriff for that county. The Department of
Corrections shall provide verbal and written notification to the
offender that he must register with the sheriff of the county in which
he intends to reside within twenty-four hours of his release. Further,
the Department of Corrections shall obtain descriptive information of
the offender, including a current photograph prior to release.
(2) The Department of Probation, Parole, and Pardon Services
shall notify SLED and the sheriff of the county where an offender is
residing when the offender is sentenced to probation or is a new
resident of the State who must be supervised by the department. The
Department of Probation, Parole, and Pardon Services also shall
provide verbal and written notification to the offender that he must
register with the sheriff of the county in which he intends to reside.
An offender who is sentenced to probation must register within ten
days of sentencing. Further, the Department of Probation, Parole,
and Pardon Services shall obtain descriptive information of the
offender, including a current photograph that is to be updated
annually prior to expiration of the probation sentence.
(3) The Department of Corrections and the Department of
Probation, Parole, and Pardon Services shall provide to SLED the
initial registry information regarding the offender prior to his release
from imprisonment or relief of supervision. This information shall
be collected in the event the offender fails to register with his county
sheriff.
Section 23-3-850. The offender shall register with the sheriff of the
county in which he resides. To register, the offender must provide
information as prescribed by SLED. The county sheriff shall then
forward to SLED the registry information and any updated
information regarding the offender. A copy of this information must
be kept by the sheriff's department. The county sheriff shall ensure
that all information required by SLED is secured and shall establish
specific times of the day during which an offender may register. An
offender shall not be considered to have registered until all
information prescribed by SLED has been obtained.
Section 23-3-860. Any person required to register under this article
shall be required to register annually for a period of life. The
offender shall register at the sheriff's department in the county where
he resides.
If any person required to register under this article changes his
address within the same county, that person must send written notice
of the change of address to the county sheriff within ten days of
establishing the new residence.
If any person required to register under this article changes his
address into another county in South Carolina, the person must
register with the county sheriff in the new county within ten days of
establishing the new residence. The person must also provide written
notice within ten days of the change of address in the previous county
to the county sheriff with whom the person last registered.
If any person required to register under this article moves outside
of South Carolina, the person must provide written notice within ten
days of the change of address to a new state to the county sheriff with
whom the person last registered.
Any person required to register under this article who moves to
South Carolina from another state and is not under the jurisdiction of
the Department of Corrections or the Department of Probation,
Parole, and Pardon Services must register within sixty days of
establishing residence in this State.
The South Carolina Department of Public Safety, Division of Motor
Vehicles, shall inform, in writing, any new resident who applies for
a driver's license, a chauffeur's license, vehicle tag, or a state
identification card of the obligation of those offenders to register.
Section 23-3-870. (A) It is the duty of the offender to contact the
sheriff in order to register. If an offender fails to register as required
by this article, he must be punished as provided in subsection (B).
(B)(1) A person convicted for a first offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of
ninety days, no part of which shall be suspended nor probation
granted.
(2) A person convicted for a second offense is guilty f a
misdemeanor and must be imprisoned for a mandatory period of one
year, no part of which shall be suspended nor probation granted.
(3) A person convicted for a third or subsequent offense is
guilty of a felony and must be imprisoned for a mandatory period of
five years, three years of which shall not be suspended nor probation
granted.
Section 23-3-880. (A) Anyone who knowingly and wilfully gives
false information when registering as an offender pursuant to this
article must be punished as provided in subsection (B).
(B)(1) A person convicted for a first offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of
ninety days, no part of which shall be suspended nor probation
granted.
(2) A person convicted for a second offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of one
year, no part of which shall be suspended nor probation granted.
(3) A person convicted for a third or subsequent offense is
guilty of a felony and must be imprisoned for a mandatory period of
five years, three years of which shall not be suspended nor probation
granted.
Section 23-3-890. (A) An arrest on charges of failure to register,
service of an information or complaint for failure to register, or
arraignment on charges of failure to register, constitutes actual notice
of the duty to register. A person charged with the crime of failure to
register who asserts as a defense the lack of notice of the duty to
register shall register immediately following actual notice through
arrest, service, or arraignment. Failure to register after notice as
required by this article constitutes grounds for filing another charge
of failure to register. Registering following arrest, service, or
arraignment on charges does not relieve the offender from the
criminal penalty for failure to register before the filing of the original
charge.
(B) Section 23-3-870 shall not apply to a person convicted of an
offense provided in Section 23-3-820 prior to July 1, 1997, and who
was released from custody prior to July 1, 1997, unless the person has
been served notice of the duty to register by the sheriff of the county
in which the person resides. This person shall register within ten
days of the notification of the duty to register.
Section 23-3-900. (A) Information collected for the offender
registry is open to public inspection, upon request to the county
sheriff. A sheriff must release information regarding a specific
person who is required to register under this article to a member of
the public if the request is made in writing, stating the name of the
person requesting the information, and the name or address of the
person about whom the information is sought. The information must
be disclosed only to the person making the request. The sheriff must
provide the person making the request with the full name of the
offender, any aliases, the date of birth, a current home address, the
offense for which the offender was required to register pursuant to
Section 23-3-830, and the date, city, and state of conviction. A
photocopy of a current photograph must also be provided. The
provisions of this article do not authorize SLED to release
information to the public unless a request is made in writing stating
the name of the person making the request and the name of the person
about whom information is sought. SLED is only authorized to
release to the public the name of the county in which the offender is
registered. Otherwise, SLED is not authorized to release any
information contained in the registry to anyone other than law
enforcement agencies, investigative agencies, and those agencies
authorized by the court.
(B) Nothing in subsection (A) prohibits a sheriff from
disseminating information contained in that subsection regarding a
specific person who is required to register under this article if the
sheriff or another law enforcement officer is presented with facts
giving rise to a reasonable suspicion of criminal activity and has
reason to believe the release of this information will deter the
criminal activity."
SECTION 7. If any provision of this act or the application thereof
to any person is held invalid, the invalidity shall not affect other
provisions or applications of the act which can be given effect
without the invalid provision or application and to this end the
provisions of this act are severable.
SECTION 8. This act takes effect upon approval by the Governor.
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