South Carolina General Assembly
113th Session, 1999-2000

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Bill 45


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COMMITTEE REPORT

February 10, 1999

S. 45

Introduced by Senators Jackson, Elliott, Glover and Washington

S. Printed 2/10/99--S.

Read the first time January 12, 1999.

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (S. 45), to amend Chapter 1, Title 16 of the Code of Laws of South Carolina, 1976, relating to felonies and misdemeanors, etc., respectfully

REPORT:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, page 2, line 35, in Section 16-1-130(A)(1), as contained in SECTION 2, by inserting after /16-1-10/ the following: / or commits a common law crime /.

Amend the bill further, as and if amended, page 5, line 39, in Section 23-3-125(C), as contained in SECTION 5, by inserting after /local/ the word: / law /.

Amend the bill further, as and if amended, page 6, line 1, in Section 23-3-125(D), as contained in SECTION 5, by striking the word /SLED/ and inserting therein the following:

/ The Criminal Justice Academy Division of the Department of Public Safety /.

Amend the bill further, as and if amended, page 6, beginning on line 6, by striking SECTION 6 in its entirety.

Renumber sections to conform.

Amend title to conform.

Majority favorable. Minority unfavorable.

HOLLY A. CORK LARRY A. MARTIN

For Majority. For Minority.

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 of 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 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 23-3-880. (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, 1999, and who was released from custody prior to July 1, 1999, 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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