State Senate makes subtle but important change to gang legislation

Yesterday the Pennsylvania Senate quietly amended a piece of legislation that illustrated how effective the ACLU of Pennsylvania can be at the state legislature.

House Bill 1121 creates a new offense of "recruiting criminal gang members" and tasks the Commission on Sentencing with creating a sentencing enhancement for a person convicted of committing a crime of violence on behalf of a gang. This bill had numerous civil liberties problems, including First Amendment issues, too much potential for discrimination, and its impact on prison crowding. We said as much in a memo (pdf) sent to the Senate Judiciary Committee and the House Judiciary Committee last week.

When the bill left the Senate Judiciary Committee last week, HB 1121 defined a "criminal street gang" like this:

"A FORMAL OR INFORMAL ONGOING ORGANIZATION,
ASSOCIATION OR GROUP, WITH OR WITHOUT AN ESTABLISHED HIERARCHY,
THAT HAS AS ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF
CRIMINAL OR DELINQUENT ACTS AND THAT CONSISTS OF THREE OR MORE PERSONS WHO HAVE A COMMON NAME OR COMMON IDENTIFYING SIGNS, COLORS OR SYMBOLS THAT LAW ENFORCEMENT PERSONNEL USE TO IDENTIFY THE GROUPS OR SUBGROUPS."

This screams, "First Amendment." Criminalizing "signs, colors or symbols" is problematic and giving law enforcement the power to determine what is and is not illegal gives the executive branch entirely too much power.

When HB 1121 left the Senate Appropriations Committee on Tuesday, that definition had been amended. It now says:

"A FORMAL OR INFORMAL ONGOING ORGANIZATION ,
ASSOCIATION OR GROUP, WITH OR WITHOUT AN ESTABLISHED HIERARCHY,
THAT HAS AS ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF
CRIMINAL OR DELINQUENT ACTS AND THAT CONSISTS OF THREE OR MORE PERSONS."

Note the deletion of the "signs, colors or symbols" language. This is important. This change will keep people from getting rung up under this law for wearing the wrong colored shirt. And, although it doesn't eliminate this danger altogether, it lessens the ability of law enforcement to use arbitrary criteria against young men of color.

I tweeted about this and a few other issues in the cheeky way that occasionally gets me in trouble at the legislature, so I want to give a tip of the hat to the state Senate for altering this bill in this way.

Don't get me wrong, this bill still has problems. There is a risk of it being used disproportionately against young black and brown men, and it has the potential to add to the slow drip that leads to a bursting prison system.

We can't stop this bill, though. It's being pushed by the Senate Majority Leader. But sometimes at the state capitol we take our wins where we get them. Sometimes we're grateful that we get important alterations to bills, grateful that someone listened, and live for the next debate.

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