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Senate committee passes bill on gang recruitment

Messenger-Inquirer - 3/15/2017

March 15--A bill that would stiffen penalties for people involved in gang activity, while enhancing penalties for people who recruit others into gangs, passed a state Senate committee Tuesday morning.

House Bill 315 was approved, with the bill's sponsor saying the state's "outdated" laws regarding gang activity stem back to the Prohibition era and need modernizing.

"Gang violence hits every portion of our commonwealth," said Rep. Robert Benvenuti III, a Lexington Republican.

The bill creates the criminal penalty of first-degree, second-degree and third-degree criminal gang recruitment. First- and second-degree gang recruitment would be class C and class D felonies, respectively, and third-degree gang recruitment would be a class A misdemeanor on the first offense and a felony on the second offense.

"We have children as young as 10 years old being recruited into gangs," Benvenuti told the Senate Judiciary Committee. While gangs promise children a replacement family, "that promise leads to incarceration or the morgue," he said.

The bill considers a "criminal gang" three or more people with colors, symbols or other identification who are engaged in a "pattern of criminal activity." The gang would also be recognized as such by the state, or in another state.

In addition to creating penalties for gang recruitment, the bill also enhances penalties if a jury finds the offender was participating in gang activity while committing a misdemeanor, such as fourth-degree assault, terroristic threatening, menacing, criminal mischief and resisting arrest, among others. If so, the person must serve a mandatory minimum sentence, ranging from 76 days to 365 days, depending on the classification of the misdemeanor.

A person convicted of a felony who a jury determines was engaged in gang activity would have their felony enhanced one level, such as from a D felony to a C felony, and would have to serve 85 percent of his or her sentence before becoming eligible for parole. A penalty could not be enhanced to a capital offense.

A jury would hear evidence to determine a defendant's gang involvement after it had first determined the person was guilty of the underlying offense. Gang involvement would have to be proven beyond a reasonable doubt.

"I'm not offended ... but setting high standards to prove the gang," Benvenuti said. "We just have to set realistic standards."

Sgt. Jason Rothermund, a Lexington police officer, said the bill is aimed at gang recruiters who force youth into gangs.

"It's directly meant to impact the predators and not the prey," Rothermund said.

Sen. John Schickel, a Union Republican, said gangs are a problem in some areas of the state.

"I think we're much in a sense of denial about it," Schickel said. "I'm glad to see a bill that wants to face this problem head-on. ... This is exactly the type of legislation we need."

Benvenuti said the bill was modeled after a California law "that has been challenged unsuccessfully numerous times."

Rebecca Ballard DiLoreto, a legislative agent for the Kentucky Association of Criminal Defense Lawyers, said criminal gang recruitment is already a class D felony in Kentucky. While the bill is directed at gang recruiters, the bill "goes beyond that," she said.

"We have a great deal of concern regarding the enhancement of offenses from one level to another," DiLoreto said. If a juvenile was transferred to the adult court system and is convicted of gang activity, "they'll have very little incentive to get engaged" in jail programs that could help them, and would be ineligible for certain programs because of the 85 percent sentence requirement, DiLoreto said.

"We're going to simply create a lot more hopelessness," DiLoreto said, and was concerned the bill would have a disproportionate impact.

The NAACP is concerned "this type of law ... has a radically disparate impact on communities of color," DiLoreto said. With the enhanced penalties in the bill "you're going to tear apart the fabric of our communities," she said.

Benvenuti said the bill is necessary.

"Folks who are currently incarcerated who were in a gang ... have spoken on the need for a bill like this (so gang recruiters) are not preying on the innocent," Benvenuti said.

Senate President Robert Stivers II, a Manchester Republican, said the bill could impact counties by increasing the time a person with a class A or Class B misdemeanor is held in county jails.

Committee Chairman Sen. Whitney Westerfield, a Hopkinsville Republican, said the bill could save counties money by having fewer crime victims that need services.

The bill passed, which sends it on to the full Senate. The bill has already passed the House.

"I do think this is important legislation. I think we need it," Westerfield said. "But I do take seriously some of the issues (DiLoreto) just brought up ... I don't want this to be something that is abused, or have a disparate impact."

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

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