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.

Successes at the state capitol

Yesterday I referenced the recently completed spring session of our state legislature, which came to a close last Friday. We had a few successes and no defeats over the last month that are worth reporting.

Most significant, on June 27, the PA House passed House Bill 2537, a bill blocking the Commonwealth from seeking certification in Real ID, by a unanimous vote. The day of the vote, I talked with a reporter who started the interview by saying, "You're not going to call it a real nightmare, are you?" Clearly, our branding of Real ID had sunk in.

One of the more surreal moments of my ACLU career came during this debate. Rep. Sam Rohrer (R-Berks County) introduced an amendment to block PA from participating in any federal law that requires the collection of biometric data. Rep. Rohrer, one of the most conservative members of the legislature, and Rep. Babette Josephs (D-Philadelphia), one of the most liberal members of the legislature, argued on the floor about who had the support of the ACLU. (For the record, we neither supported nor opposed the Rohrer amendment. We supported HB 2537 with or without the amendment.)

Now it's on to the Senate. If this bill were signed today, PA would become the 11th and largest state to opt out of Real ID, a crumbling federal program.

But that wasn't our only task at the capitol in the last few weeks. We also beat back a proposal I took to calling The Illegal Clothing Act of 2008, an amendment that would turn "criminal gang activity" into a criminal offense, as if the existing criminal conspiracy laws aren't enough. And how would law enforcement identify a criminal gang member, according to this amendment? The clothes he wears. Where he lives or spends time. Photographs (of what, exactly, we don't know). This idea was so bad we could call it the Fund the ACLU Act. If it ever became law, we would likely litigate against it and we would likely win. Here's our memo to the House on this issue (PDF).

This inane idea died without ever coming to a vote, but we expect to see it back in the form of legislation since the amendment was based on a bill that was introduced this session. Fittingly, in the midst of that work, Penn State released the results of research showing that investment by the PA Commission on Crime and Delinquency in juvenile crime prevention and intervention programs saved the Commonwealth more than $300 million dollars, money that otherwise would have been spent on court costs, incarceration, law enforcement, etc. That study is available here (PDF).

With the General Assembly now on break until after Labor Day, they can do no harm to civil liberties.

Andy in Harrisburg