MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary

By: Senator(s) Hall

AN ACT TO AMEND SECTIONS 99-19-301, 99-19-305 AND 99-19-307, MISSISSIPPI CODE OF 1972, TO INCLUDE GANG CRIMINAL ACTIVITIES INCLUDING GANG INITIATION CRIMES AS A HATE CRIME SUBJECT TO ENHANCEMENT OF PENALTIES; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 99-19-301, Mississippi Code of 1972, is amended as follows:

99-19-301. (1) The following terms shall have the meanings ascribed to them herein unless the context requires otherwise:

(a) "Street gang" means an association of two (2) or more individuals, the purpose of whose association is the generation of income through continuing criminal enterprise.

(b) "Violent street gang drug enterprise" means a criminal enterprise involving the use, sale or distribution of drugs and having an organizational structure acting as a continuing criminal conspiracy which employs violence and any other criminal activity to sustain the enterprise.

(c) "Hate crime" means any felony or misdemeanor committed by any person who is a member of a street gang or violent street gang drug enterprise either as a part of the initiation of the person into the gang or gang enterprise or as a part of the criminal activities of the members of the street gang or violent street gang drug enterprise, or which is committed because of the actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender of the victim.

(2) The penalty for any felony or misdemeanor shall be subject to enhancement as provided in Sections 99-19-301 through 99-19-307 if the felony or misdemeanor was * * * a hate crime.

SECTION 2. Section 99-19-305, Mississippi Code of 1972, is amended as follows:

99-19-305. (1) Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought as provided in Sections 99-19-301 through 99-19-307, the court shall conduct a separate sentencing proceeding to determine the sentence. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge shall summon a jury to determine whether an enhanced penalty should be imposed. If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. Provided, however, that if the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Mississippi. The state and the defendant or his counsel or both defendant and counsel shall be permitted to present arguments for or against any sentence sought.

(2) In order to impose an enhanced penalty under the provisions of Sections 99-19-301 through 99-19-307, the jury must find beyond a reasonable doubt:

(a)(i) That the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; * * *

(ii) That the defendant maliciously and with specific intent committed the offense because the victim was within the class delineated; and

(iii) That the victim was within the class delineated means that the reason the underlying crime was committed was the victim's actual or perceived race, color, religion, ethnicity, ancestry, national origin or gender; or

(b) That the felony or misdemeanor was committed by a person who was a member of a street gang or violent street gang drug enterprise either as a part of the initiation of the person into the gang or gang enterprise or as a part of the criminal activities of the members of the street gang or violent street gang drug enterprise.

SECTION 3. Section 99-19-307, Mississippi Code of 1972, is amended as follows:

99-19-307. In the event sufficient elements under Section 99-19-305 are found beyond a reasonable doubt to have been elements of the offense, then the penalty for the offense may be enhanced by punishment for a term of imprisonment of up to twice that authorized by law for the offense committed, or a fine of up to twice that authorized by law for the offense committed, or both.

SECTION 4. This act shall take effect and be in force from and after July 1, 1998.