MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary, Division B
By: Senator(s) Wiggins
AN ACT TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT KNOWING SOLICITATION OF A CHILD TO VIOLATE THE UNIFORM CONTROLLED SUBSTANCE LAW OR TO PARTICIPATE IN GANGS OR GANG-RELATED ACTIVITIES CONSTITUTES CONTRIBUTING TO THE DELINQUENCY OF A MINOR; TO AMEND SECTION 97-44-1, MISSISSIPPI CODE OF 1972, TO REVISE THE SHORT TITLE OF THE MISSISSIPPI STREETGANG ACT; TO AMEND SECTION 97-44-3, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 97-44-19, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES FOR CRIMINAL GANG ACTIVITY; TO CREATE SECTION 97-44-21, MISSISSIPPI CODE OF 1972, TO RECODIFY THE EXISTING EVIDENTIARY STANDARDS FOR PROSECUTION UNDER THIS ACT; TO AMEND SECTION 97-3-2, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF VIOLENT CRIME TO INCLUDE VIOLATIONS OF THE MISSISSIPPI GANG ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-5-39, Mississippi Code of 1972, is amended as follows:
97-5-39. (1) (a) Except as otherwise provided in this section, any parent, guardian or other person who intentionally, knowingly or recklessly commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child or which act or omission results in the abuse of any child, as defined in Section 43-21-105(m) of the Youth Court Law, or who knowingly aids any child in escaping or absenting himself from the guardianship or custody of any person, agency or institution, or knowingly harbors or conceals, or aids in harboring or concealing, any child who has absented himself without permission from the guardianship or custody of any person, agency or institution to which the child shall have been committed by the youth court, or knowingly entices, solicits, coerces, encourages or intimidates any child to violate the Uniform Controlled Substances Law, or knowingly entices, solicits, coerces, encourages or intimidates any child to participate in gang or gang-related activities shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.
(b) For the purpose of this section, a child is a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services, or who is married, is not considered a child for the purposes of this statute.
(c) If a child commits one (1) of the proscribed acts in subsection (2)(a), (b) or (c) of this section upon another child, then original jurisdiction of all such offenses shall be in youth court.
(d) If the child's deprivation of necessary clothing, shelter, health care or supervision appropriate to the child's age results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment in the custody of the Department of Corrections for not more than five (5) years or to payment of a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(e) A parent, legal guardian or other person who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment in the custody of the Department of Corrections for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(2) Any person shall be guilty of felonious child abuse in the following circumstances:
(a) Whether bodily harm results or not, if the person shall intentionally, knowingly or recklessly:
(i) Burn any child;
(ii) Physically torture any child;
(iii) Strangle, choke, smother or in any way interfere with any child's breathing;
(iv) Poison a child;
(v) Starve a child of nourishments needed to sustain life or growth;
(vi) Use any type
of deadly weapon upon any child * * *.
(b) If some bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Throw, kick, bite, or cut any child;
(ii) Strike a child under the age of fourteen (14) about the face or head with a closed fist;
(iii) Strike a child under the age of five (5) in the face or head;
(iv) Kick, bite,
cut or strike a child's genitals; circumcision of a male child is not a
violation under this subparagraph (iv) * * *.
(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Strike any child on the face or head;
(ii) Disfigure or scar any child;
(iii) Whip, strike
or otherwise abuse any child * * *.
(d) Any person, upon conviction under paragraph (a) or (c) of this subsection, shall be sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of not less than five (5) years and up to life, as determined by the court. Any person, upon conviction under paragraph (b) of this subsection shall be sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of not less than two (2) years nor more than ten (10) years, as determined by the court. For any second or subsequent conviction under this subsection (2), the person shall be sentenced to imprisonment for life.
(e) For the purposes of this subsection (2), "bodily harm" means any bodily injury to a child and includes, but is not limited to, bruising, bleeding, lacerations, soft tissue swelling, and external or internal swelling of any body organ.
(f) For the purposes of this subsection (2), "serious bodily harm" means any serious bodily injury to a child and includes, but is not limited to, the fracture of a bone, permanent disfigurement, permanent scarring, or any internal bleeding or internal trauma to any organ, any brain damage, any injury to the eye or ear of a child or other vital organ, and impairment of any bodily function.
(g) Nothing contained in paragraph (c) of this subsection shall preclude a parent or guardian from disciplining a child of that parent or guardian, or shall preclude a person in loco parentis to a child from disciplining that child, if done in a reasonable manner, and reasonable corporal punishment or reasonable discipline as to that parent or guardian's child or child to whom a person stands in loco parentis shall be a defense to any violation charged under paragraph (c) of this subsection.
(h) Reasonable discipline and reasonable corporal punishment shall not be a defense to acts described in paragraphs (a) and (b) of this subsection or if a child suffers serious bodily harm as a result of any act prohibited under paragraph (c) of this subsection.
(3) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(4) (a) A parent, legal guardian or caretaker who endangers a child's person or health by knowingly causing or permitting the child to be present where any person is selling, manufacturing or possessing immediate precursors or chemical substances with intent to manufacture, sell or possess a controlled substance, as prohibited under Section 41-29-139 or 41-29-313, is guilty of child endangerment and may be sentenced to imprisonment for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(b) If the endangerment results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment for not more than twenty (20) years or to payment of a fine of not more than Twenty Thousand Dollars ($20,000.00), or both.
(5) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(6) After consultation with the Department of Human Services, a regional mental health center or an appropriate professional person, a judge may suspend imposition or execution of a sentence provided in subsections (1) and (2) of this section and in lieu thereof require treatment over a specified period of time at any approved public or private treatment facility. A person may be eligible for treatment in lieu of criminal penalties no more than one (1) time.
(7) In any proceeding resulting from a report made pursuant to Section 43-21-353 of the Youth Court Law, the testimony of the physician making the report regarding the child's injuries or condition or cause thereof shall not be excluded on the ground that the physician's testimony violates the physician-patient privilege or similar privilege or rule against disclosure. The physician's report shall not be considered as evidence unless introduced as an exhibit to his testimony.
(8) Any criminal prosecution arising from a violation of this section shall be tried in the circuit, county, justice or municipal court having jurisdiction; provided, however, that nothing herein shall abridge or dilute the contempt powers of the youth court.
SECTION 2. Section 97-44-1, Mississippi Code of 1972, is amended as follows:
97-44-1. This chapter shall
be known as the "Mississippi * * * Gang Act."
SECTION 3. Section 97-44-3, Mississippi Code of 1972, is amended as follows:
97-44-3. For the purposes
of this chapter, the following words and phrases shall have the meanings
ascribed * * *:
(a)
"Streetgang" or "gang" or "organized gang" or
"criminal streetgang" means * * *
an association of three (3) or more persons whose members are involved in
criminal gang activity and who collectively identify themselves by adopting a
group identity by employing one or more of the following:
(i) A common name, slogan, identifying sign, symbol, tattoo or other physical marking;
(ii) Style or color of clothing or hairstyle;
(iii) Hand sign, hand gesture or finger position; or
(iv) Graffiti.
The terms "gang," "streetgang," "organized gang" or "criminal streetgang" do not include any group of persons, associated in law or in fact, who are not engaged in criminal gang activity, to a sports team, or to a group who are associated through a legally created business or charitable entity created under Mississippi law, except for those instances where the State of Mississippi has proof beyond a reasonable doubt that the sports team, legally created business or charitable entity is a pretext for criminal gang activity.
* * *
(b) "Public
authority" means the state and political subdivisions as defined in
Section 11-46-1 * * *.
(c) "Streetgang
member" or "gang member" means any person who actually and in
fact belongs to a gang, and any person who knowingly acts in the capacity of an
agent for or accessory to, or is legally accountable for, or voluntarily
associates himself with * * * a gang‑related criminal gang activity, whether
in a preparatory, executory or cover-up phase of any criminal gang
activity, or who knowingly performs, aids or abets * * * criminal gang activity.
(d) * * *
"Criminal gang activity" or "streetgang-related
activity" or "gang-related activity" or "criminal gang
activity" means * * *:
(i) The commission, attempted commission or conspiracy to commit, or the solicitation, coercion, encouragement or intimidation of another person to commit an act or acts in this or another state that would constitute a felony offense in this state, another state, or the United States with intent to:
1.
Increase * * *
a gang's size, membership, prestige, dominance or control in any
geographical area; or
2. * * * Exact revenge or
retribution for * * *
a gang or any gang member * * *; or
3. * * * Provide * * * a gang with any advantage in, or
any control or dominance over, any criminal market sector, including, but not
limited to, the unlawful manufacture, delivery, possession or sale of
controlled substances; arson; traffic in stolen property or stolen credit
cards; traffic in prostitution, obscenity or pornography; or that involves * * * burglary * * *, larceny or any crime of violence
as defined in Section 97-3-2; or
4. * * * Obstruct justice, or harass,
intimidate or eliminate any witness reasonably expected to testify in a
legal proceeding against * * * a gang or any * * * gang member; or
5. * * * Otherwise, directly or
indirectly, cause any benefit, aggrandizement, gain, profit or other advantage
whatsoever to or for the gang, its reputation, influence or membership * * *; or
6. Obtain or earn membership or maintain or increase the person's status or position in a criminal gang;
(ii) Acquiring or maintaining, directly or indirectly, through criminal gang activity, proceeds derived therefrom or any interest in or control of any real or personal property of any nature, including money;
(iii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for providing statements or testimony against a gang or gang member or associate;
(iv) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent the other person from communicating to any law enforcement or corrections officer, prosecuting attorney or judge information relating to a gang, gang member or associate, or criminal gang activity;
(v) Causing, encouraging, soliciting, recruiting, or coercing another to become a member or associate of a gang;
(vi) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter the other person from assisting a member or associate of a gang to withdraw from such gang;
(vii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for having withdrawn from a gang; or
(viii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for refusing, or encouraging another to refuse, to become a member or associate, or obtain the status of a member or associate, of a gang.
(e) "Underlying offense" means the act or acts that would constitute a criminal offense forming the basis of criminal gang activity.
SECTION 4. Section 97-44-19, Mississippi Code of 1972, is amended as follows:
97-44-19. * * *
(1) It is unlawful for any person to
conduct or participate in criminal gang activity.
(2) A crime committed in violation of this chapter shall be considered an offense separate from any underlying offense.
(3) A person who conducts or participates in criminal gang activity shall be punished by imprisonment for not less than five (5) years nor more than fifteen (15) years or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than Fifteen Thousand Dollars ($15,000.00), or both, in addition to and consecutive to any sentence imposed for any underlying offense.
( * * *4) The court may elect to suspend all
or a part of any additional mandatory punishment or enhanced punishment
provided in this chapter to impose alternative punishment in the form of
properly supervised community service or placement in an appropriate adolescent
offender program, if available, only in an unusual case where the interests of
justice would best be served, and if the court specifies on the record and
enters into the minutes the circumstances and reasons that the interests of
justice would best be served by the suspension of enhanced punishment.
(5) In addition to any other penalty provided by this section, all sentences imposed under this section shall require as a special condition of the sentence that the person sentenced shall not knowingly have contact of any kind or character with any other member or associate of a gang, shall not participate in any criminal gang activity, and, in cases involving a victim, shall not knowingly have contact of any kind or character with any victim or any member of a victim's family or household.
SECTION 5. The following shall be codified as Section 97-44-21, Mississippi Code of 1972:
97-44-21. For purposes of this chapter, it is not necessary to show that a particular conspiracy, combination or conjoining of persons possesses, acknowledges or is known by any common name, insignia, flag, means of recognition, secret signal or code, creed, belief, structure, leadership or command structure, method of operation or criminal enterprise, concentration or specialty, membership, age or other qualifications, initiation rites, geographical or territorial situs or boundary or location, or other unifying mark, manner, protocol or method of expressing or indicating membership when the conspiracy's existence, in law or in fact, can be demonstrated by a preponderance of the competent evidence. However, any evidence reasonably tending to show or demonstrate, in law or in fact, the existence of or membership in any conspiracy, confederation or other association described in this chapter, or probative of the existence of or membership in any criminal gang, or evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs or behaviors, shall be admissible in any action or proceeding brought under this chapter.
SECTION 6. Section 97-3-2, Mississippi Code of 1972, is amended as follows:
97-3-2. (1) The following shall be classified as crimes of violence:
(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);
(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);
(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);
(f) Kidnapping as provided in Section 97-3-53;
(g) Human trafficking as provided in Section 97-3-54.1;
(h) Poisoning as provided in Section 97-3-61;
(i) Rape as provided in Sections 97-3-65 and 97-3-71;
(j) Robbery as provided in Sections 97-3-73 and 97-3-79;
(k) Sexual battery as provided in Section 97-3-95;
(l) Drive-by shooting or bombing as provided in Section 97-3-109;
(m) Carjacking as provided in Section 97-3-117;
(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
(r) Exploitation of a child as provided in Section 97-5-33;
(s) Gratification of lust as provided in
Section 97-5-23; * * *
(t) Shooting into a dwelling as provided
in Section 97-37-29 * * *;
and
(u) Criminal gang activity as defined in Section 97-44-3.
(2) In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1) of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court.
SECTION 7. This act shall take effect and be in force from and after July 1, 2018.