BILL No. 29-0018 (Sanes) Virgin Islands Criminal Street Gang Prevention Act

8/7/2019 BILL No. 29-0018 (Sanes) Virgin Islands Criminal Street Gang Prevention Act

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BILL NO. -_2q~o-O IeTwenty-Ninth Legislature Of The Virgin Islands

An Act establishing the "Virgin Islands Criminal Street Gang Prevention Act"

-PROPOSED BY: Senator Sammuel Sanes

Be it enacted by the Legislature of the Virgin Islands:WHEREAS, it is the right of every person to be secure in his person and protected fro

unlawful intimidation and physical harm caused by any person or criminal street gang member anassociate; and

WIIEREAS, gang groups have proliferated in the Territoryover the years at alarminganddangerous rates, and

WHEREAS, the Territory presently faces growing criminal problems arising from gang-relate.' . ~.' . - ,',' '. - . .activities; and- ~ , - ,W H E R E A S , gang iriembers an d a sso ciate s c on tin ue .to th rea ten the peace aIidway~of~lif~ of a

1 0 . - _ citizens; and


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-. 2~WHEREAS, the Fourth Amendment to the U.S. Constitution does not extend to crimin

conduct or criminal associations; andWijEREAS, the Legislature finds that the Territory has. a compelling interest in preventin

criminal street gang activities and curbing the present and growing danger posed by the proliferationcriminal street gangs; and

WHEREAS, the Legislature finds that adequately addressing the social ills arising directly frocriminal street gangs is a political. Iegal and moral responsibility of the Government owed to all ofcitizens, and

.WHEREAS, the Legislature finds that this responsibility cannot be satisfied without meaningffinancial investments into public and private crime and gang prevention programs; and

WHEREAS, it is the intent of the Legislature to outlaw criminal street gangs and thassociates; and

WHEREAS, it is the intent of the Legislature to set forth severe penalties for personsproviding harsh- penalties for persons who have engaged in gang activities, while investing

. meaningful preventive and intervention programs designed to help curb criminal street gang activitim id

WHEREAS, it is not the intent of this Act to interfere with the exercise of the constitutional. ... protected rights of freedom of expression and association of a n y citizen; and

..WHEREAS, this Act does not criminalizernere association with. criminal street gangs, bassociations-made with the intent to further criminal street gang activities; Now, Therefore,Be iteli~cted by the Legislature o f the Yirgin Islands:

. SECTION LTitl~ 14VirginIslands Code isamended by adding chapter 124to readas follow, ~ -.. I . .

"Chapter 124.Crimiri~IStreet GangPrevention Act" .. .


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12'345678 .' criminal street gang activities, or.all property used or intended or attempted to be used to facilitate th

,4001. Short title, 'This chaptermaybe citedas'the "Criminal Street Gang Prevention Act". ,

'4002. DefinitionsIn this chapter:(a) "Contraband" means any property, including money, that is owned by, in the possession

of, or subject to the control of a criminal .street gang member 0 1 ' associate and which is acquired byderived from, or traceable to criminal street gang activities, or profits, proceeds or instrumentalities o

'criminal street gang activities of any criminal street gang or criminal street gang member or associate, o'. . .

" ,all profits, proceeds, or instrumentalities of criminal 'street gang recruitment, or all property' used o.intended or attempted to be used to facilitate criminal street gang recruitment. Contraband does n

12 'include property of any person 110ta criminalstreet gang member or associate who does not knowingly13 or willinglypermit the property to be used for the furtherance of criminal activities.14151617.

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(b) '''Crime of gang criminality" means offenses committed in violation of this c~apter.(c) ""Criminal street gang" means an ,ongoing organization, association, or group of three

,"more persons; whether formal or informal, whose members:. . . .(1) , individuallyor collectively, knowingly or willingly, .engage in or have engagedin

. - "."criminal street gang activities; and(2) , 'have as one of their primary objectives or activities thecommission or attempte

C commission of criminal acts} including acts committed by juveniles that would' otherwise b" . -' . ',"; " . .' .

criminal ~fcommitted by an 'adult;


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-4-.(i) 'the existence 'of such organization, association, group, 'sub-group 01 ' affiliate

group may be determined by evidence of use of a common mime, common identifying sign. .symbols; tattoos, graffiti, common attire or other distinguishingcharacteristics.

(ii) This term does not include three or more persons associated or organized, whethformally or informally, who are not engaged in criminal street gang activities.(d) "Criminal street gang activity or "criminal street gang-related activity" means:

(1) An activity or attempted activity committed to assist, benefit, promote or furththe interests of a criminal street gang, or for the purpose of increasing a person's own standingposition within a criminal street gang;

(2) An activity in which the participants are identified as criminal street gamembers or criminal street gang associates and where the participants act, whether individuallor collectively, with the specific intent to assist, promote or further the interests of a crimin

13 . street gang.14 (3) An activity that is identified as a criminal street garig activity by a documente151617181920. 2 . 1 ,22

reliable informant; or(4) An activity that is Identified as acriminal street gang activity by an informant

previously untested reliability. and such identification is corroborated' by independe.information.

. (e) "Criminal street gang ass~)Ciate"means,anyperson other than a criminal street gaIT.\ertibyr~sdefined under this chapter who knowingly and Willfully assists or participates i~ crimin

, Street gang .activity directly orindirectly and \Vitli 'thespecific intent o f furthering o~,promoting. t . . -. .. L". . - . .. ..- .~. ..interests of thecriminal street gang;


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. (f) -.: "Cl~iminalstreet gang l~embef' means- anyperson who knowingly becomes a member oa criminal street gang, and who participates. in the cl~imjna1street gang with the specific intent opromoting, furthering or assisting the criminal interests of t_hecriminal street gang.

(g) "electronic communication" means any transfer of signs, signals, writing, images, soundsdata, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,photoelectronic or photooptical system. -Electronic communication Includes, but is not limited to videotelephone communications, text messages, facsimile, electronic mail messages and instant message realtime communications with other individuals through the internet or other means, but does not include--

9 (1) any wire or oral communication;(2) any communication made through a tone-only paging device;(3) any communication from a tracking device (as defined in 18 U.S.C.S. 3117); or(4) electronic funds transfer information stored by a financial institution in a communicationssystem used for the electronic storage and transfer of funds;

.(h) "Family" means:. (1) _the person's spouse, whether o r not the spouse resides in the same home with th

person,(2) . the person's parentis), stepparenus), children, stepchildren, brothens), sisterts)

half-brothr(s),half-sister(s), grandparenus) 'and grandchildren, ':regardless of whether suc.persons i"esid~in the Same home'with the'person,

(3) the - p erso n 's _-mother-in-law, father-in-law, _ sons-in-law, daughters-in-law,. b r o rhens j- i n -Iaw and sistei'($)~i~-la\v whetheror notthein-law resides in the sa~e home with thperson, '.


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. C i} , "Graffiti" means, any form' of unauthorized printing, 'writing, spraying, scratchinaffixing, or iJj~crjbing on the propettyofanother regardless of the content of natureof the: material us

in the co~issi6n of the act. ",'0) , "Government" means the Government of the Virgin Islands, any agency, autonomous

semi-autonomous agency, or instrumentality of the Government of the VirginIslands,6, '4003. Crime' of gang criminality ,7 , ' , Any person who commits' an offense under this section is guilty of the crime of gang criminali8 and must be sentenced according to the provisions of this chapter.9, , (a)(1) It is unlawful for any criminal street.gang member o r associate of a criminal street gang

1 0 knowingly and willfully participate in any commission or attempted commission of a criminal act for t11 benefit of or at the direction of any criminal street gang and with the specific intent to promote or furth12 or assist in the criminal interests of the criminal street gang.13 (2) A person who is found guilty ofthe conduct prohibited in subsection (a), paragraph (1) of t14 section is guilty of a felony and, upon conviction, shall be sentenced to a term of imprisonment of n15 ",more than ten years, or to payment of a fine ofnotinore than $100,000, or both.16,'17l S

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(b)(1) It is unlawful for any person to knowirigly and willfully become a member of a crimin'street gang, or for any person to' knowingly, or willfully become a criminal street gang associatedefined under this chapter.. .:

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"" (:2 ) A person who is found guilty of the conduct,prohibited under subsection (b), paragraph C i ), this section is guilty of a felony and, upon convietion.ehallbesentenced to .imprisonmentfor ho t mo ' ',' '. _, _,. c ..'.fhan tw oy ears, 0 1"to paymentofa fineofrioUlloretban$25,._OOO,Qr 'bqth:. -~ ,. . . -.' . . , . . ... '.

, " ( c ) ( 1 1 . IUs unlawful for arty person to,lqJ.Qwin,giYanc!'wi11fuliyinitiat~,organiZe,:pian, financdirect; ~an~ge~ orsupervise criminal -street gang-related activities o r a ~riminal street g311g."


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-7-1 (2) A person who is found guilty of the conduct prohibited in subsection (c), paragraph 12 this section is guilty ora felony and, upon conviction; shall be sentenced to a term of imprisonment f3 not more than ten years, or to payment of a fine of not more than $100,000, or both.4 (d)(l) Any criminal street gang member or associate who uses electronic communication5 intimidate or harass any person for the purpose of benefiting, promoting, or furthering the interests of6 criminal street gang, Including such activities as distributing, selling, transmitting, or posting on t7 internet any audio, video, or still image of criminal activities, is guilty of a felony and, upon convictio8 s~all be sentenced to a term of imprisonment of not more than five years, or to payment of a fine of n9 more than $50,000, or both.

(2) Any person who uses. electronic communication to advertise his presence in tcommunity for the purpose of benefiting, promoting, or furthering the interests of a criminal street ganincluding such activities as distributing, selling, transmitting, Of posting on the internet any audio, videor still image of criminal activities, is guilty of a felony, and upon conviction, shall be sentenced toterm of imprisonment of not more than two years, or to payment of a fine of not more than $15,000,both.

(e)(1) Any person who knowingly and willfully causes, encourages, coerces, solicits, or recruianother person to participate in or join a criminal street gang is guilty of a felony and, upon convictionshall be sentenced to imprisonment for not more than two years, or to payment o.fa fine of riot more th. $ 2 . $ ' , 000, or to both such imprisonment and fine.0. '

(2) Any person age 18 years 0 1 : older-who .knowingly and willfully encourages, coercesolicits Dt recruits, or 'otherwise causesor attempts ..' to cause' a minor to partiCi~ate i n or become

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memberof what he knows to be a criminal street gang is guiltyof a felony and; upon conviction, sh


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besentenced to a termofimprisonment of not more than three years, or to payment of a fine of not mo, than $50,000, of both.

(3) Any person who knowingly and willfully coerces an individual to (A) remain as a participanin a criminal street gang, or (B) submit to a demand made by a criminal member or associate to comma criminal act is guilty of a felony and, upon-conviction, shall be sentenced to a term of imprisonmentnot more than three years, or to payment of a fine of not more than $50,000, or both.

(4) Any criminal street gang member or associate who:. .(A) uses force, a firearm or any other deadly weapon, or physical violence against an individu

or member of his household; or(B) threatens force against an individual or the individual's household where such threats a

likely to place any reasonable person in reasonable fear or apprehension of bodily harm or death,guilty of a felony and, upon conviction, shall be sentenced to a term of imprisonment of not more thten years, or to the payment of a fine of not more than $100, 000, or both._

(f) Any person who communicates threats of bodily injury or damage to,property of anotherpunishment or retaliation against a person for attempting to or having withdrawn from a criminal stregang is guilty of a felony, and upon conviction, shall be sentenced to a term of imprisonment for nmore than three years, or to payment of a fine of not mow than $50,000, or both.

(g) Any firearm; ammunition, weapon ordangerous instrument, .01: any written or electron'coi1)ITmnications', records, money.inegotiable Instrumentsrcr valuables, or a n y contraband, 'as definunder section 4002,. or other asset owned or titled in the name of any criminalstreet gang, criminalstree, ,.',', . .ga~g-irie~b~~' or associate m a y : be ':seized ".by:ap.y lawenfcrcement officer-or. pe~~e officer asubsequently forfeited, pursuant to title ?3 Virgin IsIaD:dsCod~,chaptei' 5 , se.ction487. :


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-9-(h) It is unlawful for any criminal street gang member or gang associate to deface by graffiti a

real, or personal property of th-e Territory, of another -person, organization or entity -with -the speci

intent of furthering or promoting t h e criminal acts or interests of a criminal street gang.(1) A person found guilty of the conduct prohibited insubsection (i) of this section is guilty o

misdemeanor and, upon_conviction, may be sentenced to a term of imprisonment for not-more thanmonths, or to payment of a fine of not more than $1,000, or both.

(2) Damages for violations under this section also-include re-moval costs, repair costs,replacement costs. The COUl t may order restitution to the victim in the amount of removal, repair,replacement costs, whichever is less. _

(3) A person who voluntarily and at his own expense, removes graffiti for which heresponsible may be credited for the removal costs against restitution ordered by the COUlt.4004. Separate offense; matters proven during criminal trials

Any offense committed in violation of this chapter is considered a separate offense. Nothingthis chapter may prohibit the arrest and prosecution of a criminal street gang member or criminal strgang associate for violations under other sections of the Virgin Islands Code except to the exteprovided by law.4005. Enhanced sentencing; Court's discretion

- (a) Any person, who violates this chapter in the commission of the underlying criminal- commitsa felony, 'upon conviction of theunderlying felony and in -addition and consecutive to. t. . . .. . . '. .",punishment prescribed for the felony convicted of, shall be punished by an additional term of one, tW_,. ... r - ~

.. or three years, at the discretion of the court if the underlying felony included any of the "following crim- 2 2 - " under 14YLC.:23 ... -1 . Abduction;


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ii. Arson;.iii. Assault;

iv. Auto theft;v. Battery;

VI. Bribery;vii. Burglary;

viii. Carrying or using dangerous weapons;ix, Child Exploitation;x. Child Pornography;xi. Conspiracy;

xii. Counterfeiting;xiii. Criminally Influenced and Corrupt Organizations;xiv. Embezzlement;xv. Extortion;xvi. FaIse Personification;

xvii. Forgery;xviii. Fraud;xix. ' Homicide;xx. Kidnapping;

. xxi. Larceny;, ' xxii.' Mayhem.

, ,xxiii. .Obstruction.of justice;xxiv. Perjury;'


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xxv. Prostitution; :xxvi.. Rape;

xxvii. Robbery;xxviii, Sabotage;xxix. Theft;xxx. Trafficking of Persons

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(b) Any person who violates this chapter in the commission of a felony and who does sothe grounds of, or within 1000 feet of any public or private elementary, junior or high school,

9 ..vocational school or learning institution, shall, upon conviction of the underlying felony and in additand consecutive to the punishment prescribed, for the felony conviction, be punished by an additioterm of two to four years, at the discretion of the court.4006. Civil cause of action

(a) Any person, organization or entity establishing by clear and convincing evidence coerci. intimidation, threats, or any injury by reason of a violation of this chapter has a civil cause of actiontreble damages, punitive damages, injunctive relief, or any other appropriate relief in law 'or equShould the plaintiff prevail, he may also recover reasonable attorney fees and costs incurred frominvestigation. and litigation.

(b) In addition to other remedies provided by law, thegovernmentshall have a civil cause, ' - . ~.. .

action against any personc upon a : showing by clear and convincing evidence that it has been injuredreason O f a violation of this chapter .. The Government shall have a civil cause of action' for tr~ .' - '~-. -. c " - r _ I" .' _ .'

. ,'.damages, punitive damages.aninjunction, or any other appropriate relief.in law o r equity,


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-12-', '(c) The defendant is, entitled to recover reasonable attorney's fees and court costs if the cou. . '. .

finds that the plaintiff raised a claim without factual or legal support and was vexatious, frivolous,- , - ' .brought in bad faith.4007. Notification O f police or law enforcement agencies of release of criminal street gangmember froin prison

When a criminal street gang member or associate is released from the custody of ajail, prison,corrections facility of the Virgin Islands, and the criminal street gang member was in the custody f

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violating this chapter, a designated employee of the jail, prison, or corrections facility shall transmnotice of the release to the chief of police for the district where the releasee is likely to reside. Notimust be sent not later than ten days exclusive of local and federal holidays and before the date that tcriminal street gang member or associate is scheduled to be released.4008. Enhanced law enforcement efforts

(a) The Virgin Islands Police Department and other law enforcement agencies of the VirgIslands shall concentrate enhanced law enforcement efforts and resources upon all criminal activiti

"prohibited under this chapter.(b) The Virgin Islands Police Department shall establish a specialized gang violence unit whos

staff is composed of the most highly qualified and trained personnel.. . -(c) The efforts of the gan~,violence unit shall include:

(1) Coordinating with: the Department of Education to develop, adopt and implement .gapreventive programs;

'.'(2)'.Apprehendingprosecuting, andcollvis:tillgviolent gang me~bets ' and associates;'.'"(3) Identifying and documenting criminal ~tre'et gang activities;',


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-13~,"-(4) Establishing 3: working relationship with' local citizens, community-based organization

business representativesand other criminal agencies; and

(5) Assisting other cr iminal justice and govenunent agencies in the protection of witnesses frintimidation or retribution from gang members and their associates due to their cooperation with lenforcement agencies.4009. Development and management of a territory-wide criminal street gang data base

(a) The Department of Justice shall develop and manage a territory-wide criminal street gadatabase to facilitate the exchange of information between t h e districts' law enforcement agencies 'federal and state la w enforcement agencies.

(b) All law enforcement agencies shall furnish information acquired and relating to criminal strgangs and gang-related activities to the Departmentto be included in the database.

(c) The Department shall notify all law enforcement agencies of the requirement to report crimistreet gang members or associates and criminal street gang activities, for entry into the territory-widcriminal street gang database.

SECTION 2. Title 33, Virgin Islands Code, chapter 111, is amended by adding a new sect, 31 DOw to read as follows:~'3100w. Establishment of fund; disposition' .

"There is established a separate and distinct fund within the TreaSlu'Y of theVirgin Islands t odesignated and known as the "Crime and Gang Prevention Fund";,

(a) No fundsshall be available forexpenditurefrom this Fund exceptas provided by this c.hap,~r6tbei law. '" '

,,(b) (1)The F~mdshall consists- of: '(A)-moilies appropriated to it fn)J,11timet?' time by the Legislature;


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-'14-(B) all proceeds from forfeitures ordered by a court pursuant to 14 V.Le., chapter 124;

-.(C) fines imposed by a court, whether by final judgment, settlement, or civil penaltiimposed pursuant to the-provisions of 14 V.I.C., chapter 124; and

(D) all gifts, donations and bequests made to the Fund.(c) _All appropriations or monies of the Fund shall be transmitted to the Treasury of t

Government of the Virgin Islands arid deposited into the Fund. .:(d) Monies in the Fund must be used exclusively for funding public and private youth anti-stre

gang programs.(e) The Commissioner of finance shall administer the Fund and shall disburse monies from t

Fund at the direction of the Commissioner of Public Safety.(f) Monies available in the Fund are non-lapsing.

BILL 'SUMMARYThis bill' amends title 14 appropriately and establishes the Virgin Islands" Criminal Street Ga

_Prevention Act". The focus of this bill is multi-purpose.- First, the bill places the Virgin Islands among the many states having anti-gang statutes.Second, the bill addresses the many social ills arising train gang activities, such as the use a

sale of'illegal substances .and weapons -~nd robberies, burgl~-ies, criminal batteries and assaults a.murders. The bill acbieves this goal by imposing harsh penalties on criminal street gang members a. "_ '. ' , "-associates engaged in gang-related activities inorder to adequatelypunish offenders and deter futu. - -,. . . ' . ..- ~., ., -criminal acts and prevent recidivism


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-15--Third, in addition, to the penalties, this bill .requires the Government to make meaningf

.investments into criminal and gang prevention.and intervention programs as necessary to help curb ga

activities; which include gang recruitment and retention.Section 1, 4002 defines the necessary terms of the bill. Under this section, subsection

"criminal street gang" includes any group of three or more persons who or whose members have as thprimary objectives the commission or attempted commission of criminal acts. This definition doesinclude a group of three or more persons merely indentified by a common name or common identifyi. .signs, symbols, tattoos, graffiti or attires.

Subsection (d) defines "criminal street gang activity" as an act committed or attemptedcommitted by a criminal street gang member or associate with the specific intent to assist, benepromote or further the interests of a criminal street gang. This definition extends to interests identifiby credible informants.

Subsection (e) defines "criminal street gang associate" as any person other than a "criminal strgang member" who knowingly and willfully assists or participates in a criminal street gang activity wthe specific intent of furthering or assisting the activities of the criminal street gang.

Lastly, subsection (f) defines "criminal street gang member" as a person who knowingbecomes a member of a criminal street gang and who participates in the criminal street gang withspecific intent of promoting gang-related activities.

Internal 4004provides that a violation of the Virgin Islands Criminal street gang Prevention AI S a separate offense ..

'. - Internal; 40b5,subsect~qn (a) .gives the-sentencing judge .discretion to-enhance an ciffende. . ..sentence t o an additionaron~ t o three years if the underlying criminal offense is a felony. Subsection


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. 1 also enhances a sentence if the criminal act was committed within 1000 feet of any public or priv2 ' schooi or learning institution. .

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3 Intetnal4006, subsection (a)(1) makes itunlawful for any criminal street gang member4 knowingly and willfully participate inany commission or attempted commission of a criminal act w5 the specific intent of promoting, furthering or assisting the criminal activities of the criminal street ga6 A person convicted under this subsection will be sentenced up to ten years, or the payment of a fine7 to $100,000, or both.8 Subsection (a)(2) prohibits any person from knowingly and willfully becoming a criminal str9 gang member or a criminal street gang associate. This section recognizes that some associations

1 0 criminal and are entered into for the furtherance of criminal street gang activities. This section does11 criminalize mere association or membership without more. Regardless of whether the person i12 criminal street gang member or associate, the bill requires that the person knowingly becomes a crimi13 street gang member or associate and have participated or assisted the criminal street gang with14 specific intent to promote or further the activities of the criminal street gang. Lastly, the United Sta15 Constitution does not protect criminal memberships or associations.16 Internal 4007 makes it a felony to knowingly and willfully ih~tiate or organize or finance, dir.17 . or-manage criminal street gang-related activitiesoracriminal street gang, ..18 Internal 400S, subsecti~n(a) prohibits th e useofelectronic comnlUnicatic:into intimate or har19 .any person for the purpose of benefitingpromoting or furthering the interests of a : criminalstreet ga

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20, This offense carries a penalty of no t more than five years in prison, or a fine o f not more than $50 , 0- ,., .' c " --;'" -. '..',' "21. orboth," In addition subsectionIb) prohibits-the useof'electronic communication to advertisea ga

22 m.ember's presence iIi' thecommunity for th y purpose o f benefiting, promotingorfurtheririg the intere. .. . . - - , . . .' ..2 3 .: ofa criminal street g a n g .

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-17-1 Internal 4009, subsection (a) prohibits the knowing encouraging or recruiting of another perso2 ' to participate in or join acrimirial street gang. Subsection (b) provides a penalty of not more than thr3 years imprisonment or to the payment of a fine of not more than $50,000, or both if the perso4 encouraged or recruited is a minor. Subsection (c) prohibits the knowing and willful coercion of a5 .individual to (A) remain as a participant in or a member of a criminal street gang or (B) submit to6 . demand made by a criminal street gang member or associate.7 Internal 4010 prohibits the communication of threats of bodily injury or property to any perso8 as punishment or retaliation for attempting to or having withdrawn from a criminal street gang.9 Internal 4012 provides for the seizure and subsequent forfeiture of firearms, ammunition10 electronic records and money, pursuant to title 23 Virgin Islands Code, chapter 5, section 487 ..11 Internal 4014 provides a civil cause of action to any person or the Government upon t12 showing of an injury by reason of a violation of the provisions of the bill.13 Internal 4017 establishes the "Crime and Gang Prevention Fund" for the purpose of fundin14 public and private anti-crime and gang programs. Section 4 establishes a "Crime and Criminal stre15 gang. Prevention Granting Program" to administrate the Fund. Under the Program, the Poli16 Commissioner is the appointed chairperson.17 Lastly, Section 2 appropriate monies into the Fund.1819 ..Drafter's Note

. 20 This bill's content and dtati6ri,scan~10t be verified due to time constraints.2 .122:2313RII-0040Tb/Jan'uary zi, 2011/AA/revised & edited 2i1511jl

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Documents

BILL No. 29-0018 (Sanes) Virgin Islands Criminal Street Gang Prevention Act