Report on proposed legislation pursuant to G.S. 164-43 submitted to the ... session of the North Carolina General Assembly

              NORTH CAROLINA
SENTENCING
AND
POLICY ADVISORY
COMMISSION
REPORT ON PROPOSED LEGISLATION
PURSUANT TO N.C.G.S. 164-43
SUBMITTED TO THE 2008 SESSION OF THE
NORTH CAROLINA GENERAL ASSEMBLY
JUNE 2008
THE HONORABLE W. ERWIN SPAINHOUR
CHAIRMAN
SUSAN KATZENELSON
EXECUTIVE DIRECTOR
NC SENTENCING AND POLICY ADVISORY COMMISSION
MEMBERSHIP
Hon. W. Erwin Spainhour, Chairman
Superior Court Judge
Dr. David Barlow
Professor, Fayetteville State University
Sheriff Hayden Bentley
NC Sheriffs’ Association
Hon. Stan Bingham
State Senator
Hon. Alice L. Bordsen
State Representative
Joseph B. Cheshire V
NC Academy of Trial Lawyers
Locke T. Clifford
NC Bar Association
Louise Davis
NC Community Sentencing Association
Judge Richard A. Elmore
NC Court of Appeals
Hon. Paul H. Gibson
NC Association of County Commissioners
William P. Hart
NC Attorney General’s Office
Mary Y. “Larry” Hines
Private Citizen, Governor’s Appointee
Hon. Robert F. Johnson
NC Conference of District Attorneys
Hon. Eleanor Kinnaird
State Senator
Charles Mann
NC Post-Release Supervision & Parole
Commission
Judge H. Paul McCoy, Jr.
NC District Court Judges’ Association
Moe McKnight
NC Retail Merchants’ Association
Luther T. Moore
Lieutenant Governor’s Appointee
Judge Fred G. Morrison, Jr.
Justice Fellowship
Chief Frank Palombo
NC Association of Chiefs of Police
Judge Ronald K. Payne
NC Conference of Superior Court Judges
Anthony E. Queen
NC Victim Assistance Network
June Ray
NC Association of Clerks of Superior Court
Hon. Karen B. Ray
State Representative
Billy J. Sanders
Commission Chairman’s Appointee
Hon. John J. Snow, Jr.
State Senator
Hon. Timothy L. Spear
State Representative
Mildred Spearman
NC Department of Correction
George L. Sweat
NC Department of Juvenile Justice and
Delinquency Prevention
Jonathan Williams
NC Dept. of Crime Control & Public Safety
NORTH CAROLINA SENTENCING AND POLICY ADVISORY
COMMISSION
REPORT ON PROPOSED LEGISLATION
PURSUANT TO G.S. 164-43
This report by the Sentencing Commission includes all bills introduced or amended through June 10,
2008. The report is submitted in conformance with the following requirements of G.S. 164-43:
(e) Upon adoption of a system for the classification of offenses formulated pursuant to G.S. 164-41, the
Commission or its successor shall review all proposed legislation which creates a new criminal offense,
changes the classification of an offense, or changes the range of punishment for a particular classification, and
shall make recommendations to the General Assembly.
(f) In the case of a new criminal offense, the Commission or its successor shall determine whether the proposal
places the offense in the correct classification, based upon the considerations and principles set out in G.S.
164-41. If the proposal does not assign the offense to a classification, it shall be the duty of the Commission
or its successor to recommend the proper classification placement.
(g) In the case of proposed changes in the classification of an offense or changes in the range of punishment
for a classification, the Commission or its successor shall determine whether such a proposed change is
consistent with the considerations and principles set out in G.S. 164-41, and shall report its findings to the
General Assembly.
(h) The Commission or its successor shall meet within 10 days after the last day for filing general bills in the
General Assembly for the purpose of reviewing bills as described in subsections (e), (f) and (g). The
Commission or its successor shall include in its report on a bill an analysis based on an application of the
correctional population simulation model to the provisions of the bill.
A one page summary is included for each bill (or each relevant section of a bill) which either creates a
new crime, changes the classification of an existing crime, or prescribes a new range of punishments.
The summary provides the bill number, the short title, and a brief description. At the bottom of the
summary is an analysis and a finding of whether the bill appears consistent with the Commission’s
classification criteria as specified in G.S. 164-41 (see following page for a description of the criteria).
Following the summary is an analysis of the projected impact of the bill (a more detailed impact analysis
is provided to the Fiscal Research Division). The impact estimates assume an effective date of
December 1, 2008.
These summaries may not reflect the most recent bill amendments or committee substitutes. The date
on which each individual summary was prepared is shown on the bottom left hand corner of each
summary page. Changes made after this date are not reflected in this report.
The bills included in this report were reviewed by the North Carolina Sentencing and Policy Advisory
Commission on June 13, 2008.
The fact that the Commission found a bill to be either consistent or inconsistent with the structured
sentencing offense classification criteria does not imply either support for or opposition to the bill. In
this report, the Commission has taken no position on the merits of any bill other than those specifically
proposed by the Commission.
THE OFFENSE CLASSIFICATION CRITERIA
The Sentencing Commission was required by G.S. 164-41 to ".... classify criminal offenses into felony
and misdemeanor categories on the basis of their severity." The Commission developed a classification
criteria to guide the classification process and to ensure that there was a systematic and rational basis for
the classifications. The Commission decided that the severity of an offense should be directly related to
the harm to the victim that normally results or tends to result from the criminal conduct.
The Commission defined three general types of harms: 1) harms to person (including both physical and
mental injury); 2) harms to property; and 3) harms to society (violations of public order and welfare,
violations of judicial or governmental operations, and/or violations of public morality). Through
considerable discussion and debate, the Commission grouped these harms into a ten-level hierarchy
which served as the basis for the Commission's classifications (refer to the classification criteria on the
following page). Once the classification criteria was established, the Commission reviewed the
individual elements of all felonies in North Carolina and assigned each felony to a specific offense class
based on how closely the elements of the crime matched the classification criteria.
The purpose of establishing the classification criteria was to create a rational and consistent
philosophical basis for classifying offenses; to assure proportionality in severity; and to provide a
guidepost for classifying new crimes in the future.
Under the classification criteria, the most serious offense classes (A through F) primarily involve
personal injury, the risk of personal injury, serious societal injury or widespread societal injury. The
lower offense levels (G through I) primarily involve property loss or less serious societal injury. The
degree of harm is divided into three levels; injury to person, property or society; significant injury to
person, property or society; and serious injury to person, property or society.
The Commission also assigned misdemeanor offenses to four classes: class A1, class 1, class 2 or class
3. The Commission did not create classification criteria for misdemeanors but relied on the maximum
sentences previously set by the General Assembly. Generally, crimes which had previously been
punishable by over six months were made class 1 misdemeanors, those previously punishable by more
than 30 days and up to six months were made class 2 misdemeanors, and those previously punishable by
30 days or less were made class 3 misdemeanors. Assaultive misdemeanors were made Class A1
misdemeanors.
In 2004, the General Assembly noted that there were criteria for the classification of felony offenses but
not for misdemeanor offenses. It asked the Commission to study the classification of misdemeanor
offenses and to develop a system for classifying them on the basis of their severity.
The Commission developed a misdemeanor offense classification system based on the type and degree
of harm that results or tends to result from an offense (refer to the classification criteria on the following
pages). This is similar to the felony offense classification system. It uses the same types of harm
(person, property, and society) and degrees of harm (serious, significant, and minor). The Commission
divided the criteria into four groups to conform to the four misdemeanor offense classes. The
misdemeanor criteria are separate from the felony criteria because the harms that result from the
misdemeanor offenses are viewed as being separate from the harms that result from the felony offenses.
The Commission then reviewed the most frequently convicted misdemeanor offenses and recommended
reclassifying some of them based on a comparison of the elements of the crimes to the criteria. The
Commission also decided that it would use the misdemeanor offense classification criteria for the
classification of all new misdemeanor offenses and the reclassification of existing misdemeanor offenses
proposed in the future. This report includes a comparison of offenses proposed in this session to the
misdemeanor offense classification criteria.
FELONY OFFENSE CLASSIFICATION CRITERIA*
CLASS CRITERIA
A • Reserved for First Degree Murder
[Reasonably tends to result or does result in:]
B • Serious debilitating long-term personal injury
C • Serious long-term personal injury
• Serious long-term or widespread societal injury
D • Serious infringements on property interest which also implicate physical safety concerns
by use of a deadly weapon or an offense involving an occupied dwelling
E • Serious personal injury
F • Significant personal injury
• Serious societal injury
G • Serious property loss
Loss from the person or the person’s dwelling
H • Serious property loss:
Loss from any structure designed to house or secure any activity or property
Loss occasioned by the taking or removing of property
Loss occasioned by breach of trust, formal or informal
• Personal injury
• Significant societal injury
I • Serious property loss:
All other felonious property loss
• Societal injury
M • All other misdemeanors
* Personal injury includes both physical and mental injury.
Societal injury includes violations of public morality, judicial or government operations, and/or public order and welfare.
Note: The criteria were not used in the classification of the homicide offenses or drug offenses.
MISDEMEANOR OFFENSE CLASSIFICATION CRITERIA*
CLASS CRITERIA
[A misdemeanor offense that reasonably tends to result or does result in]:
A1 (a) Serious injury to person
(b) Battery of a person who is a vulnerable victim or a member of a protected class
1 (a) Significant injury to person
(b) Serious injury to property
(c) Serious injury to society
2 (a) Significant injury to property
(b) Significant injury to society
(c) Assault or affray against a person who is a vulnerable victim or a member of a
protected class
3 (a) Minor injury to person
(b) Minor injury to property
(c) Minor injury to society
* Personal injury includes both physical and mental injury.
Societal injury includes violations of public morality, judicial or government operations, and/or public order and welfare.
Note: The criteria were not used in the classification of the drug offenses, impaired driving offenses, or homicide offenses.
TABLE OF CONTENTS
HB 274 – Street Gang Suppression Act [v.5] ............................................................................................. 1
HB 517 – Fleeing Accident Scene/Increase Penalty [v.3]........................................................................ 35
HB 933 – Jessica Lunsford Act for NC [v.3]............................................................................................ 37
HB 1003 - Aggravating Factor/No Probation Compliance [v.3].............................................................. 53
HB 2192 – Failure to Release a Security Interest ..................................................................................... 55
HB 2339 – Amend Child Abuse/Child Fatality Task Force [v.2] ............................................................ 56
HB 2403 – Regulate Dangerous Animals................................................................................................. 59
HB 2417 – Crimes of Torture and Enforced Disappearnace .................................................................... 63
HB 2499 – Drought/Water Management Recommendations ................................................................... 67
HB 2589 – Increase Maximum Speed for Mopeds................................................................................... 68
HB 2610 –Employers Must Use Federal E-Verify Programs................................................................... 69
SB 1314 – Amend Massage & Bodywork Therapy Act [v.3] .................................................................. 70
SB 1596 – NC Citizen Protection Act ...................................................................................................... 71
SB 1633 – Prosthetist/Orthotist/Pedorthist Licensure .............................................................................. 78
SB 1804 – Multiunit Asst. Housing Svs. Regis. Fee ................................................................................ 79
SB 1816 – Amend Child Abuse/Child Fatality Task Force...................................................................... 56
SB 1860 – Amend Child Abuse/Child Fatality Task Force [v.2]............................................................. 56
SB 1788 – Regulate Dangerous Animals.................................................................................................. 59
SB 1980 – Amend Massage & Bodywork Therapy Act........................................................................... 70
SB 1988 – Unlawful to Burn Cross/Hang Noose ......................................................................................80
SB 2010 – Create Titling Categories-Replica/Street Rod..........................................................................82
SB 2066 – Adjust B1-E Felony Penalties..................................................................................................83
SB 2067 – Even Out Prior Criminal Record Point Ranges .......................................................................84
SB 2068 – Establish Proportionate Sentence Lengths...............................................................................85
SB 2080 – UNC Campus/Safety Funds [v.2] ............................................................................................86
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
1
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [v.5]
STATUTE
§ 14-34.9. Discharging a firearm from within an enclosure.
DESCRIPTION
A person who
1. willfully or wantonly
2. discharges or attempts to discharge
3. a firearm,
4. as part of a pattern of criminal street gang activity,
5. from within any building, structure, motor vehicle, or other conveyance, erection, or enclosure
6. toward a person or persons not within that enclosure.
PROPOSED OFFENSE CLASS
Class E felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
personal injury as Class E felonies.
G.S. 14-34.1, Discharging certain barreled weapons or a firearm into occupied property, is a Class E
felony. It becomes a Class D felony if the weapon is discharged into an occupied dwelling or into any
occupied vehicle, aircraft, watercraft, or other conveyance that is in operation. It becomes a Class C
felony of the violation results in serious bodily injury to any person.
This provision is identical to a provision in HB 50 which the Commission reviewed in March, 2005 and
a provision in HB 274 [v.1] in March, 2007. The Commission found that provision to be consistent with
the Offense Classification Criteria.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
2
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [v.5]
STATUTE
§ 14-50.16. Pattern of criminal street gang activity.
DESCRIPTION
Subdivision (a)(1):
A person who
1. is employed by or associated with a criminal street gang and
2. conducts or participates in
3. a pattern of criminal street gang activity.
“Criminal street gang” is defined as any ongoing organization, association, or group of three or more
persons, whether formal or informal, that:
(1) Has as one of its primary activities the commission of one or more felony offenses, or delinquent
acts that would be felonies if committed by an adult,
(2) May have a common name, common identifying sign or symbol, and has three or more members
individually or collectively engaged in, or who have engaged in, criminal street gang activity.
“Criminal street gang activity” is defined as committing, attempting to commit, or soliciting, coercing,
or intimidating another person to commit an act or acts, with the specific intent that such act or acts were
intended or committed for the purpose, or in furtherance, of the person's involvement in a criminal street
gang or street gang. An act or acts are included if accompanied by the necessary mens rea or criminal
intent and would be chargeable by indictment under the following laws of this State:
(1) Any offense under Article 5 of Chapter 90 of the General Statutes (Controlled Substances Act).
(2) Any offense under Chapter 14 of the General Statutes except Articles 9, 22A, 40, 46, 47, 59
thereof; and further excepting G.S. 14-78.1, 14-82, 14-86, 14-145, 14-179, 14-183, 14-184,
14-186, 14-190.9, 14-195, 14-197, 14-201, 14-247, 14-248, 14-313 thereof.
“Pattern of criminal street gang activity” is defined as engaging in, and having a conviction for, at least
two prior incidents of criminal street gang activity, that have the same or similar purposes, results,
accomplices, victims, or methods of commission or otherwise are interrelated by common characteristics
and are not isolated and unrelated incidents, provided that at least one of these offenses occurred after
December 1, 2008, and the last of the offenses occurred within three years, excluding any periods of
imprisonment, of prior criminal street gang activity. Any offenses committed by a defendant prior to
indictment for an offense based upon a pattern of street gang activity shall not be used as the basis for
any subsequent indictments for offenses involving a pattern of street gang activity.
PROPOSED OFFENSE CLASS
Class H felony.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
3
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant societal injury as Class H felonies.
This provision is identical to a provision in HB 732 which the Commission reviewed in April, 2003, and
a provision in HB 50 which the Commission reviewed in March, 2005, except that they were Class E
felonies. The Commission found that provision to be inconsistent with the Offense Classification
Criteria but recommended that it would be consistent with the Offense Classification Criteria for a Class
H felony.
This provision is identical to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007. The Commission found that provision to be consistent with the Offense Classification Criteria for
a Class H felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
4
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.16. Pattern of criminal street gang activity.
DESCRIPTION
Subdivision (a)(2):
A person who
1. is employed by or associated with a criminal street gang and
2. acquires or maintains
3. any interest in or control of any real or personal property
4. through a pattern of criminal street gang activity.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant societal injury as Class H felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, and a
provision in HB 50 which the Commission reviewed in March, 2005, except that they were Class E
felonies. The Commission found that provision to be inconsistent with the Offense Classification
Criteria but recommended that it would be consistent with the Offense Classification Criteria for a Class
H felony.
This provision is similar to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007. The Commission found that provision to be consistent with the Offense Classification Criteria for
a Class H felony. This version adds the first element.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
5
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.16. Pattern of criminal street gang activity.
DESCRIPTION
Subsection (a):
Any person who
1. violates subdivision (a)(1) and
2. is an organizer, supervisor, or acts in any other position of management with regard to the criminal
street gang.
PROPOSED OFFENSE CLASS
Class F felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant personal injury or serious societal injury as Class F felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, a
provision in HB 50 which the Commission reviewed in March, 2005, and a provision in HB 274 [v.1]
which the Commission reviewed in March, 2007, except that the provision was a punishment
enhancement. The Commission found that provision to be inconsistent with G.S. 164-41.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
A Class F felony tends to result in serious societal injury. This offense does not result in serious societal
injury. This offense would be consistent with a Class H felony. The Sentencing Commission classified
offenses which reasonably tend to result or do result in significant societal injury as Class H felonies.
Note: Because of the additional element of being an organizer, etc., an offender could be charged with
violations of subdivision (a)(1) (see page 2) and this proposed offense.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
6
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.17. Soliciting; encouraging participation.
DESCRIPTION
A person who
1. causes, encourages, solicits, or coerces
2. a person 16 years of age or older
3. to participate in criminal street gang activity.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant societal injury as Class H felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, and a
provision in HB 50 which the Commission reviewed in March, 2005, except that they were Class G
felonies and did not have the minimum age requirement. The Commission found that provision to be
inconsistent with the Offense Classification Criteria but recommended that the “causes, encourages,
solicits” portion of the offense would be consistent with the criteria for a Class I felony and that the
“coerces” portion of the offense would be consistent with the criteria for a Class H felony.
This provision is similar to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007, except that it did not have the minimum age requirement. The Commission found that provision
to be consistent with the Offense Classification Criteria for a Class H felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
7
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.18. Soliciting; encouraging participation; minor.
DESCRIPTION
A person who
1. causes, encourages, solicits, or coerces
2. a person under 16 years of age
3. to participate in criminal street gang activity.
PROPOSED OFFENSE CLASS
Class F felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant personal injury or serious societal injury as Class F felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, and a
provision in HB 50 which the Commission reviewed in March, 2005, except that they were Class G
felonies and did not have the age requirement. The Commission found that provision to be inconsistent
with the Offense Classification Criteria but recommended that the “causes, encourages, solicits” portion
of the offense would be consistent with the criteria for a Class I felony and that the “coerces” portion of
the offense would be consistent with the criteria for a Class H felony.
This provision is similar to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007, except that it did not have the age requirement. The Commission found that provision to be
consistent with the Offense Classification Criteria for a Class H felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
8
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.19. Threats to deter from gang withdrawal.
DESCRIPTION
A person who
1. communicates a threat of injury to a person, or
2. damages the property of another,
3. with the intent to deter a person from assisting another to withdraw from membership in a criminal
street gang.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant societal injury as Class H felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, and a
provision in HB 50 which the Commission reviewed in March, 2005, except that it was classified as a
Class G felony. The Commission found that provision to be inconsistent with the Offense Classification
Criteria.
This provision is similar to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007. The Commission found that provision to be consistent with the Offense Classification Criteria for
a Class H felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
9
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.20. Threats of punishment or retaliation.
DESCRIPTION
A person who
1. communicates a threat of injury to a person, or
2. damages the property of another,
3. as punishment or retaliation against a person for having withdrawn from a criminal street gang.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant societal injury as Class H felonies.
This provision is similar to a provision in HB 732 which the Commission reviewed in April, 2003, and a
provision in HB 50 which the Commission reviewed in March, 2005, except that it was classified as a
Class G felony. The Commission found that provision to be inconsistent with the Offense Classification
Criteria.
This provision is similar to a provision in HB 274 [v.1] which the Commission reviewed in March,
2007. The Commission found that provision to be consistent with the Offense Classification Criteria for
a Class H felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
10
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 14-50.22. Enhanced offense for criminal gang activity.
DESCRIPTION
A person who
1. is convicted of a misdemeanor offense and
2. that offense is committed for the benefit of, at the direction of, or in association with, any criminal
street gang.
PUNISHMENT RANGE
CURRENT: Punished according to the class of the offense and the offender’s prior conviction level.
PROPOSED: Punished one class higher than the class of the offense committed. A Class A1
misdemeanor shall be enhanced to a Class I felony.
ANALYSIS
This provision is similar to a provision in HB 50 which the Commission reviewed in March, 2005, and a
provision in HB 274 [v.1] which the Commission reviewed in March, 2007. The Commission found
that provision to be inconsistent with G.S. 164-41 and noted that there is currently an aggravating factor
that applies to offenses committed for the benefit of, or at the direction of, any criminal street gang (G.S.
15A-1340.16(d)(2a)). That provision was not limited to misdemeanor offenses.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
11
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 274 – STREET GANG SUPPRESSION ACT [V.5]
STATUTE
§ 15A-1340.16A. Enhanced sentence if defendant is convicted of a Class A, B1, B2, C, D, or E felony
and the defendant used, displayed, or threatened to use or display a firearm or deadly weapon during the
commission of the felony.
DESCRIPTION
A person who
1. is convicted of a Class A, B1, B2, C, D, or E felony and
2. the person committed the felony by using, displaying, or threatening the use or display of a firearm
or deadly weapon and
3. the person actually possessed the firearm or deadly weapon about his or her person.
The enhancement does not apply if the evidence of the use, display, or threat to use or display the
firearm is needed to prove an element of the felony or if the person is not sentenced to an active
sentence.
PUNISHMENT RANGE
CURRENT: Punished according to the class of the offense and the offender’s prior record level. There
is no enhancement if the person used, displayed, or threatened to use or display a deadly weapon other
than a firearm.
PROPOSED: If any person is convicted of a Class A through E felony and they used, displayed, or
threatened to use or display a deadly weapon, their minimum sentence may be increased by 60 months.
ANALYSIS
This bill adds “deadly weapon” to the existing firearm enhancement. The previous version was limited
to a felony committed for the benefit of, at the direction of, or in association with any criminal street
gang.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
DATE PREPARED: 6/10/08 IMPACT ANALYSIS ON NEXT PAGE
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
12
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 274: STREET GANG SUPPRESSION ACT [v.5]
PCS 50886-RK-66
AMENDED: MAY 28, 2008
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
The proposed bill creates several new felony offenses relating to criminal street gangs and criminal gang
activity.
SECTION 2
G.S. 14-34.9. Discharging firearm from within an enclosure.
G.S. 14-34.9 makes it a Class E felony for a person to willfully or wantonly discharge or attempt to
discharge a firearm as a part of a pattern of criminal street gang activity from within any building,
structure, motor vehicle, or other conveyance, erection, or enclosure toward a person or persons not
within that enclosure. (See Section 3 below for definitions related to “pattern of criminal street gang
activity.”)
Since the proposed bill creates a new offense, the Sentencing Commission does not have any historical
data from which to estimate the impact of this bill on the prison population. It is not known how many
offenders might be sentenced under the proposed bill. In FY 2006/07, 53% of Class E convictions
resulted in active sentences, with an average estimated time served of 29 months. If, for example, there
were two Class E convictions under this proposed bill per year, the combination of active sentences and
probation revocations would result in the need for one additional prison bed the first year and three
additional prison beds the second year. In addition, since a period of Post-Release Supervision follows
release from prison for offenders convicted of Class B1-E felonies, there will be some impact on Post-
Release Supervision caseloads and prison beds due to revocations.
SECTION 3
G.S. 14-50.16. Pattern of criminal street gang activity.
Definitions
The definition of “pattern of criminal street gang activity” makes it unclear how some of the proposed
offenses would be charged and their convictions punished. The definition establishes the “pattern” only
after two convictions for offenses committed in furtherance of gang involvement and having the “same
or similar purposes, results,” etc. It is therefore unclear whether a “pattern” offense (e.g., G.S. 14-50.16)
would be charged and result in conviction only as a derivative of a third offense (committed after the
two convictions that established the pattern) or if a “pattern” offense could be charged and punished by
itself after the second conviction without a new, underlying offense. For purposes of this analysis, it
was assumed that the “pattern” offenses would be derivative to, and be charged and result in conviction
in concert with, a third offense committed after the two convictions required by G.S. 14-50.16(d).
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
13
Potential Pool: Descriptive Information
Due to limitations of the data available, it is not possible to determine who would qualify as a member
of a “criminal street gang.” It is possible to determine the potentially eligible felony and misdemeanor
convictions based on the proposed definition of “a pattern of criminal street gang activity.”1
In FY 2006/07 there were 31,711 felony convictions of which 30,276 convictions (or 95%) fell under
the statutes included in the proposed definition of “criminal street gang activity.”2 Of the 30,276 felony
convictions, 22,576 fell in Prior Record Level II or higher, indicating at least one prior conviction.3 Of
this potential pool, about 42% (n=9,457) received an active sentence with an average minimum sentence
of 30 months.
In FY 2006/07, there were 164,882 misdemeanor convictions of which 95,654 convictions (or 58%) fell
under the statutes included in the proposed definition of “criminal street gang activity.”4 Of the 95,654
misdemeanor convictions, 50,909 fell in Prior Conviction Level II or higher, indicating at least one prior
conviction.5 Of this eligible pool, about 30% (n=15,416) received an active sentence with an average
sentence length of about 49 days. Table 1 provides the offense class and average sentence imposed for
the potential pool.
1 The proposed definition of “pattern of criminal street gang activity” in the PCS requires prior convictions for at least two
prior incidents of “criminal street gang activity.” It is unclear from the bill whether proposed offenses based on a “pattern” of
activity may be charged and result in conviction immediately after the second conviction establishing the “pattern” is
obtained, or whether the “pattern” offense may be charged and result in conviction only as a derivative of a new (third)
offense, subsequent to the two prior convictions. For purposes of this analysis, it is assumed that the latter is required and that
conviction for the “pattern”-based offenses will occur only in conjunction with a third offense.
2 Convictions with life or death sentences (n=70) were excluded from the potential pool.
3 Because a “pattern of criminal street gang activity” requires that the offender have at least two prior convictions (not
necessarily from different sessions of court), every offender who commits a “pattern” offense will have at least one prior
conviction episode. Misdemeanants with at least one prior conviction episode must be sentenced in at least Prior Conviction
Level II, resulting in the pool of 50,909 convictions from FY 2006/07 to represent the pool of misdemeanants who may be
eligible for conviction of the proposed “pattern” offenses. The pool of convicted felons in Prior Record Level II or higher
(n=22,576) assumes that the prior convictions that may establish the “pattern” for those offenders included at least one felony
or Class A1 or Class 1 misdemeanor (any of which would result in at least one prior record level point, thus placing the
offender in Prior Record Level II). However, because the definition of “criminal gang activity” is not limited to felonies or
Class A1 or Class 1 misdemeanors, it is possible that an offender may establish a “pattern” of criminal gang activity solely by
commission and conviction of Class 2 or Class 3 misdemeanors, which result in no prior record level points. (The definition
of “criminal street gang” requires that the gang’s purpose include the commission of “felony offenses,” but that criterion does
not appear in the definitions of “criminal street gang activity” or a “pattern” thereof.) It is therefore possible for an offender
to be convicted of a “pattern” offense and still be sentenced in Prior Record Level I. It is not known how many of the 7,694
convicted felons in Prior Record Level I for FY 2006/07 also had at least two prior convictions for Class 2 or Class 3
misdemeanors and would therefore be eligible for conviction of the “pattern” offenses of the proposed bill.
4 See Footnote 1.
5 See Footnote 3.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
14
Table 1: Potential Pool (PRL/PCL II or Higher)
FY 2006/07
Offense Class Number of
Convictions
Average Minimum
Sentence Imposeda
B1 70 292 months
B2 184 183 months
C 872 95 months
D 501 78 months
E 782 34 months
F 1,416 24 months
G 3,350 18 months
H 8,658 10 months
I 6,743 7 months
Felony Subtotal 22,576 30 months
A1 8,228 86 days
1 20,204 58 days
2 13,696 31 days
3 8,781 16 days
Misdemeanor Subtotal 50,909 49 days
a The average minimum sentence imposed is based on the minimum sentence imposed by the judge in court. Unlike average
estimated time served, it does not take into account the percent of sentence served, consecutive sentencing, or credit for time
served.
Summary of Estimated Impact
Since G.S. 14-50.16 creates new offenses, the Sentencing Commission does not have any historical data
from which to estimate the impact of this bill on the prison population. It is not known how many
offenders might be sentenced under the proposed G.S. 14-50.16.
For purposes of this analysis, it was assumed that the offenses are derivative offenses that occur only as
the result of a “pattern of criminal street gang activity,” which means that they occur in conjunction with
some other offense listed in G.S. 14-50.16(c).
Of the 22,576 felony convictions in Prior Record Level II or higher, 15,833 (70%) were for Class B1
through H offenses and, therefore, may not result in additional prison impact with regard to the
derivative Class H offenses if the sentences are run concurrently with the companion offenses from G.S.
14-50.16(c). However, additional convictions for the derivative Class H offenses could result in
substantial impact if consecutive sentencing is applied. In FY 2006/07, the average minimum sentence
for Class H convictions was 10 months. Each Class B1 through H conviction to which consecutive
sentencing is applied under the proposed bill would increase the minimum sentence length by an
average of 10 months (see Table 1; e.g., Class B1 conviction with a Class H consecutive sentence would
be 302 months, Class B2 conviction with a Class H consecutive sentence would be 193 months, etc.).
The remaining 6,743 Class I felony convictions and the 50,909 misdemeanor convictions in the eligible
pool could result in substantial prison impact with regard to the derivative Class H offenses, given the
large number of potential convictions (n=57,652) affected. For the Class I felony convictions, additional
convictions for the new Class H offenses could result in an additional three months if the sentences are
run concurrently and an additional 10 months if the sentences are run consecutively. For the
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
15
misdemeanor convictions, additional convictions for the new Class H offenses could result in an
additional 8 months (based on the average of 49 days or almost two months) if the sentences are
concurrent and an additional 10 months if the sentences are consecutive.
The impact of the derivative Class F felony under G.S. 14-50.16(a) would depend on the offense class
for the companion offense and whether the sentences are run concurrently or consecutively.
G.S. 14-50.16(a)(1)
G.S. 14-50.16(a)(1) makes it a Class H felony for a person employed by or associated with a criminal
street gang to conduct or participate in a pattern of criminal gang activity. It is assumed for purposes of
this analysis that the “pattern of criminal street gang activity” may be charged and result in conviction
only as a derivative of a new (third) offense subsequent to the two prior convictions for criminal gang
activity, as described in the proposed G.S. 14-50.16(d). Convictions for the offense of subsection (a)(1)
therefore would occur in addition to convictions for other, companion offenses (both misdemeanor and
felony).
The impact of the derivative Class H offense on the prison population would depend on the offense class
for the companion offense and whether the sentences are run concurrently or consecutively (see above
Summary of Estimated Impact and Table 1).
��􈌠 For the 15,833 Class B1 through H convictions in the eligible pool, additional convictions for the
derivative Class H offenses may not result in additional prison impact if the sentences are run
concurrently, but could result in substantial impact if consecutive sentencing is applied.
􀂃􈌠 For the 6,743 Class I convictions and the 50,909 misdemeanor convictions in the eligible pool,
additional convictions for the derivative Class H offenses may result in additional prison impact.
The impact would vary depending on whether sentences are run concurrently or consecutively.
The following threshold analyses assume that sentences are run concurrently. However, the
impact would be greater if any sentences are run consecutively.
o If, for example, it is assumed that 509 misdemeanor convictions (1% of the potentially
eligible misdemeanor convictions) would result in a Class H conviction as the most
serious conviction under this proposal, the combination of active sentences and probation
revocations would result in the need for 152 additional prison beds the first year and 310
additional prison beds the second year.
o If, for example, it is assumed that 67 Class I convictions (1% of the potentially eligible
Class I convictions) would result in a Class H conviction as the most serious conviction
under this proposal, the combination of active sentences and probation revocations would
result in the need for 14 additional prison beds the first year and 21 additional prison beds
the second year.
G.S. 14-50.16(a)(2)
G.S. 14-50.16(a)(2) makes it a Class H felony for a person employed by or associated with a criminal
street gang to acquire or maintain any interest in or control of any real or personal property through a
pattern of criminal street gang activity. It is assumed for purposes of this analysis that the “pattern of
criminal street gang activity” may be charged and result in conviction only as a derivative of a new
(third) offense subsequent to the two prior convictions for criminal gang activity, as described in the
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
16
proposed G.S. 14-50.16(d). Convictions for the derivative offense of subsection (a)(2) therefore would
occur in addition to convictions for other, companion offenses (both misdemeanor and felony).
The impact of the derivative Class H offense on the prison population would depend on the offense class
for the companion offense and whether the sentences are run concurrently or consecutively (see above
Summary of Estimated Impact and Table 1).
􀂃􈌠 For the 15,833 Class B1 through H convictions in the eligible pool, additional convictions for the
derivative Class H offenses may not result in additional prison impact if the sentences are run
concurrently, but could result in substantial impact if consecutive sentencing is applied.
􀂃􈌠 For the 6,743 Class I convictions and the 50,909 misdemeanor convictions in the eligible pool,
additional convictions for the derivative Class H offenses may result in additional prison impact.
The impact would vary depending on whether sentences are run concurrently or consecutively.
The following threshold analyses assume that sentences are run concurrently. However, the
impact would be greater if any sentences are run consecutively.
o If, for example, it is assumed that 509 misdemeanor convictions (1% of the potentially
eligible misdemeanor convictions) would result in a Class H conviction as the most
serious conviction under this proposal, the combination of active sentences and probation
revocations would result in the need for 152 additional prison beds the first year and 310
additional prison beds the second year.
o If, for example, it is assumed that 67 Class I convictions (1% of the potentially eligible
Class I convictions) would result in a Class H conviction as the most serious conviction
under this proposal, the combination of active sentences and probation revocations would
result in the need for 14 additional prison beds the first year and 21 additional prison beds
the second year.
G.S. 14-50.16(a)
G.S. 14-50.16(a) makes it a Class F felony for a person employed by or associated with a criminal street
gang to conduct or participate in a pattern of criminal street gang activity as an organizer, supervisor, or
in any other position of management with regard to a criminal street gang. It is assumed for purposes of
this analysis that the “pattern of criminal street gang activity” may be charged and result in conviction
only as a derivative of a new (third) offense subsequent to the two prior convictions for criminal gang
activity, as described in the proposed G.S. 14-50.16(d). Convictions for the offense of subsection (a)
therefore would occur in addition to convictions for other, companion offenses (both misdemeanor and
felony).
The impact of the derivative Class F offense on the prison population would depend on the offense class
for the companion offense and whether the sentences are run concurrently or consecutively (see above
Summary of Estimated Impact and Table 1).
􀂃􈌠 For the 3,825 Class B1 through F convictions in the eligible pool, additional convictions for the
derivative Class F offense may not result in additional prison impact if the sentences are run
concurrently, but could result in substantial impact if consecutive sentencing is applied.
􀂃􈌠 For the 18,751 Class G through I convictions and the 50,909 misdemeanor convictions in the
eligible pool, additional convictions for the derivative Class F offense may result in additional
prison impact. The impact would vary depending on whether sentences are run concurrently or
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
17
consecutively. The following threshold analyses assume that sentences are run concurrently.
However, the impact would be greater if any sentences are run consecutively.
o If, for example, it is assumed that 509 misdemeanor convictions (1% of the potentially
eligible misdemeanor convictions) would result in a Class F conviction as the most
serious conviction under this proposal, the combination of active sentences and probation
revocations would result in the need for 263 additional prison beds the first year and 570
additional prison beds the second year.
o If, for example, it is assumed that 67 Class I convictions (1% of the potentially eligible
Class I convictions) would result in a Class F conviction as the most serious conviction
under this proposal, the combination of active sentences and probation revocations would
result in the need for 29 additional prison beds the first year and 55 additional prison beds
the second year.
o If, for example, it is assumed that 87 Class H convictions (1% of the potentially eligible
Class H convictions) would result in a Class F conviction as the most serious conviction
under this proposal, the combination of active sentences and probation revocations would
result in the need for 19 additional prison beds the first year and 45 additional prison beds
the second year.
o If, for example, it is assumed that 34 Class G convictions (1% of the potentially eligible
Class G convictions) would result in a Class F conviction as the most serious conviction
under this proposal, the combination of active sentences and probation revocations would
result in the need for 3 additional prison beds the first year and 9 additional prison beds
the second year.
G.S. 14-50.17. Soliciting; encouraging participation.
G.S. 14-50.17 makes it a felony for a person to cause, encourage, solicit, or coerce a person 16 years of
age or older to participate in criminal street gang activity. Violation of this section is a Class H felony.
Since G.S. 14-50.17 creates a new offense, the Sentencing Commission does not have any historical data
from which to estimate the impact of this bill on the prison population. It is not known how many
offenders might be sentenced under the proposed G.S. 14-50.17.
In FY 2006/07, 35% of Class H convictions resulted in active sentences, with an average estimated time
served of 10 months. If, for example, there were three Class H convictions under this proposed bill per
year, the combination of active sentences and probation revocations would result in the need for one
additional prison bed the first year and two additional prison beds the second year.
G.S. 14-50.18. Soliciting; encouraging participation; minor.
G.S. 14-50.18 makes it a felony for a person to cause, encourage, solicit, or coerce a person under 16
years of age to participate in criminal street gang activity. Violation of this section is a Class F felony.
Since G.S. 14-50.18 creates a new offense, the Sentencing Commission does not have any historical data
from which to estimate the impact of this bill on the prison population. It is not known how many
offenders might be sentenced under the proposed G.S. 14-50.18.
In FY 2006/07, 51% of Class F convictions resulted in active sentences, with an average estimated time
served of 20 months. If, for example, there were two Class F convictions under this proposed bill per
year, the combination of active sentences and probation revocations would result in the need for one
additional prison bed the first year and three additional prison beds the second year.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
18
G.S. 14-50.19. Threats to deter from gang withdrawal.
G.S. 14-50.19 makes it a Class H felony for a person to communicate a threat of injury to a person, or to
damage the property of another, with the intent to deter a person from assisting another to withdraw
from membership in a criminal street gang. Since G.S. 14-50.19 creates a new offense, the Sentencing
Commission does not have any historical data from which to estimate the impact of this bill on the
prison population. It is not known how many offenders might be sentenced under the proposed G.S. 14-
50.19.
Persons eligible for conviction of this offense may include some portion of those currently convicted of
the offenses listed below. The proposed offense does not encompass all conduct covered by the listed
offenses because of some differences in the elements of each (e.g., “communicating threats” requires
that the victim actually believe the threat may be carried out, which the proposed offense does not, but
the proposed offense applies only in the context of threats against those who help gang members defect).
Table 2: Persons Eligible for Conviction under G.S. 14-50.19
FY 2006/07
G.S. Description Class Number of
Convictions
14-16.7 Threats against executive, legislative or court officers I 5
14-196(a)(2) Threatening phone call 2 196
14-196.3 Cyberstalking6 2 18
14-277.1 Communicating threats 1 2,861
14-394 Anonymous or threatening letters, mailing or
transmitting7 1 No AOC code
14-127 Injury to real property 1 1,284
14-160 Injury to personal property 2,1 2,101
It is not known how many of the convictions in Table 2 would become Class H felonies under this
proposed subsection.
In FY 2006/07, 35% of Class H convictions resulted in active sentences, with an average estimated time
served of 10 months. If, for example, there were three Class H convictions under this proposed bill per
year, the combination of active sentences and probation revocations would result in the need for one
additional prison bed the first year and two additional prison beds the second year.
It is possible that convictions for this offense could be treated as separate offenses pursuant to G.S. 14-
50.21. In that case, convictions may not result in additional prison impact if the sentences are run
concurrently, but could result in substantial impact if consecutive sentencing is applied.
G.S. 14-50.20. Threats of punishment or retaliation.
6 The AOC has a single offense code for cyberstalking, which includes four distinct offenses. The proposed offense
encompasses only one of those four.
7 G.S. 14-394 prohibits several forms of threatening or harassing communications, including to corporate victims. Only
convictions reflecting communications to individuals would be eligible for conviction under the proposed offense. The AOC
currently does not have a specific offense code for violations of G.S. 14-394. The lack of an AOC offense code is some
indication that this offense is infrequently charged and/or infrequently results in convictions.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
19
G.S. 14-50.20 makes it a Class H felony for a person to communicate a threat of injury to a person, or to
damage the property of another, as punishment or retaliation against a person for having withdrawn from
a criminal street gang. Since G.S. 14-50.20 creates a new offense, the Sentencing Commission does not
have any historical data from which to estimate the impact of this bill on the prison population. It is not
known how many offenders might be sentenced under the proposed G.S. 14-50.20.
Persons eligible for conviction of this offense may include some portion of those currently convicted of
the offenses listed below. The proposed offense does not encompass all conduct covered by the listed
offenses because of some differences in the elements of each (see section 19, above).
Table 3: Persons Eligible for Conviction under G.S. 14-50.20
FY 2006/07
G.S. Description Class Number of
Convictions
14-16.7 Threats against executive, legislative or court officers I 5
14-196(a)(2) Threatening phone call 2 196
14-196.3 Cyberstalking8 2 18
14-277.1 Communicating threats 1 2,861
14-394 Anonymous or threatening letters, mailing or
transmitting9 1 No AOC code
14-127 Injury to real property 1 1,284
14-160 Injury to personal property 2,1 2,101
It is not known how many of the convictions in Table 3 would become Class H felonies under this
proposed section.
In FY 2006/07, 35% of Class H convictions resulted in active sentences, with an average estimated time
served of 10 months. If, for example, there were three Class H convictions under this proposed bill per
year, the combination of active sentences and probation revocations would result in the need for one
additional prison bed the first year and two additional prison beds the second year.
It is possible that convictions for this offense could be treated as separate offenses pursuant to G.S. 14-
50.21. In that case, convictions may not result in additional prison impact if the sentences are run
concurrently, but could result in substantial impact if consecutive sentencing is applied.
G.S. 14-50.22. Enhanced offense for criminal gang activity.
G.S. 14-50.22 enhances the sentence for a misdemeanor offense by one offense class if it was committed
for the benefit of, at the direction of, or in association with, any criminal street gang. Class A1
misdemeanors would be enhanced to Class I felonies under this provision.
8 The AOC has a single offense code for cyberstalking, which includes four distinct offenses. The proposed offense
encompasses only one of those four.
9 G.S. 14-394 prohibits several forms of threatening or harassing communications, including to corporate victims. Only
convictions reflecting communications to individuals would be eligible for conviction under the proposed offense. The AOC
currently does not have a specific offense code for violations of G.S. 14-394. The lack of an AOC offense code is some
indication that this offense is infrequently charged and/or infrequently results in convictions.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
20
In FY 2006/07 there were 164,882 misdemeanor convictions – 14,010 Class A1, 96,286 Class 1, 29,735
Class 2, and 24,851 Class 3 convictions. It is not known how many of these convictions involved an
offense committed for the benefit of, at the direction of, or in association with, any criminal street gang.
As such, it is not possible to determine how many convictions would be affected by this proposal or to
determine the impact of this proposal. However, enhancing a defendant’s sentence by raising it one
offense class higher than the class of the committed misdemeanor offense will, in general, increase the
defendant’s likelihood of receiving an active sentence and increase the chance of receiving a longer
sentence that would result in the need for additional jail and prison beds.
Any Class 1, Class 2, or Class 3 misdemeanor convictions that would be raised one offense class higher
(to Class A1, Class 1, or Class 2, respectively) could result in the need for additional jail beds (sentence
of 90 days or less) or prison beds (sentence greater than 90 days).
Any Class A1 misdemeanor convictions raised to Class I felony convictions would result in the need for
additional prison beds. In FY 2006/07, 16% of Class I convictions resulted in active sentences, with an
average estimated time served of 7 months.
􀂃􈌠 If, for example, there were 12 Class A1 misdemeanor convictions per year that were raised to
Class I felonies, the combination of active sentences and probation revocations would result in
the need for one additional prison bed the first year and four additional prison beds the second
year.
􀂃􈌠 If, for example, it is assumed that 140 Class A1 misdemeanor convictions (1% of Class A1
misdemeanor convictions) would be raised to Class I felonies, the combination of active
sentences and probation revocations would result in the need for 13 additional prison beds the
first year and 42 additional prison beds the second year.
SECTION 5
Section 5 amends G.S. 15A-1340.16A (the firearm enhancement) such that the minimum sentence
imposed upon conviction for a Class A, B1, B2, C, D, or E felony would be enhanced 60 months if the
offender committed the felony by using, displaying, or threatening the use or display of, and actually
possessed about his or her person, a deadly weapon. The enhancement would not apply if evidence of
the use, display, or threatened use or display of the deadly weapon is needed to prove an element of the
offense or if the person is not sentenced to active imprisonment. This new enhancement for deadly
weapons is not limited to gang-related offenses.
In FY 2006/07 the current firearm enhancement, as defined in G.S. 15A-1340.16A, was not applied to
any convictions. For this analysis, it was assumed that the proposed amendment to expand the
enhancement to deadly weapons would not affect the application of the enhancement as it exists under
current law.
In FY 2006/07, there were 3,552 Class A through E convictions.10 Of these convictions, 1,294 had a
deadly weapon-related conviction as the most serious conviction, and, therefore, would not be eligible
for the proposed deadly weapon enhancement. The identifiable eligible pool for the proposed
enhancement would be comprised of 375 convictions that had accompanying charges or additional
convictions for deadly weapon-related offenses. It is important to note that the eligible pool does not
10 The following were excluded from the Class A through Class E convictions: 1) 70 convictions that resulted in a life
without parole or death sentence (Class A, violent habitual felons, and Class B1 in PRL V or VI sentenced in the aggravated
range), and 2) 576 habitual felons who had a Class F through Class I felony as their most serious underlying conviction.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
21
include situations in which the use, display, or threatened use or display of a deadly weapon did not
result in separate charges or convictions.
It is not possible to estimate the impact of the proposed deadly weapon enhancement since it is not
known how many convictions in the eligible pool would receive the 60-month enhancement. The
proposed deadly weapon enhancement would result in additional prison impact for each conviction to
which it would be applied (see Table 4 for the offense class distribution and average sentence imposed
for the eligible pool). Short-term impact (i.e., within the 10-year projection period) would result from
the application of the proposed enhancement to Class C, D, and E convictions whose minimum
sentences are currently less than 10 years. Long-term impact (i.e., beyond the 10-year projection period)
would result from the application of the proposed enhancement to convictions whose minimum
sentences are currently greater than 10 years.
Table 4: Eligible Pool for Deadly Weapon Enhancement
FY 2006/07
Offense Class Number of
Convictions
Average Minimum
Sentence Imposed for
Active Sentences (Months)
B1 8 325
B2 93 172
C 84 102
D 47 69
E 143 30
Total 375 107
CURRENT LAW REGARDING CRIMINAL STREET GANG CONDUCT
G.S. 15A-1340.16(d) lists aggravating factors that can be applied to felony sentences under Structured
Sentencing. Under G.S. 15A-1340.16(d)(2a), it is an aggravating factor if:
The offense was committed for the benefit of, or at the direction of, any criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by
gang members, and the defendant was not charged with committing a conspiracy. A
“criminal street gang” means any ongoing organization, association, or group of three or
more persons, whether formal or informal, having as one of its primary activities the
commission of felony or violent misdemeanor offenses, or delinquent acts that would be
felonies or violent misdemeanors if committed by an adult, and having a common name
or common identifying sign, colors, or symbols.
The Administrative Office of the Courts’ Automated Criminal Infraction System does not contain data
on the application of aggravating or mitigating factors, so it is not known how often this factor is
currently used.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
22
GANG DATA FROM THE DEPARTMENT OF CORRECTION11
Since 1996, the Division of Prisons (DOP) has been using procedures to monitor and identify inmates
who are members of gangs. In July 2005, the Division of Community Corrections (DCC) adopted
DOP’s procedures for identifying gang members. This information is maintained in the Department of
Correction’s (DOC’s) management information system (OPUS).
Note: In North Carolina, offenders sentenced to active terms of greater than 90 days are incarcerated in
the state prison system, while offenders who are sentenced to active terms of 90 days or less are
incarcerated in county jail. Currently, each jail maintains its own data and there is not a statewide
automated jail data system. As such, comparable information is not available regarding inmates in
county jails who are gang members.
Current Prison and Probation Populations: May 24, 2008
On May 24, 2008, there were 30,172 felons and 1,610 misdemeanants sentenced under the Structured
Sentencing Act in North Carolina’s prison system. Of these 30,172 inmates, 2,172 (7%) were identified
as gang affiliated. Of the 2,172 gang affiliated inmates, 70% were Class A-E felons, 16% were Class F-G
felons, 13% were Class H-I felons, and approximately 1% were misdemeanants. Of these inmates,
1,541 (71%) were in Prior Record/Conviction Level II or higher.
On May 24, 2008, there were 37,999 felons and 51,559 misdemeanants sentenced under the Structured
Sentencing Act who were under the supervision of DCC. Of these 89,558 offenders supervised in the
community, 667 (0.7%) were identified as gang affiliated. Of the 667 gang affiliated offenders, 48%
were felons and 52% were misdemeanants. Of these offenders, 371 (56%) were in Prior
Record/Conviction Level II or higher.
Prison and Probation Entries: FY 2005/06
In FY 2005/06, there were 17,296 felony and 6,258 misdemeanor prison entries for offenders sentenced
under the Structured Sentencing Act. Of these 23,554 prison entries, 808 (3%) were identified as gang
affiliated. Of the 808 gang affiliated prison entries, 31% were Class A-E felons, 25% were Class F-G
felons, 35% were Class H-I felons, and 9% were misdemeanants. Of these prison entries, 587 (73%)
were in Prior Record/Conviction Level II or higher.
In FY 2005/06, there were 18,519 felony and 34,969 misdemeanor probation entries for offenders
sentenced under the Structured Sentencing Act. Of these 53,448 probation entries, 401 (0.7%) were
identified as gang affiliated. Of the 401 gang affiliated probation entries, 24% were Class A-E felons,
8% were Class F-G felons, 25% were Class H-I felons, and 43% were misdemeanants. Of these
probation entries, 194 (48%) were in Prior Record/Conviction Level II or higher.
11 The data provided in this section is based on a statistical memo prepared by the Department of Correction’s Office of
Research and Planning at the Sentencing Commission’s request.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
23
ADDITIONAL YOUTH DEVELOPMENT CENTER POPULATION ABOVE THAT
PROJECTED UNDER THE JUVENILE CODE
Juvenile Eligibility for “Pattern” Gang Offenses
As with the adult impact analysis, the eligibility for adjudication of a “pattern” offense assumes that the
pattern offense would be charged and eligible for adjudication only as a derivative offense to a separate
(third) offense that occurred after the two prior offenses that established the pattern.
However, it is unclear whether juveniles would be eligible for the “pattern” offenses in the bill at all.
The current definition of a “pattern of criminal street gang activity” (G.S. 14-50.16(d)) requires two
prior incidents of criminal street gang activity that resulted in “conviction.” For a juvenile still within
the jurisdiction of the juvenile court, prior offenses could have resulted only in “adjudication” as a
delinquent. Per G.S. 7B-2412, prior adjudication as a delinquent “shall [not] be considered conviction of
any criminal offense... .”
Juvenile Dispositions and Consolidated Sentencing
Where the adult prison impact analysis of this bill addressed consolidated versus consecutive sentencing,
the juvenile YDC impact analysis does not. If a juvenile is adjudicated of more than one offense during
a session of juvenile court, the court must consolidate the offenses for disposition and impose a single
disposition for the consolidated offenses. The disposition must be specified for the class of offense and
delinquency history level of the most serious offense.
Transfers to Superior Court
A juvenile 13 or older charged with any felony may be transferred to Superior Court for trial as an adult.
Because all of the substantive offenses in the bill are felonies, expanding the bill’s pool of potential
offenders to include juveniles would permit transfer to Superior Court for any juvenile 13 or older
charged with any of the substantive felonies in the bill. This is true even for the “pattern” offenses in the
bill when the accompanying third offense (after the two priors that establish the pattern) is a
misdemeanor, because the pattern offenses are all separate substantive felonies (G.S. 14-50.21).
However, it is not known how many juveniles would be transferred due to this bill and, therefore, it is
not possible to project the impact of transferred cases.12 This analysis assumes none of these cases
would be transferred to Superior Court.
Pattern of Criminal Street Gang Activity
Potential Pool: Descriptive Information
In FY 2006/07, there were 7,973 juvenile delinquent dispositions extracted from NC-JOIN, the
management information system of the Department of Juvenile Justice and Delinquency Prevention. Of
the 7,973 delinquent dispositions, 2,822 (or 35%) had a current adjudication for one of the offenses
included in the proposed definition of “criminal street gang activity” and had one or more prior
12 It is also unclear whether the analysis for adult impact of the PCS, which assumed Prior Record Level II or higher for the
pool of potential offenders under the “pattern” offenses, would be applicable to transferred juveniles. Because offenses for
which a juvenile was adjudicated delinquent cannot be counted for prior record points in felony sentencing, juveniles
transferred for offenses under the bill would be highly unlikely to have prior adult criminal convictions, and therefore would
be sentenced in Prior Record Level I.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
24
delinquency history points, indicating at least one prior delinquent adjudication and, thus, providing
some indication of a “pattern of criminal street gang activity.”13 (See Table 1.)
In FY 2006/07, 963 (or 12%) of the 7,973 cases were identified as juveniles that either associated with a
gang or were a gang member. This data is based on the information entered into NC-JOIN from the
Risk Assessment and is self-reported by the juvenile or by a responsible adult.14 These 963 “gang
association” cases are the closest representation to the bill’s definition of “criminal street gang” that the
data provide (see Table 1).
Of the 963 “gang association” cases, 440 had a current adjudication for one of the offenses included in
the proposed definition of “pattern of criminal street gang activity” and one or more prior delinquency
history points, indicating at least one prior delinquent adjudication. Overall, this group was more
serious and/or criminally persistent in terms of offense level and delinquency history level compared to
the 7,973 delinquent dispositions in FY 2006/07. As a result, a higher proportion of this group was
committed to a YDC relative to the overall group of juveniles. (See Table 1.)
Table 1: Description of the Potential Pool of Delinquent Dispositions for Juveniles
FY 2006/07
Identified with a Gang Association
Total Dispositions
Adjudicated for
an Eligible
Offense & at
Least One Prior
Adjudication*
Total Dispositions
Adjudicated for
an Eligible
Offense & at
Least One Prior
Adjudication*
(n=7,973) (n=2,822) (n=963) (n=440)
# % # % # % # %
Offense Classification
Violent
Class A-E Fel. 249 3.1 113 4.0 55 5.7 35 7.9
Serious
Class F-I Fel, Class A1 Misd 2,414 30.3 911 32.3 351 36.5 167 38.0
Minor
Class 1-3 Misd. 5,310 66.6 1,798 63.7 557 57.8 238 54.1
Delinquency History Level
Low
0-1 Points 5,781 72.5 927* 32.9 553 57.4 100* 22.7
Medium
2-3 Points 1,159 14.5 1,030 36.5 170 17.7 153 34.8
High
4+ Points 1,033 13.0 865 30.6 240 24.9 187 42.5
Disposition Level
13 The proposed definition of “pattern of criminal street gang activity” refers to a sequence of “offenses.” For this analysis, it
is assumed that “offenses” mean “adjudications” and the juvenile is eligible at the time he or she is adjudicated for their third
offense. Note that information about the specific prior adjudicated offenses was not available. Although most criminal
offenses are covered in the definition of “a pattern of criminal street gang activity,” it is possible that the group includes cases
with a prior adjudication involving offenses that fall outside the definition.
14 The Risk Assessment’s definition of the term “gang” is broader than the definition under the proposed bill. For purposes
of evaluating peer relationships, the Risk Assessment defines a gang as “an organized, recognized group which has illegal
activity as part of its purpose.” (Source: Risk and Needs Assessment Procedures, DJJDP)
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
25
Level 1
Community 5,568 69.8 1,430 50.7 525 54.5 172 39.1
Level 2
Intermediate 2,149 27.0 1,205 42.7 332 34.5 192 43.6
Level 3
Commitment (YDC) 256 3.2 187 6.6 106 11.0 76 17.3
SECTION 2
G.S. 14-34.9. Discharging firearm from within an enclosure.
G.S. 14-34.9 makes it a Class E felony for a person to willfully or wantonly discharge or attempt to
discharge a firearm as a part of a pattern of criminal street gang activity from within any building,
structure, motor vehicle, or other conveyance, erection, or enclosure toward a person or persons not
within that enclosure. Juveniles who violated the proposed section would be adjudicated of a Class E
(Violent level) offense.
Since this is a new offense, the Sentencing Commission does not have any historical data with which to
estimate the impact of this proposed section on the YDC population.
Of the 440 “gang association” delinquent dispositions that met the “pattern of criminal street gang
activity” criteria and had one or more prior delinquency history points, 35 (or almost 8%) were
adjudicated with a Violent level (Class A through Class E) offense. Of the 35 cases, the delinquency
history level distribution was as follows: 5 (14%) Low; 10 (29%) Medium; and 20 (57%) High.
Seventy-one percent (n=25) were committed to a YDC as a result of their current adjudication. In FY
2006/07, the average length of stay in a YDC for juveniles adjudicated delinquent with a Violent level
offense was 17.2 months.
SECTION 3
Summary of Estimated Impact
The offenses under section G.S. 14-50.16 are derivative offenses that occur only as the result of a
“pattern of criminal street gang activity,” which means that they occur in conjunction with some other
offense listed in G.S. 14-50.16(c). The text for individual subsections below gives the potential YDC
impact of each provision based on its status as a derivative offense.
For G.S. 14-50.16(a)(1), G.S. 14-50.16(a)(2), and G.S. 14-50.16(a), YDC impact analyses was
completed. By using the Risk Assessment data in NC-JOIN, an eligible pool (n=440) was identified
with a “gang association.” This pool also had a “pattern of criminal street gang activity” (see
Descriptive Information section for details). The impact of the derivative Class H or Class F (Serious
level) offense on the YDC population would depend on the offense level for the companion offense.
The shift from Minor offense level (Class 1 through Class 3 offenses) to Serious offense level is where
the YDC impact occurs. Table 2 provides a summary of YDC impact for subsections (a)(1), (a)(2) and
(a).
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
26
Table 2: Summary of Additional YDC Population Above that Projected
Fiscal Year
G.S. 14-50.16(a)(1)
Reclassify Minor to
Serious (Class H)
G.S. 14-50.16(a)(2)
Reclassify Minor to
Serious (Class H)
G.S. 14-50.16(a)
Reclassify Minor to
Serious (Class F)
Year 1 37 37 37
Year 2 43 43 43
Year 3 37 37 37
Year 4 42 42 42
Year 5 42 42 42
NOTES:
1. Assumes effective for crimes committed on or after 12/1/2008. Based on this effective date, Fiscal Year
2009/10 would represent the first full year of impact.
2. Assumes no changes in judicial or prosecutorial behavior.
3. Assumes no deterrent or incapacitative effects.
The estimated YDC impact for the stand-alone offenses in G.S. 14-50.17-20 is unknown. Of the 7,973
juvenile delinquent dispositions, 2,414 (or 30%) were adjudicated with a Serious level (Class F through
Class A1) offense. Six percent (n=155) were committed to a YDC as a result of their current
adjudication. In FY 2006/07, the average length of stay in a YDC for juveniles adjudicated delinquent
with a Serious level offense was 11.5 months. The commitment rate for juveniles adjudicated with a
Minor level offense is lower than juveniles adjudicated with a Serious level offense; therefore, YDC
impact is expected.
G.S. 14-50.16. Pattern of criminal street gang activity.
G.S. 14-50.16(a)(1)
G.S. 14-50.16(a)(1) makes it a Class H felony for a person employed by or associated with a criminal
street gang to conduct or participate in a pattern of criminal gang activity. A juvenile adjudicated for
this offense would be disposed in the Serious offense level.
It is assumed for purposes of this analysis that “gang association” data extracted from NC-JOIN
indicates “criminal street gang.” It also assumed that the “pattern of criminal street gang activity” may
be prosecuted and adjudicated only as a derivative of a new (third) offense subsequent to the two prior
adjudications for criminal gang activity, as described in the proposed G.S. 14-50.16(d). Adjudications
for the offense in subsection (a)(1), therefore, would occur in addition to adjudications for other,
companion offenses (both misdemeanor and felony).
The eligible pool used to determine the impact on the YDC population is the 440 cases identified with a
“gang association” and a “pattern of criminal street gang activity.” (See Table 1 for descriptive
information.)
Because juvenile offenses are consolidated for disposition, the impact of the derivative Class H (Serious
level) offense on the YDC population would depend on the offense level for the companion offense.
Therefore, the shift from Minor offense level (Class 1 through Class 3 offenses) to Serious offense level
is where the YDC impact would occur.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
27
��􈌠 For the 35 Violent level (Class A through Class E) cases adjudicated delinquent in the eligible pool,
additional delinquent adjudications for the derivative Serious (Class H) offense may not result in
additional YDC impact.
􀂃􈌠 For the 167 Serious Level (Class F through Class A1) cases adjudicated delinquent in the eligible
pool, additional delinquent adjudications for the derivative Serious (Class H) offense may not result
in additional YDC impact. 15
􀂃􈌠 For the 235 Minor level (Class 1 through Class 3) offenses that would be reclassified as the
derivative Serious level (Class H) offense, the projected YDC impact is shown in Table 3.
Table 3: Reclassify Minor Level to Serious Level (Class H)
Fiscal Year Additional YDC Population
Above That Projected
Year 1 37
Year 2 43
Year 3 37
Year 4 42
Year 5 42
NOTES:
1. Assumes effective for crimes committed on or after 12/1/2008. Based on
this effective date, Fiscal Year 2009/10 would represent the first full year
of impact.
2. Assumes no changes in judicial or prosecutorial behavior.
3. Assumes no deterrent or incapacitative effects.
G.S. 14-50.16(a)(2)
G.S. 14-50.16(a)(2) makes it a Class H felony for a person employed by or associated with a criminal
street gang to acquire or maintain any interest in or control of any real or personal property through a
pattern of criminal street gang activity. A juvenile adjudicated for this offense would be disposed in the
Serious offense level.
The derivative offense of subsection (a)(2) requires a “pattern of criminal street gang activity.” It is
assumed for purposes of this analysis that “gang association” data extracted from NC-JOIN indicates
criminal gang activity. It also assumed that the “pattern of criminal street gang activity” may be
prosecuted and adjudicated only as a derivative of a new (third) offense subsequent to the two prior
adjudications for criminal gang activity, as described in the proposed G.S. 14-50.16(d). Adjudications
for the offense in subsection (a)(2), therefore, would occur in addition to adjudications for other,
companion offenses (both misdemeanor and felony).
15 The YDC simulation model, which uses YDC length of stay and disposition levels, is based on the offense level, not the
offense class. Therefore, the 68 Class I and Class A1 delinquent dispositions would show no impact based on the proposed
amendment, but could result in YDC impact if the judge chooses the more serious disposition level because of the higher
offense class.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
28
The eligible pool used to determine the impact on the YDC population is the 440 cases identified with a
“gang association” and a “pattern of criminal street gang activity.” (See Table 1 for descriptive
information.)
Because juvenile offenses are consolidated for disposition, the impact of the derivative Class H (Serious
level) offense on the YDC population would depend on the offense level for the companion offense.
Therefore, the shift from Minor offense level (Class 1 through Class 3 offenses) to Serious offense level
is where the YDC impact would occur.
􀂃􈌠 For the 35 Violent level (Class A through Class E) cases adjudicated delinquent in the eligible pool,
additional delinquent adjudications for the derivative Serious (Class H) offense may not result in
additional YDC impact.
􀂃􈌠 For the 167 Serious Level (Class F through Class A1) cases adjudicated delinquent in the eligible
pool, additional delinquent adjudications for the derivative Serious (Class H) offense may not result
in additional YDC impact. 16
􀂃􈌠 For the 235 Minor level (Class 1 through Class 3) offenses that would be reclassified as the
derivative Serious level (Class H) offense, the projected YDC impact is shown in Table 4.
Table 4: Reclassify Minor Level to Serious Level (Class H)
Fiscal Year Additional YDC Population
Above That Projected
Year 1 37
Year 2 43
Year 3 37
Year 4 42
Year 5 42
NOTES:
1. Assumes effective for crimes committed on or after 12/1/2008. Based on
this effective date, Fiscal Year 2009/10 would represent the first full year
of impact.
2. Assumes no changes in judicial or prosecutorial behavior.
3. Assumes no deterrent or incapacitative effects.
G.S. 14-50.16(a)
G.S. 14-50.16(a) makes it a Class F felony for a person employed by or associated with a criminal street
gang to conduct or participate in a pattern of criminal street gang activity as an organizer, supervisor, or
in any other position of management with regard to a criminal street gang.
16 The YDC simulation model, which uses YDC length of stay and disposition levels, is based on the offense level, not the
offense class. Therefore, the 68 Class I and Class A1 delinquent dispositions would show no impact based on the proposed
amendment, but could result in YDC impact if the judge chooses the more serious disposition level because of the higher
offense class.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
29
Since there are no data available to identify a person who acts as an organizer, supervisor, or in any
other position of management with regard to a criminal street gang, the eligible pool used to determine
the impact on the YDC population is the 440 cases identified with a “gang association” and a “pattern of
criminal street gang activity.” (See Table 1 for descriptive information.)
Because juvenile offenses are consolidated for disposition, the impact of the derivative Class F (Serious
level) offense on the YDC population would depend on the offense level for the companion offense.
Therefore, the shift from Minor offense level (Class 1 through Class 3 offenses) to Serious offense level
is where the YDC impact would occur.
􀂃􈌠 For the 35 Violent level (Class A through Class E) cases adjudicated delinquent in the eligible pool,
additional delinquent adjudications for the derivative Serious (Class F) offense may not result in
additional YDC impact.
􀂃�� For the 167 Serious Level (Class F through Class A1) cases adjudicated delinquent in the eligible
pool, additional delinquent adjudications for the derivative Serious (Class F) offense may not result
in additional YDC impact. 17
􀂃􈌠 For the 235 Minor level (Class 1 through Class 3) offenses that would be reclassified as the
derivative Serious level (Class F) offense, the projected YDC impact is shown in Table 5.
Table 5: Reclassify Minor Level to Serious Level (Class F)
Fiscal Year Additional YDC Population
Above That Projected
Year 1 37
Year 2 43
Year 3 37
Year 4 42
Year 5 42
NOTES:
1. Assumes effective for crimes committed on or after 12/1/2008. Based on
this effective date, Fiscal Year 2009/10 would represent the first full year
of impact.
2. Assumes no changes in judicial or prosecutorial behavior.
3. Assumes no deterrent or incapacitative effects.
G.S. 14-50.17. Soliciting; encouraging participation.
G.S. 14-50.17 makes it a Class H (Serious Level) felony for a person to cause, encourage, solicit, or
coerce a person 16 years of age or older to participate in criminal street gang activity. This is a stand-alone
offense, and does not require a prior pattern of criminal street gang activity.
17 The YDC simulation model which uses YDC length of stay and disposition levels is based on the offense level, not the
offense class. Therefore, the 162 Class G through Class A1 delinquent dispositions would show no impact based on the
proposed amendment, but could result in YDC impact if the judge chooses the more serious disposition level because of the
higher offense class.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
30
It should be noted that there is no requirement that the person solicited be younger than the offender.
Therefore, for example, a juvenile 15 years old would be eligible for adjudication for the Class H
(Serious level) version of this offense for soliciting participation in gang activity for a 17-year old.
The Sentencing Commission does not have any historical data with which to estimate the impact of this
amendment on the YDC population.
Of the 7,973 juvenile delinquent dispositions in FY 2006/07, 2,414 (or 30%) were adjudicated with a
Serious level (Class F through Class A1) offense. Of the 2,414 cases, the delinquency history level
distribution is as follows: 1,528 (63%) Low; 408 (17%) Medium; and 478 (20%) High. Six percent
(n=155) were committed to a YDC as a result of their current adjudication. In FY 2006/07, the average
length of stay in a YDC for juveniles adjudicated delinquent with a Serious level offense was 11.5
months.
G.S. 14-50.18. Soliciting; encouraging participation; minor.
G.S. 14-50.18 makes it a Class F (Serious Level) felony for a person to cause, encourage, solicit, or
coerce a person under 16 years of age to participate in criminal street gang activity. This is a stand-alone
offense, and does not require a prior pattern of criminal street gang activity.
It should be noted that there is no requirement that the person solicited be younger than the offender.
Therefore, for example, a juvenile 12 years old would be eligible for adjudication for the Class F
(Serious level) version of this offense for soliciting participation in gang activity for a 15-year old.
The Sentencing Commission does not have any historical data with which to estimate the impact of this
amendment on the YDC population.
Of the 7,973 juvenile delinquent dispositions in FY 2006/07, 2,414 (or 30%) were adjudicated with a
Serious level (Class F through Class A1) offense. Of the 2,414 cases, the delinquency history level
distribution is as follows: 1,528 (63%) Low; 408 (17%) Medium; and 478 (20%) High. Six percent
(n=155) were committed to a YDC as a result of their current adjudication. In FY 2006/07, the average
length of stay in a YDC for juveniles adjudicated delinquent with a Serious level offense was 11.5
months.
G.S. 14-50.19. Threats to deter from gang withdrawal.
G.S. 14-50.19 makes it a Class H (Serious level) felony for a person to communicate a threat of injury to
a person, or to damage the property of another, with the intent to deter a person from assisting another to
withdraw from membership in a criminal street gang. This is a stand-alone offense, and does not require
a prior pattern of criminal street gang activity.
Juveniles eligible for adjudication of this offense may include some portion of those currently
adjudicated of the offenses listed in Table 6. The proposed offense does not encompass all conduct
covered by the listed offenses because of some differences in the elements of each (e.g.,
“communicating threats” requires that the victim actually believe the threat may be carried out, which
the proposed offense does not, but the proposed offense applies only in the context of threats against
those who help gang members defect).
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
31
Table 6: Juveniles Eligible for Adjudication under G.S. 14-50.19
FY 2006/07
G.S. Description Class Number of
Adjudications
14-196(a)(2) Threatening phone call 2 2
14-196.3 Cyberstalking 2 5
14-277.1 Communicating threats 1 280
14-394 Anonymous or threatening letters, mailing or
transmitting 1 0
14-127 Injury to real property 1 336
14-160 Injury to personal property 2 96
14-106(b) Injury to personal property in excess of $200 1 193
It is not known how many of the adjudications in Table 6 would become Class H (Serious level) felonies
under the proposed offense or how many additional adjudications may result from this offense.
Of the 7,973 juvenile delinquent dispositions in FY 2006/07, 2,414 (or 30%) were adjudicated with a
Serious level (Class F through Class A1) offense. Of the 2,414 cases, the delinquency history level
distribution is as follows: 1,528 (63%) Low; 408 (17%) Medium; and 478 (20%) High. Six percent
(n=155) were committed to a YDC as a result of their current adjudication. In FY 2006/07, the average
length of stay in a YDC for juveniles adjudicated delinquent with a Serious level offense was 11.5
months.
G.S. 14-50.20. Threats of punishment or retaliation.
G.S. 14-50.20 makes it a Class H felony for a person to communicate a threat of injury to a person, or to
damage the property of another, as punishment or retaliation against a person for having withdrawn from
a criminal street gang. This is a stand-alone offense, and does not require a prior pattern of criminal
street gang activity.
Juveniles eligible for adjudication of this offense include some portion of those currently adjudicated of
the offenses listed in Table 7. The proposed offense does not encompass all conduct covered by the
listed offenses because of some differences in the elements of each (see G.S. 14-50.19, above).
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
32
Table 7: Juveniles Eligible for Adjudication under G.S. 14-50.20
FY 2006/07
G.S. Description Class Number of
Adjudications
14-196(a)(2) Threatening phone call 2 2
14-196.3 Cyberstalking 2 5
14-277.1 Communicating threats 1 280
14-394 Anonymous or threatening letters, mailing or
transmitting 1 0
14-127 Injury to real property 1 336
14-160 Injury to personal property 2 96
14-106(b) Injury to personal property in excess of $200 1 193
It is not known how many of the adjudications in Table 7 would become Class H (Serious level) felonies
under the proposed offense or how many additional adjudications may result from this offense.
Of the 7,973 juvenile delinquent dispositions in FY 2006/07, 2,414 (or 30%) were adjudicated with a
Serious level (Class F through Class A1) offense. Of the 2,414 cases, the delinquency history level
distribution is as follows: 1,528 (63%) Low; 408 (17%) Medium; and 478 (20%) High. Six percent
(n=155) were committed to a YDC as a result of their current adjudication. In FY 2006/07, the average
length of stay in a YDC for juveniles adjudicated delinquent with a Serious level offense was 11.5
months.
G.S. 14-50.22. Enhanced offense for criminal gang activity.
G.S. 14-50.22 enhances the sentence for a misdemeanor offense by one offense class if it was committed
for the benefit of, at the direction of, or in association with, any criminal street gang. Class A1
misdemeanors would be enhanced to Class I felonies under this provision.
Juvenile Impact
Juveniles adjudicated delinquent for Class 2 or 3 misdemeanors committed for gang purposes still would
be disposed in the Minor offense level. Juveniles adjudicated for Class A1 misdemeanors still would be
disposed in the Serious offense level when enhanced to Class I. The only juvenile dispositions that
would be affected by this provision are those for adjudication of Class 1 misdemeanors (Minor offense
level) that would be reclassified to Class A1 misdemeanors (Serious offense level) for disposition.
Table 8 provides a summary of the juveniles adjudicated delinquent with a misdemeanor offense in FY
2006/07. Under the proposed enhancement, some portion of 2,936 Class 1 (Minor level) offenses from
the 7,973 delinquent dispositions may increase to a Class A1 (Serious level) offense if the offense was
committed for the benefit of, at the direction of, or in association with, any criminal street gang.
If the enhancement is strictly interpreted to require street gang involvement, as defined in G.S. 14-50.16,
then some portion of the 278 Class 1 (Minor level) offenses from the 963 identified “gang association”
delinquent dispositions may increase to a Class A1 (Serious level) offense if the offense was committed
for the benefit of, at the direction of, or in association with, any criminal street gang.
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor
Simulation Data; FY 2006/07 Delinquent Disposition Simulation Data.
33
Table 8: Potential Misdemeanors Enhanced One Offense Class Higher
FY 2006/07
Dispositions
Dispositions
with Gang
Current Class Association
(n=7,973) (n=963)
Class A1 798 82
Class 1 2,936 278
Class 2 2,102 236
Class 3 438 43
Total 6,274 639
It is not known how many of Class 1 (Minor level) offenses listed in Table 8 involved an offense
committed for the benefit of, at the direction of, or in association with, any criminal street gang and
would become Class A1 (Serious level) offenses. Therefore, YDC impact is not known.
Of the 7,973 juvenile delinquent dispositions in FY 2006/07, 2,414 (or 30%) were adjudicated with a
Serious level (Class F through Class A1) offense. Of the 2,414 cases, the delinquency history level
distribution is as follows: 1,528 (63%) Low; 408 (17%) Medium; and 478 (20%) High. Six percent
(n=155) were committed to a YDC as a result of their current adjudication. In FY 2006/07, the average
length of stay in a YDC for juveniles adjudicated delinquent with a Serious level offense was 11.5
months.
Transfers
Currently, juveniles charged with misdemeanors cannot be transferred to the Superior Court for trial as
adults. It is not clear whether the enhancement of Class A1 misdemeanors to Class I felonies under this
provision would permit juveniles 13 and older and charged with Class A1 misdemeanors to be
transferred. The bill does not specify whether the gang element must be pled in the juvenile petition and
probable cause found, and therefore whether a Class A1 misdemeanor committed for gang purposes
would be treated as a substantive Class I felony for the purpose of eligibility for transfer. (See, e.g., State
v. Jones, 358 N.C. 473 (2004) (possession of cocaine, a Class 1 misdemeanor under G.S. 90-95(d)(2)
that is “punishable as a Class I felony,” is actually a substantive Class I felony)).
SECTION 5
Section 5 amends G.S. 15A-1340.16A (the firearm enhancement) to include any deadly weapon. The
minimum sentence imposed upon conviction for a Class A, B1, B2, C, D, or E felony would be
enhanced 60 months if the juvenile committed the felony by using, displaying, or threatening the use or
display of, and actually possessed about his or her person, a firearm or other deadly weapon. The
enhancement would not apply if evidence of the use, display, or threatened use or display of the firearm
or deadly weapon is needed to prove an element of the offense or if the person is not sentenced to active
imprisonment. This new enhancement for deadly weapons is not limited to gang-related offenses.
It is not possible to estimate the YDC impact of the proposed deadly weapon enhancement since it is not
known how many juveniles in the eligible pool would receive the 60-month enhancement. It is also not
known how the proposed deadly weapon enhancement would be applied. In FY 2006/07, the average
age of juveniles adjudicated delinquent was 14 years with an average YDC length of stay of 12.5
SOURCES: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data; FY 2006/07 Delinquent Disposition Simulation Data.
34
months. Most juveniles would “age out” of the juvenile system before the applied weapons
enhancement could be completed.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
35
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 517 – FLEEING ACCIDENT SCENE/INCREASE
PENALTY [V.3]
STATUTE
§ 20-166. Duty to stop in event of accident or collision; furnishing information or assistance to injured
person, etc.; persons assisting exempt from civil liability.
DESCRIPTION
A driver of a vehicle
1. knows or reasonably should know
2. that the vehicle which he or she is operating is involved in an accident or collision; and
3. that the accident or collision has resulted in death or serious bodily injury as defined in G.S. 14-
32.4(a).
PROPOSED OFFENSE CLASS
Class G felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from the person or from the person’s dwelling as Class G felonies.
The offense currently makes it a Class H felony if the accident or collision resulted in injury or death.
The Class H felony would remain to cover accidents or collisions that result in injury.
This provision is identical to a provision in HB 517 [v.1] which the Commission reviewed in March,
2007, except that it was proposed as a Class F felony. The Commission found that provision to be
consistent with the Offense Classification Criteria for a Class F felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
A Class G felony tends to result in serious property loss from the person or from the person’s dwelling.
This offense does not result in serious property loss from the person or the person’s dwelling. This
offense would be consistent with a Class F felony. The Sentencing Commission classified offenses
which reasonably tend to result or do result in significant personal injury or serious societal injury as
Class F felonies.
DATE PREPARED: 6/10/08 IMPACT ANALYSIS ON NEXT PAGE
SOURCE: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data.
36
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 517: FLEEING ACCIDENT SCENE/INCREASE PENALTY. (PCS)
PREPARED: JUNE 4, 2008
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED
SENTENCING
G.S. 20-166(a) currently makes it a Class H felony for the driver of a vehicle to willfully leave the scene
of an accident if the driver knows or reasonably should know that the vehicle which he or she is
operating is involved in an accident or collision and that the accident or collision has resulted in injury
or death to any person. This bill would keep the offense as a Class H felony if it resulted in injury and
make it a Class G felony if any person suffers serious bodily injury (as defined by G.S. 14-32.4(a)) or
death.
In FY 2006/07, there were 98 Class H felony convictions for violations of G.S. 20-166(a). It is not
known how many of these convictions would become Class G felony convictions under the proposed
bill. Therefore, the impact on the prison population is not known. Impact on the prison population
would result from the higher percentage of active sentences imposed and longer sentence lengths for
Class G felonies. In FY 2006/07, 35% of Class H convictions resulted in active sentences (with an
average estimated time served of 10 months), while 41% of Class G convictions resulted in active
sentences (with an average estimated time served of 16 months). If, for example, there were three Class
H convictions per year that would become Class G convictions under this proposed bill, this would
result in the need for one additional prison bed the first year and one additional prison bed the second
year.
The following scenarios were prepared based on a request by Fiscal Research staff:
If, for example, 10% (or 10) of the 98 Class H convictions would become Class G convictions
under this proposed bill, this would result in the need for two additional prison beds the first year
and two additional prison beds the second year.
If, for example, 15% (or 15) of the 98 Class H convictions would become Class G convictions
under this proposed bill, this would result in the need for two additional prison beds the first year
and three additional prison beds the second year.
If, for example, 20% (or 20) of the 98 Class H convictions would become Class G convictions
under this proposed bill, this would result in the need for three additional prison beds the first
year and five additional prison beds the second year.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
37
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-27.2A. Rape of a child; adult offender.
DESCRIPTION
A person who
1. is at least 18 years of age and
2. engages in vaginal intercourse
3. with a victim who is a child under the age of 13 years.
PROPOSED OFFENSE CLASS
Class B1 felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
debilitating long-term personal injury as Class B felonies.
A person who engages in vaginal intercourse with a victim who is a child under the age of 13 years and
the defendant is at least 12 years old and is at least four years older than the victim is guilty of first-degree
rape (G.S. 14-27.2(a)(1)), a Class B1 felony. This statute declares G.S. 14-27.2(a)(1) to be a
lesser included offense.
This provision is identical to a provision in HB 933 [v.1] which the Commission reviewed in May, 2007,
except that it was amended to G.S. 14-27.2, First-degree rape. The Commission found that provision to
be consistent with the Offense Classification Criteria for a Class B1 felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
38
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-27.2A. Rape of a child; adult offender.
DESCRIPTION
A person who
1. is at least 18 years of age and
2. engages in vaginal intercourse
3. with a victim who is a child under the age of 13 years.
PUNISHMENT RANGE
CURRENT: Punished according to the class of the offense and the offender’s prior record level.
PROPOSED: The court, in its discretion, shall impose one of the following sentences:
(1) Life imprisonment without parole; or
(2) Twenty-five years mandatory active punishment to be followed by satellite-based
monitoring for life pursuant to Part 5 of Article 27A of Chapter 14 of the General Statutes.
ANALYSIS
This provision is identical to a provision in HB 933 [v.1] which the Commission reviewed in May, 2007,
except that it was amended to G.S. 14-27.2, First-degree rape. The Commission found that provision to
be inconsistent with G.S. 164-41.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
39
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-27.4A. Sexual offense with a child; adult offender.
DESCRIPTION
A person who
1. is at least 18 years of age and
2. engages in a sexual act
3. with a victim who is a child under the age of 13 years.
PROPOSED OFFENSE CLASS
Class B1 felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
debilitating long-term personal injury as Class B felonies.
A person who engages in a sexual act with a victim who is a child under the age of 13 years and the
defendant is at least 12 years old and is at least four years older than the victim is guilty of first-degree
sexual offense (G.S. 14-27.4(a)(1)), a Class B1 felony. This statute declares G.S. 14-27.4(a)(1) to be a
lesser included offense.
This provision is identical to a provision in HB 933 [v.1] which the Commission reviewed in May, 2007,
except that it was amended to G.S. 14-27.4, First-degree sexual offense. The Commission found that
provision to be consistent with the Offense Classification Criteria for a Class B1 felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
40
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-27.4A. Sexual offense with a child; adult offender.
DESCRIPTION
A person who
1. is at least 18 years of age and
2. engages in a sexual act
3. with a victim who is a child under the age of 13 years.
PUNISHMENT RANGE
CURRENT: Punished according to the class of the offense and the offender’s prior record level.
PROPOSED: The court, in its discretion, shall impose one of the following sentences:
(1) Life imprisonment without parole; or
(2) Twenty-five years mandatory active punishment to be followed by satellite-based
monitoring for life pursuant to Part 5 of Article 27A of Chapter 14 of the General Statutes.
ANALYSIS
This provision is identical to a provision in HB 933 [v.1] which the Commission reviewed in May, 2007,
except that it was amended to G.S. 14-27.4, First-degree sexual offense. The Commission found that
provision to be inconsistent with G.S. 164-41.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
41
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-190.16. First degree sexual exploitation of a minor.
DESCRIPTION
A person who
1. knowing the character or content of the material or performance,
1. a. uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage
in sexual activity for a live performance or for the purpose of producing material that contains a visual
representation depicting this activity; or
a. permits a minor under his custody or control to engage in sexual activity for a live performance or for the
purpose of producing material that contains a visual representation depicting this activity; or
b. transports or finances the transportation of a minor through or across this State with the intent that the
minor engage in sexual activity for a live performance or for the purpose of producing material that
contains a visual representation depicting this activity; or
d. records, photographs, films, develops, or duplicates for sale or pecuniary gain material that contains a
visual representation depicting a minor engaged in sexual activity.
OFFENSE CLASS
CURRENT: Class D felony.
PROPOSED: Class C felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
infringements on property interest which also implicate physical safety concerns by use of a deadly weapon or an
offense involving an occupied dwelling as Class D felonies.
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious long-term
personal injury or in serious long-term or widespread societal injury as Class C felonies.
This provision is identical to a provision in HB 28, SB 17, SB 68, and SB 132, which the Sentencing Commission
reviewed in March, 2007, and HB 933 [v.1] which the Sentencing Commission reviewed in May, 2007. The
Commission found the provision to be consistent with the Offense Classification Criteria.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
42
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-190.17. Second degree sexual exploitation of a minor.
DESCRIPTION
A person who
1. knowing the character or content of the material,
2. a. records, photographs, films, develops, or duplicates material that contains a visual representation
of a minor engaged in sexual activity; or
a. distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that
contains a visual representation of a minor engaged in sexual activity.
OFFENSE CLASS
CURRENT: Class F felony.
PROPOSED: Class E felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in
significant personal injury or serious societal injury as Class F felonies.
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
personal injury as Class E felonies.
This provision is identical to a provision in HB 28, SB 17, SB 68, and SB 132, which the Sentencing
Commission reviewed in March, 2007, and HB 933 [v.1] which the Sentencing Commission reviewed in
May, 2007, except that it was classified as a Class D felony. The Commission found the provision to be
inconsistent with the Offense Classification Criteria but pointed out that it would be consistent with a
Class E felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
43
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-190.17A. Third degree sexual exploitation of a minor.
DESCRIPTION
A person who
1. knowing the character or content of the material,
2. possesses material that contains a visual representation of a minor engaged in sexual activity.
OFFENSE CLASS
CURRENT: Class I felony.
PROPOSED: Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in societal
injury as Class I felonies.
The Sentencing Commission classified offenses which reasonably tend to result or do result in personal
injury or in significant societal injury as Class H felonies.
This provision is identical to a provision in HB 28, SB 17, SB 68, and SB 132, which the Sentencing
Commission reviewed in March, 2007, and HB 933 [v.1] which the Sentencing Commission reviewed in
May, 2007, except that it was classified as a Class E felony. The Commission found the provision to be
inconsistent with the Offense Classification Criteria but pointed out that it would be consistent with a
Class F felony.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support or opposition to the bill itself.
44
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-190.18. Promoting prostitution of a minor.
DESCRIPTION
A person who
1. knowingly
2. (a) entices, forces encourages, or otherwise facilitates a minor to participate in prostitution; or
(b) supervises, supports, advises, or protects the prostitution of or by a minor.
OFFENSE CLASS
CURRENT: Class D felony.
PROPOSED: Class C felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
infringements on property interest which also implicate physical safety concerns by use of a deadly
weapon or an offense involving an occupied dwelling as Class D felonies.
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
long-term personal injury or in serious long-term or widespread societal injury as Class C felonies.
This provision is identical to a provision in HB 933 [v.1] which the Sentencing Commission reviewed in
May, 2007. The Commission found the provision to be consistent with the Offense Classification
Criteria.
FINDINGS
Bill is consistent with Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 6/10/08 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense
Classification Criteria does not imply either support or opposition to the bill itself.
45
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 933 – JESSICA LUNSFORD ACT FOR NC [V.3]
STATUTE
§ 14-208.18. Unlawful for sex offender to be on certain premises where children are or where a reasonable
person knows that children regularly congregate.
DESCRIPTION
A person who
1. is required to register under the Sex Offender Registration Program and
2. committed any of the following offenses:
(a) any offense in Article 7A of this Chapter
(b) any offense where the victim of the offense was under the age of 16 years at the time of the offense
3. is at any of the following locations:
(a) On the premises of any place intended primarily for the use, care, or supervision of minors, including,
but not limited to, schools, children's museums, child care centers, nurseries, and playgrounds.
(b) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the
place is located on premises that is not intended primarily for the use, care, or supervision of minors,
including, but not limited to, places described in subdivision (1) of this subsection that are located in
malls, shopping centers, or other property open to the general public.
(c) At any place where minors gather for regularly scheduled educational, recreational, or social
programs.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in personal injury or
in significant societal injury as Class H felonies.
G.S. 14-208.16, Residential restrictions, is a Class G felony.
G.S. 14-208.17, Sexual predator prohibited from working or volunteering for child-involved activities; limitation
on residential use, is a Class F felony.
This provision is similar to a provision in HB 933 [v.1] which the Sentencing Commission reviewed in May,
2007, except that it was classified as a Class F felony. The Commission found the provision to be inconsistent
with the Offense Classification Criteria for a Class F felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with a Class H felony if it was limited to being on the specified premises.
DATE PREPARED: 6/10/08 IMPACT ANALYSIS ON NEXT PAGE
SOURCE: NC Sentencing and Policy Advisory Commission, FY 2006/07 Felony and Misdemeanor Simulation
Data.
46
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 933: JESSICA LUNSFORD ACT FOR NC [v.3].
PREPARED: JUNE 11, 2008
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
SECTION 1.
This section creates G.S. 14-27.2A, Rape of a child; adult offender, which