HB 1812:  (Mendoza):  Enhances the sentence for murder, assault, and battery, using the status of the defendant - i.e. that he is a gang member or commits the crime by reason of his allegiance to a gang.  Under the bill, a murder becomes death eligible, an assault a Class 4 felony, a battery a Class 3 felony due to this “status”; creates a new provision in the Aggravated battery section of the criminal code that allows for prosecution as a Class X felony, aggravated battery with a firearm, by a gang member, without a requirement that any injury be caused; creates a new provision in the aggravated discharge of a firearm section of the criminal code to allow a prosecution for the Class X felony (minimum of 10 years, not more than 45 years) that the person discharging the firearm is a gang member.

  Having an allegiance to a gang is not a crime and shouldn’t be used as the ultimate sentence enhancement. Both the U.S. Supreme Court (City of Chicago v. Youkhana 277 Ill.App.3d, 660 N.E. 2d 34 (1995) and the Illinois Supreme Court (People v. Nash, 173 Ill.2d423 (1996) have held that gang allegiance is not a crime.

  HB 1812 looks solely at the defendant’s status in making a murder death eligible - not at the heinous nature of the murder or the vulnerability of the victim.  Most of the aggravating factors allow for death due to the particularly gruesome nature of the crime, or because the victim is someone eligible for heightened protection, i.e. a fireman, correctional officer, peace officer, disabled person, etc…  In this sense the bill is different than most of the existing aggravating factors allowing for death.

  Our death penalty system has been acknowledged to be seriously flawed.  At the very least, death penalty expansion legislation is untimely until the Governor’s Commission issues it’s report.   The Commission is scheduled to publish it’s report next year, a report widely anticipated to include numerous recommendations to reform the death penalty, among them scaling back the existing aggravating 20 aggravating factors that a defendant in a murder prosecution death eligible.  Anti-death penalty advocates had the sense to wait for the Commission’s report prior to advancing abolition legislation.

  You can be for the death penalty and against this bill.  There is no doubt that prosecutions relating to gang activity, such as the City of Chicago’s gang loitering ordinance, have been primarily enforced against people of color. Similarly, this bill will have a disproportionate impact on minorities at a time when the racism inherent in the application of the death penalty has been widely recognized.

 The provision relating to gang status added to existing Illinois law regarding crimes of aggravated battery with a firearm and aggravated discharge of a firearm are entirely unnecessary.

  Without HB 1812, prosecutions proceed when a person in committing a battery (1) causes any injury to another person or (2) causes any injury to a  person known to be a peace officer, community policing volunteer, … or (3) causes any injury to a person he knows to be an emergency medical technician… or (4) causes any injury to a person known to be a teacher. The language in the amendment to HB 1812 adds nothing but gang status and fails to require proof of any injury.

  Without HB 1812, a charge of aggravated discharge of a firearm may be sought when a person discharges a firearm at or into a building he or she knows or reasonable should know to be occupied and the firearm is discharged from a place or position outside that building.  The amendment to HB 1812 makes a significant change in allowing a prosecution for aggravated discharge of a firearm ( A Class X felony - 10 to 45 years) to proceed when the firearm is intentionally discharged in the direction of a vehicle.  Currently, reckless discharge of a firearm (endangering the safety of an individual) by a passenger in a car is a Class 4 felony.