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House Game and Fisheries Committee 9:00 a.m., 9/11/08, 302 Irvis Office Building By Nate Collins, PA Legislative Services The committee held an informational meeting on proposed amendments to House Bill 2205. HB 2205 Staback - (PN 3146) Amends Title 34 (Game) further providing for definitions of "closed season", "contraband", "open season", "poaching" and "violation"; for jurisdiction and penalties by increasing certain fines and penalties; for revocation, suspension or denial of license, permit or registration and for determination of second or subsequent convictions; adding a subchapter providing for forfeiture; further providing for penalties relating to various unlawful activities by increasing certain penalties, for contraband by requiring automatic forfeiture; for prohibited devices and methods by requiring automatic forfeiture; for tagging and reporting big game kills; for penalties for unlawful use of lights while hunting, buying and selling game, trespass on private property while hunting, unlawful killing or taking of big game; and repealing provisions relating to additional penalty for poaching. Members in attendance included Chairman Ed Staback (D-Lackawanna), Minority Chairman Sam Rohrer (R-Berks) and Representatives Mike Hanna (D-Clinton), Gary Haluska (D-Cambria), Scott Perry (R-York), Mark Keller (R-Perry), Todd Rock (R-Franklin), Dave Millard (R-Columbia), Dan Moul (R-Adams), Rob Kauffman (R-Franklin), Mike Peifer (R-Pike) and Keith Gillespie (R-York). Chairman Staback said the committee is meeting to discuss amendments (see attached) to the bill that he has worked with the Game Commission to draft. He said the changes are an effort to address concerns of sportsmen's groups. He noted that the proposed new language removes the section on contraband and forfeiture. He offered that HB 2205 is about poaching so he removed the contraband language, but added that it will be addressed in another bill in the future. The chairman discussed a few other changes, including increasing the offense for assault on a wildlife conservation officers (WCOs). Rich Palmer, Director of the Game Commission's Bureau of Wildlife Protection, (see testimony below) said the Commission believes this legislation is needed to update and improve outdated sections of the Game and Wildlife Code and to bring Pennsylvania's wildlife protection on par with other states. He stated that under current law a person could kill hundreds of deer and the penalty is only a summary offense. "The unlawful taking of wildlife is a theft of the property of the citizens of the Commonwealth and should be treated as such," he said. He told the committee that the primary impact of the increased penalties is geared solely to the most egregious offenses. The poaching of threatened and endangered species, taking big game at night with a light, over the bag limit, or out of season are now graded as misdemeanor and felony offenses, depending on the amount of wildlife illegally taken, Palmer explained. He stated that in the amended language the structure makes the first and second big game animal stolen a misdemeanor of the third degree, the third and fourth big game animals stolen a misdemeanor of the first degree, and five or more big game animals stolen a felony of the third degree. He also noted that the amendments reduce the required number of convictions for killing big game at night with a light, out of season, or over the bag limit from three convictions to trigger the felony offense, down to two convictions within a 10 year period. "This sends a strong message to those people convicted of their first offense that if they are convicted of stealing wildlife a second time they will be facing a felony offense," he said. Palmer suggested that this provision creates such a significant deterrent to poaching that violations would be anticipated to decrease. He offered that statistics conclusively establish both a growing trend in the illegal taking of wildlife and the lack of any effective deterrence within the current law. The legislation also increases the penalties for the illegal sale of big game and threatened and endangered species on the black market to misdemeanor and felony offenses based on the amount of stolen wildlife sold, he told the committee. Rep. Hanna said that he is concerned about efforts in the Senate to limit the authority of deputy WCOs. He said he does not want this bill to affect their authority. Palmer assured him that nothing in the amended language affects the authority of deputy WCOs. Rep. Hanna asked Chairman Staback if he can guarantee that their authority will not be reduced. Chairman Staback commented that if a bill comes over from the Senate that affects deputy WCOs he will not move the bill out of committee. Rep. Rock asked about the penalty for killing a deer while using a light. Palmer explained that it is currently a summary offense but under this amended bill it would be a third degree misdemeanor. He said the penalty would be a $1,500 to $3,000 fine and up to six months in jail. He added that the person's hunting license would be revoked for a year at minimum. Rep. Rock stated that it seems if someone is using a light their intent is to break the law and he asked why this crime was not considered a felony. Palmer said that is a good argument but at this time they have not considered making that change. Rep. Perry asked if someone can be charged with a felony if they hit a deer and then take the carcass. Palmer answered no, adding that it is potentially an unlawful possession, which is a summary offense. He noted that this is not changed in the amended bill. Chairman Staback asked for an explanation of the difference between poaching a deer out of season and an illegal kill during the season. Palmer replied that most violations that occur in season stay the same in the bill, except for over the bag limit. He suggested that it is usually an accident if it occurs in season because the hunter has a license. Chairman Staback asked if a person violates the law a second time if it would automatically charge him with a second degree felony. Palmer said yes, adding that this is a substantial change because it was three violations under current bill. This is a significant deterrent to chronic offenders, he stated. Rep. Moul commented that deer living in deer farms can have a high value, and he asked about the Game Commission's role with deer farms. Palmer responded that the deer in those farms are privately owned animals, and they would be traditional Crimes Code offenses if someone shoots them. In those cases, the State Police take the lead, he stated. Rep. Moul asked if the bill would apply to deer farms. Palmer said no, adding that the bill only deals with wildlife. Minority Chairman Rohrer expressed his concern about the impact of being charged under a first degree misdemeanor. He asked if this would trigger a federal law preventing the person from purchasing a firearm. Palmer responded that this would not trigger anything under state law but it could fall under the federal firearms law and trigger a restriction if the penalty included 24 months in jail. Rep. Rohrer asked if the Game Commission would consider changing the penalties to avoid this situation. Palmer said they are willing to look at it and discuss the issue. Chairman Staback remarked that the felony would only be for the most egregious offenses for taking big game. He said the intent is to deter people from committing these types of offenses, adding that if the penalty is reduced it doesn't act as a deterrent. Minority Chairman Rohrer argued that the law should not compromise a person's constitutional right to own firearms. Palmer further explained that the language includes limited categories for big game animals, noting that a third degree misdemeanor would not trigger the federal law. If a person kills three or four animals, that would be misdemeanor in the first degree, which could trigger the federal restriction,  if they were given the 24 months jail time, he stated. Minority Chairman Rohrer asked if the Game Commission has information profiling the people who commit these crimes. Palmer responded that said he believes the ages of the offenders vary greatly. He noted that the state has a significant number of non-resident offenders, and he opined that it is because our penalties are so low compared to neighboring states. Chairman Staback asked for information about "thrill kills". Palmer explained that is a term used by the Commission to describe people killing wildlife just to kill it, and not utilizing the body of the animals at all. He said this trend is increasing. He provided the committee with several examples of "thrill kills" that have occurred recently in Perry County and in the northwestern part of the state. Palmer offered that Colorado has been aggressive in addressing these crimes and the number of incidents is decreasing. Rep. Keller asked if the language in Section 2312 conflicts with a bill the Governor recently signed. Palmer responded that the language that was just signed into law would be included in the amended version of HB 2205. He explained that this amended language was written before the bill was signed by the Governor, but he assured the representative that it would be included in the final version of the bill. Rep. Peifer asked why the language about contraband was removed from the bill. Chairman Staback explained that several sportsmen's associations (USP & ACSL) felt the language was controversial and they couldn't support it. He said that instead of holding up the bill, the language on contraband was removed until the committee can meet with the organizations about improving the language. He added that another bill containing contraband language will be introduced in the near future. Rep. Peifer opined that the language would be a great deterrent. Palmer agreed, adding that Pennsylvania is the only state in which killing a deer at night is a summary offense. Chairman Staback asked about the role of district attorneys if the bill becomes law. Palmer explained that most prosecutions are now summary offenses which go to the local magisterial district judge. The Commission usually does not ask for a district attorney's assistance in those cases, he stated. He commented that these offenses will now be misdemeanors. This language says that these crimes are important and they are worth a DA's time, he said. Palmer stated that since these violations would be misdemeanors the DAs would do the prosecutions. This bill adds a layer of judicial oversight, he suggested. Subject: House Bill 2205 - Increase in Penalties for Title 34 Game Violations From: Rep. Ed Staback HB2205 Amendment: legislation that addresses penalties within Title 34 for the illegal killing of wildlife in Pennsylvania. This version includes several changes that deserve highlighting. These changes were made after discussions with representatives of sporting organizations, legislative colleagues, Game Commission staff, and hunters who have contacted me about the bill. One difference between this new language and the original HB2205 that is evident right away is that this new version of the bill is shorter. The new bill will center on penalties for poaching, the taking of threatened and endangered animals, and the unlawful marketing of animal parts. It will no longer include language about prosecutorial process for the collection of contraband and the forfeiture of property that some found objectionable. My initial interest in proposing HB2205 was to greatly increase the penalties for wanton killing of game. While preparing the bill, portions of Title 34 that addressed forfeiture of contraband and procedural safeguards were shown to be in need of a rewrite due to court rulings that found them vague and ruled them void. It was thought that this bill could be a good vehicle to get that revision accomplished. I changed my mind after listening to complaints about the scope of the bill and about the technical language suggested by the Game Commission. There was a strong possibility that the confiscation language as suggested by the courts could keep the bill from becoming law, thereby losing my goal of the increased penalties also. I decided to split the bill, while still wanting both sections to become law. A separate companion piece of legislation will now include the forfeiture of personal property provisions – legislation that I will strongly support and that will get the serious attention it deserves. Along with the fact that my amendment to HB2205 will not have the forfeiture language e in it, it also will include other adaptations in the proposed penalties. New penalty breakdown In response to concerns over fairness in sentencing that were raised about the original proposed penalties structure, including the introduction of a felony offense into Title 34, changes are proposed to the bill’s original language. In the original draft of the bill, 3 or more counts in one incident of poaching a big game animal at night with a light, out of season, or over the bag limit or as a third offense was to be a Felony 3. In the proposed amendment, the number of animals illegally taken per episode to trigger a felony is raised to 5. The 3rd and 4th count will now be graded as a Misdemeanor 1 with a fine of $5,000 to $10,000, possible imprisonment up to 2 years, and a license revocation of 10 years. The 5th count becomes a Felony 3 with a license revocation of 15 years and a fine of $10,000 to $15,000 and up to 3 years imprisonment. This new gradation is designed to compare with the approach of other states, especially Ohio, which calls for higher penalties for increased numbers of violations and reflects fairness in sentencing. The use of a felony would be held for the most egregious violators. Also of note, this new language calls for the charging of second offenders within a ten year window with a Felony 3, instead of the three strikes provision in place within the original printing of HB2205. Another change in this new draft is the removal of the mandatory minimum jail time for the Felony 3 sentencing. Instead, the sentencing is now to be left to the judge’s discretion. Added to the bill is an increase in the penalty for assaulting a wildlife conservation officer from its current status as a Misdemeanor 2 up to a Felony 2. Accelerated Rehabilitative Disposition (ARD) Along with the changes in the sentencing guidelines, specifically the greater use of misdemeanors, the new language includes the highlighting of ARD as a sentencing option. If the district attorney and judge agree, an individual charged with one of the new misdemeanors could qualify for this program that combines community service and rehabilitation. In some cases, an individual, especially a young person, simply can make a bad decision and find themselves breaking the law because of intoxication or other deviations in their usual behavior and reasoning. For those situations, ARD should be available. The cost of the program and the level of commitment of time and effort necessary for the community service portion of the sentencing allow ARD participants to make a positive social impact while learning lessons. Importantly, the offense that triggered the ARD sentencing will count as a first offense. As mentioned above, with this new language, the second offense, not the third, will be a Felony 3. This quicker path to a felony for a repeat offender is seen as a compromise for the availability of ARD for the first offender. Removal of Mandatory Sentencing In the first version of the bill, mandatory jail time for the Felony 3 was included. Mandatory minimum sentencing is opposed by the Judiciary in all instances. In the proposed amendment to HB2205, judicial discretion will determine the length of incarceration. HB2205 will still: Change the definition of poaching to specifically include unlawful taking of game during closed seasons and beyond established daily or season limits Introduce the first felony charge into the Game Code Increase penalties for illegal game kills from summaries to misdemeanors and felonies, substantially raising fines and adding possible incarceration Address black marketeering of animal parts and commercial poaching with misdemeanors and felonies Use jail time in sentencing Increase second violations of illegal game kills and illegal trade of game to felonies Increase penalty for the assaulting of a WCO from a misdemeanor to a felony 2 Extend the time period for which someone can be prosecuted for a second violation for trespass while hunting and unlawful killing, selling and buying of game from two years to ten years. House Bill 2205 includes the strongest penalties ever offered in Pennsylvania for poaching and illegal trading in animal parts. With its passage, Pennsylvania will cease to be a land of opportunity for those willing to break our game laws; simply put, HB2205 will raise the penalties to match the seriousness of the crimes. A fast fact sheet about the proposed bill: HOUSE BILL 2205 FAQs How does the number of big game poaching offenses in PA compare with other states with similar hunting traditions and opportunities? PA has substantially higher number of big game poaching than states surveyed (including Ohio and Michigan). PA has almost double the number of violations of the similar state of Michigan with a 10 year average of 463 violations per year; PA has a 10 year average of 931 violations in the same categories. Are poaching violations in PA growing? Given the fact that the number of officers has dropped 32% in three years and the number of violations has remained as high, it appears that the remaining officers are experiencing increasing violation rates. Is the black market in animal parts expanding? The black market is growing around the nation. Specific kills for the harvesting of high value animal organs or parts is a disturbing trend that targets a variety of animals, including threatened and endangered species. Pennsylvania, given its light penalties and lack of jail time in sentencing, is seen as a land of opportunity for unscrupulous black market traders. This bill will address the trend by increasing the punishments, including substantial fines and incarceration. How strong are Pennsylvania’s game protection laws compared to other PA statutes? Our laws are very weak in comparison, for example: the intentional killing of a cat is a Misdemeanor 2, the second offense is a Felony 3. To kill a zoo animal is a Felony 3. Any theft involving $1,500 of value is a felony. What are thrill kills? A thrill kill is a disturbing instance of an individual or a group slaughtering animals in a rampage for simply the sake of killing. Does HB2205 include mandatory jail time as a punishment of Title 34 violations? There is no mandatory incarceration included in HB2205, in keeping with the expressed wishes of the state’s judiciary. This bill includes for the first time the possibility of jail time for poaching violations. When would ARD be available as a sentencing option? ARD would be available for first offenses that are misdemeanors. Before ARD would be offered, the district attorney’s office would have to agree. Program costs and considerable community service hours are usually included in ARD sentencing. How does the introduction of misdemeanors and felonies change the way a case is prosecuted? All poaching violations will be prosecuted through the district attorney’s office. Currently, since such violations are summary offenses, the case is heard at the district magistrate level, with the Game Commission’s Wildlife Conservation Officer serving as prosecutor. With this new elevation of the offense, the county DA will review each case that is brought to determine if there is enough evidence to prosecute. Also, there will be a preliminary hearing. These extra steps will bring several additional sets of eyes on each arrest before any prosecution begins. What are the proposed new penalties? See attached charts Is there still a ‘three strike’ provision for repeat offenders to be charged with a felony? There is not. The three strikes provision will be replaced with the three tier penalties and new language making a second offense within a ten year look-back a Felony 3. What is the three-tiered penalty structure for first offenses of poaching? For the first offense: 1-2 counts = Misdemeanor 3; 3-4 counts = Misdemeanor 1; 5 and up counts = Felony 3. For second offense: Felony 3 M3 = $1,500 to $3,000; 0-6 months imprisonment; 5 year license revocation M1 = $5,000 to $10,000; 0-24 month imprisonment; 10 year license revocation F3 = $10,000 to $15,000; 0-36 month imprisonment; 15 year license revocation Does the bill address the confiscation of contraband, including weapons and vehicles? The sections of the bill that addressed these issues are removed by the proposed amendment. A separate companion piece of legislation will include the forfeiture of contraband – legislation that I will strongly support and that will get the serious attention it deserves. How does the bill change the offense of assaulting a Wildlife Conservation Officer? It takes the offense from a Misdemeanor 2 to a Felony 2. Presently kicking a police dog is Felony 2, assaulting a police officer is F2 and a Fish and Boat Wildlife Conservation Officer is already F2. This provision elevates the PGC officer to the level of other law enforcement entities.