Legislature(2001 - 2002)

04/22/2002 02:23 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 350                                                                                                            
                                                                                                                                
     An Act relating to terroristic threatening.                                                                                
                                                                                                                                
REPRESENTATIVE LESIL  MCGUIRE, SPONSOR, testified  in support                                                                   
of the  legislation.  She  commented that September  11, 2001                                                                   
changed the lives of Alaskan and  Americans.  What was once a                                                                   
concern for the  safety of those living, working  or visiting                                                                   
foreign destination  from terrorist  acts has painfully  come                                                                   
to the homeland.   The Nation has been warned  of the dangers                                                                   
associated with terrorism.                                                                                                      
                                                                                                                                
Representative McGuire stated  that terrorism is not confined                                                                   
to  public  transportation,  the   bombing  of  buildings  or                                                                   
government  offices.    The  added  threat  of  chemical  and                                                                   
biological warfare  and weapons  of mass destruction  make it                                                                   
clear  that the  world  is in  need  of redefining  our  laws                                                                   
regarding terrorism.                                                                                                            
                                                                                                                                
Representative McGuire  continued that the threat  alone of a                                                                   
terrorism  act  could cripple  the  community.   Imagine  the                                                                   
chaos that  would occur  if someone said  that they  had just                                                                   
contaminated the public water  utility with a deadly chemical                                                                   
agent.   Citizens would panic,  schools and businesses  would                                                                   
close,  and  in  general  the   community  would  come  to  a                                                                   
standstill.                                                                                                                     
                                                                                                                                
House Bill 350 would increase  criminal penalties for certain                                                                   
acts  of terrorism  and  would prohibit  terroristic  threats                                                                   
intended  to frighten  or cause  specific  harm to  citizens.                                                                   
House Bill 350 would increase  penalties of threats to water,                                                                   
food supplies, utilities and pipelines.   The bill would also                                                                   
provide law  enforcement for the  necessary tools  to arrest,                                                                   
detain and ultimately  prosecute an individual  who threatens                                                                   
public areas or  conveyances.  Any threat at  this time, must                                                                   
be taken seriously.   House Bill 350 would  increase criminal                                                                   
penalties  for certain  acts of terrorism  threats and  would                                                                   
punish criminals in accordance with the law.                                                                                    
                                                                                                                                
Representative McGuire  proposed a change be made  to Page 9,                                                                   
Line  26,  deleting  "an"  and inserting  "a  public".    She                                                                   
thought that change would serve  as a middle ground to narrow                                                                   
concerns of the public about it being overly broad.                                                                             
                                                                                                                                
Representative McGuire  requested that Ms.  Carpeneti address                                                                   
the bill in further detail.                                                                                                     
                                                                                                                                
Representative Hudson  MOVED to adopt the  proposed amendment                                                                   
to Page 9, Line 26, deleting "an" and inserting "a public".                                                                     
                                                                                                                                
Representative  Whitaker  asked  for an  explanation  of  the                                                                   
proposed language change.                                                                                                       
                                                                                                                                
Representative McGuire pointed  out that Line 21, sub-section                                                                   
©,  already states,  "causes serious  public  inconvenience".                                                                   
She  thought  that  it  could be  reasonably  argued  that  a                                                                   
private versus public charter would be preferred.                                                                               
                                                                                                                                
Representative Whitaker asked  why the State was concerned it                                                                   
would be "overly broad" by not inserting "public".                                                                              
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY  GENERAL, LEGAL  SERVICES                                                                   
SECTION, CRIMINAL  DIVISION, DEPARTMENT  OF LAW,  stated that                                                                   
the concern is that the State  wanted to move slowly in terms                                                                   
of what is done  for a crime of terroristic threat.   A crime                                                                   
like that could be of harm to the public convenience.                                                                           
                                                                                                                                
There being NO further OBJECTION, Amendment #1 was passed.                                                                      
                                                                                                                                
LINDA   WILSON,  (TESTIFIED   VIA   TELECONFERENCE),   DEPUTY                                                                   
DIRECTOR,  ALASKA  PUBLIC  DEFENDER   AGENCY,  DEPARTMENT  OF                                                                   
ADMINISTRATION,  agreed that  since September  11, 2001,  the                                                                   
State government  and Legislature want  to and feel  the need                                                                   
to   respond   with  appropriate   legislation   to   address                                                                   
threatening  in an  effort to  tighten any  loop holes.   Ms.                                                                   
Wilson noted  that the Public  Defenders Agency  does support                                                                   
those efforts, however, it does not support HB 350.                                                                             
                                                                                                                                
Ms.  Wilson  outlined  the  concerns  with  the  bill.    The                                                                   
concerns  have to  due with  proportionality.   The  criminal                                                                   
laws in Alaska  were carefully classified in  accordance with                                                                   
the seriousness  of the  injury and  the cope-ability  of the                                                                   
defendant.   When crimes  were classified  in Alaska  twenty-                                                                   
five years ago, you would look  at the nature of the harm and                                                                   
the cope-ability  of  the defendant.   A Class  A felony  has                                                                   
been classified  for those crimes  that involve  conduct that                                                                   
actually  results  in  serious  physical  injury.    Class  B                                                                   
felonies  are generally  reported  for crimes  that are  less                                                                   
severe and the most aggravated of property damages.                                                                             
                                                                                                                                
Crimes that are  current Class A felonies are  assault in the                                                                   
 stst                                                                                                                           
1   degree, arson  in  the  1  degree,  misconduct  involving                                                                   
                     st                                                                                                         
weapons   in  the   1   degree,   and  misconduct   involving                                                                   
                             st                                                                                                 
controlled substances in the 1   degree.  The crimes that are                                                                   
generally  classified  as a  Class  B felony  are  aggravated                                                                   
                                             nd                                                                                 
burglary,  perjury, forgery,  and  less  serious property  or                                                                   
threat to physical injury.                                                                                                      
                                                                                                                                
Ms. Wilson stated  that HB 350 in regard to  the portionality                                                                   
and  the classification  scheme  currently  in statute  would                                                                   
fuse that by  moving some crimes "up" to levels  beyond which                                                                   
they  perhaps  should be.    She  pointed  out that  Page  3,                                                                   
                                                  st                                                                            
Section  3, proposes  to create  murder  in the  1  degree  a                                                                   
felony  murder specifically  for  the new  classification  of                                                                   
                           st                                                                                                   
criminal mischief in  the 1  degree as an Class  A felony and                                                                   
                                                   st                                                                           
the newly created terroristic threatening in the 1 degree.                                                                      
                                                                                                                                
Ms.  Wilson   stated  that  right   now,  felony   murder  is                                                                   
                                nd                                                                                              
classified  as murder  in the  2  degree.   When  there is  a                                                                   
felony  committed, there  are probably  ten crimes listed  in                                                                   
               nd                                                                                                               
murder in the 2  degree felony  murder section.  Those crimes                                                                   
                                    nd                                                                                          
currently listed in murder of the 2 degree category are:                                                                        
                                                                                                                                
   · Kidnapping                                                                                                                 
                   st                                                                                                           
   · Arson in the 1 degree                                                                                                      
   · Sexual assault                                                                                                             
                                      stnd                                                                                      
   · Sexual abuse of a minor in the 1 or 2 degree                                                                               
                      st                                                                                                        
   · Burglary in the 1 degree                                                                                                   
                    stnd                                                                                                        
   · Escape in the 1 or 2 degree                                                                                                
   · Robbery in any degree                                                                                                      
                                                            nd                                                                  
   · Misconduct involving a controlled substance in the 2                                                                       
     degree                                                                                                                     
                                                                                                                                
                                                nd                                                                              
HB 350  would "leap frog"  over murder  in the 2   degree for                                                                   
                                               st                                                                               
the  particular  criminal  mischief  in  the  1   degree  and                                                                   
                                                            st                                                                  
terroristic threatening  and puts it  up to murder in  the 1                                                                    
degree.  She recommended that  it would be more appropriately                                                                   
stationed with  the other serious crimes, itemized  in murder                                                                   
        nd                                                                                                                      
in the 2 degree.                                                                                                                
                                                                                                                                
                                                            st                                                                  
Ms. Wilson  continued that  the criminal  mischief in  the 1                                                                    
degree section, elevates  what is currently a  Class B felony                                                                   
to  an Class  A felony.   By  doing  that, classification  of                                                                   
crime should not be piece mealed  together.  She thought that                                                                   
it would be  more appropriate to take a  generalized approach                                                                   
to classifications  and not  by a  response to one  incident.                                                                   
                                                    st                                                                          
As  currently written,  criminal  mischief in  the 1   degree                                                                   
seems appropriate  for a Class B felony.  Ms.  Wilson pointed                                                                   
out that a person could get nearly 10 years for a B felony.                                                                     
                                                                                                                                
Ms. Wilson  referenced the  terroristic threat provisions  of                                                                   
the  bill,  Page  8,  Section  17.    The  Public  Defender's                                                                   
concerns with that section are  that there should be specific                                                                   
intent  to place  a person  in fear.   The  problem with  the                                                                   
language is that  it does not require a result.   Adding that                                                                   
with  the  broad  language  of  the  biological  or  chemical                                                                   
substance,  defined broadly  as to include  material  that is                                                                   
harmful to  the health of  a person,  would classify it  as a                                                                   
Class B  felony.  She recommended  that an element  or result                                                                   
be  included which  could  be  accomplished by  amending  the                                                                   
language to  require that  they have the  intent to  and that                                                                   
they  additionally either  place  the person  in fear,  cause                                                                   
evacuation   of   a   building  or   cause   serious   public                                                                   
inconvenience.                                                                                                                  
                                                                                                                                
Ms.  Wilson clarified  that in  several statutes,  biological                                                                   
and  chemical  weapons  are  described.    She  thought  that                                                                   
changing the  language from substance  to weapons,  and makes                                                                   
it  something  that  is  just  "harmful"  to  a  person  than                                                                   
something that  is more toxic  or designed to cause  death or                                                                   
harm  to  that person  for  what  is  being attempted  to  be                                                                   
addressed in that particular offense.                                                                                           
                                                                                                                                
                                                    nd                                                                          
Ms. Wilson spoke  to terrorist threatening in  the 2  degree;                                                                   
the amendment proposed  would be well taken.   She added that                                                                   
it  would  be   very  appropriate  to   eliminate  completely                                                                   
subsection  (e).    That  language   is  already  covered  by                                                                   
subsection © and  is broad.  Ms. Wilson thought  the language                                                                   
could be too broad.                                                                                                             
                                                                                                                                
Ms.  Wilson  clarified  that   the  concerns  of  the  Public                                                                   
Defender Agency are  that the legislation should  look at the                                                                   
portionality  and that the  crimes fit so  that there  are no                                                                   
                                                     st                                                                         
loopholes.  However,  jumping into a murder in  the 1  degree                                                                   
would be  too much in one  direction.  Additionally,  jumping                                                                   
                             rd                                                                                                 
to criminal  mischief in the 3   degree to an Class  A felony                                                                   
is not  appropriate  and should  stay in the  Class B  felony                                                                   
that it already is.                                                                                                             
                                                                                                                                
Representative    Croft    referenced     the    "terroristic                                                                   
                      st                                                                                                        
threatening" in the  1  degree.  He suggested if  there was a                                                                   
practical joke  situation in which  the intent of  the person                                                                   
was to  place the  other person in  fear of physical  injury,                                                                   
would that be classified as a Class B felony.                                                                                   
                                                                                                                                
Ms. Wilson replied that it would.                                                                                               
                                                                                                                                
Representative  Croft pointed  out that  the "intent"  was to                                                                   
place a  person in fear of  a physical injury.   The "intent"                                                                   
would  be the  cause for  fear.   He asked  what the  penalty                                                                   
              st                                                                                                                
would be for 1 degree murder.                                                                                                   
                                                                                                                                
Ms. Wilson  replied that penalty would  be 20 to 99  years in                                                                   
                            nd                                                                                                  
prison.  The penalty for a 2   degree murder would be 5 to 99                                                                   
years in prison.                                                                                                                
                                                                                                                                
Representative  Croft asked if  there was a possibility  that                                                                   
                                                st                                                                              
the court could give less than 20 years for a 1 murder.                                                                         
                                                                                                                                
Ms. Wilson responded that they could not.                                                                                       
                                                                                                                                
                                                                                                                                
TAPE HFC 02 - 89, Side B                                                                                                      
                                                                                                                                
                                                                                                                                
Ms. Carpeneti  explained that the  material would have  to be                                                                   
actually harmful  to a  person's health.   The intent  was to                                                                   
prohibit   false    anthrax   scares   that    cause   public                                                                   
inconvenience.                                                                                                                  
                                                                                                                                
Co-Chair Williams  asked if Ms.  Wilson had testified  before                                                                   
the House Judiciary Committee.                                                                                                  
                                                                                                                                
Ms.  Wilson  replied that  she  had  not  as there  had  been                                                                   
complications with her equipment system.                                                                                        
                                                                                                                                
Co-Chair Williams recommended  that the bill should be placed                                                                   
into Subcommittee to address the legal concerns.                                                                                
                                                                                                                                
Ms.  Carpeneti  asked to  respond  to  comments made  by  Ms.                                                                   
Wilson.    She  pointed  out  that  many  of  the  provisions                                                                   
contained in HB 350 were taken  from the Governor's terrorism                                                                   
package.     She  added  that   after  September   11th,  the                                                                   
Department  of   Law  attorney's  got  together   to  discuss                                                                   
criminal acts.   The conclusion  was that there are  holes in                                                                   
our  current criminal  codes,  with  the main  concern  being                                                                   
damage to  the pipeline,  a damage  that could cause  serious                                                                   
public harm.    Other concerns  are damage to  water supplies                                                                   
and the possibility of an anthrax scare.                                                                                        
                                                                                                                                
Ms. Carpeneti  disagreed  with comments  made by Ms.  Wilson.                                                                   
Causing damage  to the  oil or gas  pipeline or a  supporting                                                                   
facility is reasonable  to raise from a Class B  to a Class A                                                                   
felony.    The  bill  raises all  conduct  in  terms  of  the                                                                   
pipeline on one  level.  That is what exists  in current law,                                                                   
a Class B felony.  It would raise it to a Class A felony.                                                                       
                                                                                                                                
                                              st                                                                                
Ms. Carpeneti  commented that murder  in the 1   degree, such                                                                   
as  when someone  kills  another  person  when blowing  up  a                                                                   
pipeline  facility,  that sort  of  terroristic  act has  the                                                                   
potential to cause  a lot of harm, which made  it appropriate                                                                   
                                          st                                                                                    
to increase the charge to murder in the 1 degree.                                                                               
                                                                                                                                
Ms.  Carpeneti  agreed  with   Ms.  Wilson's  specifics  that                                                                   
perhaps  it  could  be "tighter",  however,  she  noted  that                                                                   
something would need  to be "harmful".  She  added that would                                                                   
answer  the concerns  voiced by  Representative  Croft.   She                                                                   
commented  that   these  had  been  the   concerns  discussed                                                                   
throughout  the State  regarding the  problems with  Alaska's                                                                   
criminal code and response to acts of terrorism.                                                                                
                                                                                                                                
Representative Hudson pointed out the five fiscal notes.                                                                        
                                                                                                                                
Representative   Davies   agreed  that   terrorist   activity                                                                   
concerning the  pipeline should be reclassified.   He thought                                                                   
that if  there was  "intent" but  nothing actually  happened,                                                                   
                                    nd                                                                                          
the crime should  be classified as 2  degree.   He referenced                                                                   
the section.                                                                                                                    
                                                                                                                                
Ms. Carpeneti replied  that section does not  address harm to                                                                   
the pipeline.   In response to Representative  J. Davies, Ms.                                                                   
Carpeneti explained that the way  in which "intent" is proven                                                                   
is through being successful.                                                                                                    
                                                                                                                                
Representative McGuire  countered that the State  already has                                                                   
on the books  AS 11.56.810 which includes all  the items with                                                                   
the actual  exemption of  sending a  "package".  She  thought                                                                   
that Representative J. Davies'  concern rested with reference                                                                   
back to Section #3.                                                                                                             
                                                                                                                                
Representative Davies  agreed that was  part of it  and would                                                                   
also include  the reality  of the  event actually  happening.                                                                   
                                                            st                                                                  
He noted  his concern  with the  crime raising  it to  the 1                                                                    
                                                            st                                                                  
degree.  He suggested to take  the written language in the 1                                                                    
                          nd                                                                                                    
degree,  move it to  the 2   degree and  then rewrite  it for                                                                   
when one of the listed offenses actually happens.                                                                               
                                                                                                                                
Representative McGuire agreed that would work.                                                                                  
                                                                                                                                
Representative Croft acknowledged  that he liked the bill and                                                                   
the intent.  He  worried about some sections of  the bill and                                                                   
offered to help address those concerns.                                                                                         
                                                                                                                                
Representative  McGuire advised that  it had been  the intent                                                                   
to take  portions  of the Governor's  bill  and her bill  and                                                                   
make  the  definitions  consistent.     She  noted  that  the                                                                   
biological  and chemical substance  is consistent  throughout                                                                   
the  bill and  added  that she  was  willing  to narrow  that                                                                   
language with the suggested conceptual language.                                                                                
                                                                                                                                
Representative Croft  asked Ms. Wilson if she  had referenced                                                                   
the federal law definitions.                                                                                                    
                                                                                                                                
Ms.  Wilson  advised  that  she  used  definitions  from  the                                                                   
Internet that defined Title 18,  U.S. Code, the definition of                                                                   
a chemical  weapon as a  "toxic chemical and  its' precursors                                                                   
that are  intended for  a purpose  not prohibited under  that                                                                   
chapter".    It also  mentioned  a  chemical weapon  being  a                                                                   
munitions or device  specifically designed to  cause death or                                                                   
other harm through toxic properties.                                                                                            
                                                                                                                                
Representative Croft acknowledged  that language could be too                                                                   
"tight" but that it could be used  as the "outer" guidelines.                                                                   
                                                                                                                                
Co-Chair Williams  commented that the  bill would be  HELD in                                                                   
Committee  for  Representative  McGuire,  Ms.  Carpeneti  and                                                                   
Representative Croft to meet to discuss the legal matters.                                                                      
                                                                                                                                
HB 350 was HELD in Committee for further consideration.                                                                         

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