Legislature(1995 - 1996)
04/27/1995 02:05 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 205 - STREET GANG ACTIVITY Number 1831 MARGOT KNUTH, Assistant Attorney General, DOL, said HB 205 is the Governor's bill relating to street gang activities. Particularly in Anchorage, street gangs have become a distressing part of life. Ms. Knuth, as a citizen of Southeast Alaska, did not appreciate the problem until she listened to parents, police officers and prosecutors in Anchorage. This is a real problem and it is something that needs action right away. MS. KNUTH noted that it can be seen in the Lower 48: Once you lose ground to gangs, it is terribly difficult to reclaim it. This bill takes a multi-faceted approach to the problem. The first section creates a civil cause of action against gang members, allowing the recovery of trouble damages by someone who is injured by gang members or gang activity. If the gang member is a juvenile, the bill allows recovery against the juvenile's parent(s) as well. MS. KNUTH continued that after those provisions, all the focus is on criminal sanctions and attempts to give courts greater latitude in dealing with gangs and gang members. The first criminal provision in Section 2 is recruiting a gang member in the first and second degree. The crime of recruiting a gang member in the first degree is charged if the use of force is threatened or utilized. MS. KNUTH explained that recruiting a member in the second degree, which is a misdemeanor, occurs if force is not used or threatened. Number 1929 MS. KNUTH emphasized that this bill does not criminalize gang membership. There are a number of bills in the Lower 48 that have tried to make it a crime to simply be a member of a gang. There are first amendment difficulties with that, as well as other legal problems. Alaska has chosen not to attempt those provisions. However, HB 205 does make it a crime to recruit other people to become gang members. MS. KNUTH said that leads her to Section 3, which gives the definitions of criminal street gangs. What is being utilized is a standard definition that is in use throughout the United States: "A group of three or more persons who have in common a name or identifying sign, symbol, tatoo or other physical marking, style of dress, or use of hand signs; and who, either individually, jointly, or in combination, have committed or attempted to commit, within the preceding three years, for the benefit of, at the direction of, or any combination of...." two or more crimes that are specified within the bill. MS. KNUTH said these are specified under AS 11.41, which are crimes against a person; AS 11.46, which are property crimes; or any other felony offense. Number 1978 MS. KNUTH said misdemeanor drug offenses were specifically left out of that. Unfortunately, there is a large percentage of the juvenile population using drugs such as marijuana. Merely doing that will not constitute being a gang member. Those are two different problems that may overlap in some instances, but in Alaska juveniles are capable of using drugs without benefit of gang membership. The Governor's office did not think it would be appropriate in Alaska to use misdemeanor drug offenses as an indicator of gang membership. MS. KNUTH continued that Section 4 allows the state to forfeit property that is either used to further gang activity or is the product of crimes committed by gangs. That property will go to the general fund, but that may serve as a deterrent for the gangs. MS. KNUTH said Sections 5, 6, 7 and 8 all relate to sentencing provisions for gang activities. If the case is a felony, the fact that it was done by or for the benefit of a gang can be used as an aggravator. An aggravator will give the sentencing judge the flexibility to go about the presumptive sentence. If it is not a felony offense, then these provisions elevate the offense one level. Therefore, if the offense was a class B misdemeanor and was committed by a gang member or on behalf of a gang, the charge would be prosecuted and result in conviction as a class A misdemeanor. A class A misdemeanor would be bumped up to a class C felony offense. Number 2057 MS. KNUTH said those are the highlights of the bill. There are zero fiscal notes that have been submitted by the Department of Health and Social Services, the DOL, the Public Defender's Office, the Office of Public Advocacy, and the Department of Corrections. The fiscal notes are indicative of the fact that the state is on the cutting edge of this problem. MS. KNUTH stated it is believed that this problem is still in its infancy, and the cases are not going to represent a large percentage of the prosecution's time. Now is the time to act. The bill is supported by the Chiefs of Police, by the Association of Peace Officers, by the Department of Parole and Probation Officers, and by anti-drug groups throughout the state as well as education groups. Number 2091 CO-CHAIR TOOHEY said she was concerned with the seven zero fiscal notes. There are more than a few gangs in Anchorage. There are about 36 gangs in Anchorage. Whether or not those gangs have become destructive and powerful, she does not know. This bill is going to cost a lot of money, and if the HESS Committee members are willing to pass the bill, they should know that those fiscal notes are not necessarily honest. This bill is going to be expensive, and Co-Chair Toohey is willing to pay for it. However, she really objects to seeing zero fiscal notes on something that talks about the courts. CO-CHAIR TOOHEY expressed concern about the possibility that when a department likes a bill and wants it passed, it is given a zero fiscal note. That is not right, but it is done. Co-Chair Toohey said she could not let seven zero fiscal notes go by without saying anything. Number 2156 REPRESENTATIVE AL VEZEY asked Ms. Knuth to tell him what AS 11.41 and AS 11.46 were. MS. KNUTH repeated that AS 11.41 relates to offenses against a person. In the misdemeanor category, that would be assault in the fourth degree, and reckless endangerment. Otherwise, it relates to sexual abuse, sexual assault, felony assault, and kidnapping offenses. AS 11.46 are property offenses. At the misdemeanor level, the offenses would include theft in the fourth and fifth degree, and arson in the second degree. The felony levels referred to in that statute are values over $500 or arson in the first degree. Those are the two most common ones. REPRESENTATIVE VEZEY appreciated the difficulty of trying to define things. But when he reads the definition of street gang, he thinks of the crew he works on in construction. They all dress alike, use the same tools, etc. Fortunately, other criteria must be met because his crew is already well qualified as a gang. He was concerned that if any one of them committed a crime, such as reckless endangerment, there would be danger that the whole crew could be considered a criminal street gang. Number 2222 MS. KNUTH noted that there would need to be, within the preceding three years, two or more crimes that were committed for the benefit of, or at the direction of, or in association with the group. The example being given by Representative Vezey would not qualify because there is one member of the group who commits one offense. The DOL would need to be able to show that this was for the benefit of the group, and there was more than one offense within three years. MS. KNUTH explained that the DOL has tried to tailor the definition so it does target gangs and the types of crimes committed by gangs. Obviously, left out of the bill are drinking offenses, smoking offenses, loitering. Those are the types of things people could run into difficulties with. She noted that there are states that have specifically excluded labor organizations from their definitions of gangs because of such similar concerns. Number 2290 CAPTAIN BRUCE RICHTER, Anchorage Police Department, testified via teleconference in support of HB 205. He said the bill would be a useful tool to combat the gang problems that are currently on the rise in Anchorage. However, the gangs are still a small enough problem that, if the bill could be used in an aggressive manner, some results could be seen. Clearly, there is visible street gang activity in Anchorage. These street gangs are also clearly recruiting younger members to be part of those gangs. A bill such as HB 205 will assist in curbing gang activities. CO-CHAIR BUNDE said a few weeks ago, he went to a national conference on state schools. He learned that there are gangs, and there are gang "wanna-bes." TAPE 95-44, SIDE A Number 000 CO-CHAIR BUNDE stated those groups do not care what they are called, their behaviors are very, very similar. In addition, subsequent crimes almost always are compounded on the last. REPRESENTATIVE ROKEBERG asked Captain Richter if the "Little Rascals" are still in West Anchorage. CAPTAIN RICHTER said the Anchorage Police Department (APD) has had some experience with a gang that calls itself the Little Rascal Gang. There has also been experiences with a group of young Asians who were robbing gun stores. The APD has recovered a number of stolen guns from a house gang members were living at just last week. CO-CHAIR TOOHEY asked if Captain Richter had a chance to look at HB 205. CAPTAIN RICHTER answered yes, and he has a copy of it in front of him right now. CO-CHAIR TOOHEY asked if, in his opinion, if there is a chance that the bill will cost money to implement. CAPTAIN RICHTER replied that obviously, there is a cost any time a case goes into the court system. However, Captain Richter feels that right now there may be problems finding charges that fit an exact situation. This bill would provide one more charge for the police "tool box" that could be used to detain dangerous individuals in appropriate cases to fight back against the gang problem. He does not, therefore, see this bill as accruing additional cost over and above the cost of doing business as a police department. Number 150 CO-CHAIR TOOHEY assured Captain Richter that the legislature and the HESS Committee members were trying very hard to not pass unfunded mandates. She feared HB 205 was an unfunded mandate. She asked for Captain Richter's word that the bill was not going to cause any heartburn to the Anchorage Police Department. CAPTAIN RICHTER said the criminal activity that is taking place in Anchorage has a cost. The state is picking up that cost investigating shootings, assaults, and burglaries. Sometimes the APD gets into a situation in which it may not be able to take a person or persons to court on a burglary. However, the APD may be able to go to court to stop activity using gang ordinances. In that way, the bill is not an extra cost. REPRESENTATIVE VEZEY said he had a question on Section 1 of the bill, paragraph B. He said he is a very strong advocate of the British system, but he did not know if it was equitable to take this area of statute and apply the British system when in every other area of civil law is applied with the American system as modified by Rule 82. MS. KNUTH asked for clarification. REPRESENTATIVE VEZEY stated that in paragraph B, the bill reads that the prevailing party gets full attorney fees paid. He refers to that as the "British" system. The United States, of course, uses the "American" system in which both sides pay their own attorney fees. Alaska also uses Rule 82, in which a portion of the attorney fees are paid based on the amount of recovery received. REPRESENTATIVE VEZEY reiterated that he is a staunch advocate of the British system, but he wondered if is equitable for that portion of the civil laws to be taken out and the British system applied. He noted that all the tort and civil cases will still be tried using Rule 82. Number 318 MS. KNUTH replied that in this instance, what justifies the change is that these are criminal acts committed against a victim. Requiring that the victim absorb some of the attorney's fees necessary to make themselves whole further victimizes them. It is on that basis that the distinction has been made. There are exceptions to Rule 82, but Ms. Knuth would certainly agree with Representative Vezey that the state needs to be reasonable in its approach to this provision. She hopes the provision is fair in this case. REPRESENTATIVE VEZEY asked if she was envisioning that these cases would be subject to punitive damages. MS. KNUTH believed that would be a possibility. That is one of the elements of damages that would be recoverable. REPRESENTATIVE VEZEY asked if Ms. Knuth thought that victims should be able to retrieve damages for trouble and punitive damages. MS. KNUTH expected that the judge would look at the totality of the circumstances. REPRESENTATIVE VEZEY thought that was a jury decision. MS. KNUTH said a judge does have control over certain things. He or she may say it is unreasonable for a jury to make an award amount. If damages are awarded for "trouble," that is a form of punitive damages. One would need to be careful in that situation to make sure there is not "double" recovery. However, there could also be instances in which the actual loss is fairly minimal, and even with trouble damages, there still has not been the statement the state and the victim wants made with an award of punitive damages. Number 476 MS. KNUTH also noted that she does not expect gang members to be extremely well-off financially. Therefore, to some extent this may be a hollow victory that the state is providing to victims. There may not be any money to be had anyway. REPRESENTATIVE VEZEY agreed. He also wished to express concern that the bill is making the parent responsible if the minor is not emancipated. Representative Vezey conceded that he does not know who the street gang people are. But he envisions a lot of single parents who have lost control of their children and have not had their minor child emancipated primarily because of the legal cost involved. He noted that hope may also be a deterrent to emancipation. REPRESENTATIVE VEZEY asked if the bill was putting a parent who was probably not-so-well-off in extreme financial jeopardy. He realized that the gang members referred to were minors, but probably over the age of 12. He believes that people over the age of 12 are beyond the age of reason. Therefore, he was concerned that the bill creates a problem for parents who are already having all the difficulty they can handle. REPRESENTATIVE VEZEY asked if the bill was really being reasonable in that respect. He did not think there was any money to be had from the gang members. A law is being created with HB 205 which allows the state to go after parents who have lost control of their children. He does not know of any parents who have said they wanted their child to grow up and become a gang member. Number 615 CO-CHAIR TOOHEY said if a parent has "lost" their child, and the child has run away from home two or three times, and the parent calls the police and says she/he has a child that cannot be controlled and that statement is on record, there are Alaska laws that say that this child is no longer the responsibility of the parent. MS. KNUTH said the DOL would be amenable to an amendment that tracks such provisions. Ms. Knuth remembered that such provisions were incorporated into a bill that increased a parent's possible liability from $2,000 to $10,000. That provision says that if the child is a reported runaway, there is no liability for acts that occur after that time. The DOL would be amenable to such an amendment. MS. KNUTH also noted that victims have done nothing. She/he was simply walking in the wrong place or cannot afford to live in a better neighborhood. That person's situations and circumstances is being compared with the household that is made up of the juvenile gang members and the gang member's parent(s). She asked who, between the victim and the parent, was more able to control--not who has control, but who was in a better position to control--and who was more responsible for what the juvenile gang member has done. MS. KNUTH understood that parents can lose control of their children. But at the same time, there is a far closer connection between the parent and child than there is between the victim, who is in a hapless situation. One of the things that the legislature does is to look at that situation and find a balance. It must make a decision about who should bear the loss. She is sympathetic to the situation being described, and she would hope that the runaway amendment would address most of the concern. Number 747 REPRESENTATIVE ROBINSON said she was still concerned about the zero fiscal notes. MS. KNUTH said she would try to speak to as many fiscal notes as she could, on behalf of the Executive Branch. The conduct that the bill is trying to reach is criminal conduct. Everyone is required to deal with that conduct and the results of that conduct already under existing law. The difference between charging someone with theft and charging someone with theft and an aggravator that was done on the behalf of a gang is an incremental increase in the prosecutorial effort. The case is already present. The handling is different. MS. KNUTH explained the same thing applies for the judge. The judge is sentencing this person. The difference between sentencing for a theft charge and then also considering the aggravating factor is incremental. At times, the Public Defender's Office and the Office of Public Advocacy do not go along with everything that the DOL, Criminal Division proposes. There should be separate credibility to their zero fiscal notes because all divisions and departments are already dealing with the problem. Therefore, the entities do not believe that separate costs are going to be incurred. Number 845 MS. KNUTH said most of the reason for HB 205 is to provide something that gangs can become familiar with. The bill is as much of a publicity campaign as it is a new approach and a new fix-it. Gangs need to feel targeted. Gangs need to feel vulnerable and understand they are being focused upon. MS. KNUTH noted the focus of law enforcement is also being changed to specifically notice gang activity. However, mostly more flexibility is being created in the system, rather than bringing in new crimes and prosecuting those crimes. Number 880 MS. KNUTH asserted it is for that reason that the zero fiscal notes have integrity in HB 205. Ms. Knuth understood the concern of the HESS Committee members, however. CO-CHAIR BUNDE assured Ms. Knuth that she was not held responsible for any errors in the fiscal note process. Co-Chair Bunde said that he would like to hold the bill until Tuesday, May 2 because there are concerns about the bill. He asked for an amendment incorporating the runaway provision to protect parents who are trying to do the best they can. Number 942 REPRESENTATIVE ROKEBERG asked a question about the title. The title reads, "...restricting criminal street gang offenders from obtaining a permit to carry a concealed handgun...." He asked what sections of the bill specifically relate to that provision. MS. KNUTH answered that Sections 8 and 9 refer to those provisions. She explained that if a person has been convicted of a crime that identifies that person as a gang member, that provision would be applied. Number 968 REPRESENTATIVE VEZEY asked Ms. Knuth if she would support a change in statute which said if a person is a victim of criminal assault by a street gang, the victim is authorized to use force to protect themselves, including deadly force. MS. KNUTH said she would not. A system of justice is needed that protects people from ourselves as well as each other. CO-CHAIR TOOHEY noted that she has obtained a permit to carry a concealed weapon. If she is beset upon by a street gang, and she is in fear of her life, she is by law allowed to defend her life. CO-CHAIR BUNDE noted that Ms. Knuth had referred to a first degree crime in which force was applied to increase gang membership. Co- Chair Bunde understands that force is always involved with gang recruitment and in the initiation. People can be "jumped in" or "sexed in." He said he would leave the explanation of the sexed-in ritual to the imagination of the HESS Committee members. However, when one is jumped in, the individual is beaten brutally. The initiate asks for this beating, and participates in it. CO-CHAIR BUNDE asked if that, therefore would not move any initiation to first degree, as there is an incredible assault. Individuals are kicked, pounded and jumped on, and when it is all over, they "get a hug." MS. KNUTH felt that would fall under the felony of recruitment violation. She would charge those actions as felony actions, on top of the proper charge for that conduct within itself. MS. KNUTH thanked the committee for hearing the bill. CO-CHAIR BUNDE wanted to make it clear that his comments about being jumped in did not mean that he was discouraging the first degree charge from being applied. Number 1094 REPRESENTATIVE ROBINSON asked how this bill would affect the types of initiations that occur in schools. There has been a real push to eliminate those types of initiations. MS. KNUTH expected that many of those instances do not tie in with gang membership or the existence of a gang. She encouraged the use of other tools to try and deal with that problem. Ms. Knuth acknowledged that she did not know enough about that particular problem. If it could be shown that the behavior was gang related, then some of the charges provided for in HB 205 could be utilized. However, it sounds like there are some assaults and reckless endangerments going on that do not look beyond the initiation.