Legislature(1995 - 1996)

04/27/1995 02:05 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                
                                                                               

Document Name Date/Time Subjects