Legislature(2001 - 2002)
01/18/2002 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 85 - AGGRAVATING FACTORS IN SENTENCING Number 0051 CHAIR ROKEBERG announced that the committee would hear HOUSE BILL NO. 85, "An Act relating to conduct directed at a school employee as an aggravating factor for criminal sentencing purposes." Number 0079 REPRESENTATIVE COGHILL, speaking as the sponsor of HB 85, relayed that HB 85 would add one more category of aggravating factor to AS [12.25. 155(c)] for the purpose of increasing the presumptive term. He noted that in working with one of the members of the National Education Association (NEA), it was brought to his attention that additional respect should be shown to people who work within schools. He suggested that HB 85 would round out several things that the legislature has done with regard to safety in public schools, would "up the level for those who would direct an assault within the school", and would be the 30th aggravating factor listed in statute. He added that HB 85 "ups the level of respect that we would demand within the public school," and is intended to cover all school employees, not just teachers, because there are many different kinds of employees working in schools: teachers, assistants, lunch attendants, to name a few. He concluded by saying that the issue of public safety is at the top of his list. Number 0281 VERNON MARSHALL, National Education Association-Alaska (NEA- Alaska), began by extending his organization's thanks to the sponsor for introducing HB 85, to the committee for hearing it at this time, and to the legislature for efforts to address issues regarding safe schools, which, at a meeting in 1996, NEA- Alaska's delegate assembly identified as a topic of real concern. He relayed the belief that "the union" has a responsibility to help in the identification and development of "disciplinary safety programs" within school districts. He also relayed the hope that HB 85 would act as a deterrent to any disruption or violence that may occur within school buildings or within the school system. MR. MARSHALL suggested that passage of HB 85 would simply make an assault or violence against a school employee an "aggravator" that could be considered by a judge in a sentencing procedure, similar to what is currently done with regard to an assault or violence against a police officer or firefighter. The aggravating factor would not be automatic, he added, but could simply be considered by the court in adjudicating a sentence. Enacting HB 85, he posited, would assist schools by serving notice that disturbing the peace in schools is a serious matter. He said, "we don't believe that it's going to stop violence, it is ... simply maybe one deterrent that would be made available to the courts... in the event that a judge had to decide a matter that related to assault as it applies to a school employee." REPRESENTATIVE OGAN said that he has a philosophical problem with creating a "class distinction" in statute based on someone's choice of profession. He noted that he would probably be a little bit more supportive if, instead of applying to just employees of the school district, HB 85 could apply to any person assaulted on school grounds. He asked whether the idea behind HB 85 is to keep the kids safe as well as the employees. He noted that there are other groups of people - for example, legislators - who could be added to the list of aggravators based solely on type of employment. He asked why an assault on a school employee should warrant a bigger sentence in comparison to an assault on anyone else. Number 0681 MR. MARSHALL opined that the issue boils down to the fact that upon being hired, school employees generally have the duty and responsibility to ensure that classrooms are orderly and that instruction can take place. As the adult in a classroom, he added, the school employee is, in a sense, the first line defense should any kind of violence occur, whether it originates outside and then comes into the classroom, or originates in the classroom to begin with. He suggested that with regard to HB 85, the aggravating factor would be applicable to the school employee relative to the duties and responsibilities of his/her job. Using the example of an emergency medical technician (EMT), he pointed out that an EMT has the job of ensuring that the health and safety of individuals is protected; thus anyone assaulting an EMT in the context of his/her job would be subject to an [aggravator]. He suggested that under HB 85, the same would be true if the victim were a teacher, aide, or other school employee with a duty or a charge over individuals; a judge in any resulting court proceeding could then use the aggravator. He specified that it is the duties and responsibilities incumbent on a school employee that warrant inclusion on the list of aggravators. REPRESENTATIVE OGAN noted that legislators have staff who are the front line and must face people who might be very angry about government. He reiterated that he would feel better about HB 85 if the aggravator pertained to anyone who does violence on school grounds or at a school function, regardless of who the victim is. In this way, he added, parent-volunteers and students would also be covered. REPRESENTATIVE JAMES noted that she had been thinking along the same lines as Representative Ogan. She suggested that the intent is not necessarily to just protect teachers, but to make classrooms safe, which would also offer protection to teachers. She said her inclination would be to broaden the scope of HB 85 to include conduct occurring on school property, when school is in session, and at any school function. She surmised that the intent is for HB 85 to act as a deterrent by making the penalty worse. And to this end, she reiterated that she would be in favor of broadening the scope of HB 85. Number 0975 REPRESENTATIVE KOOKESH said he liked HB 85 and that he appreciated the specificity of it. He noted that under Alaska law, teachers are held to a higher standard of care when it comes to children, thus he is in favor of holding "people who interface with teachers" to a higher standard in order to protect teachers. He posited that by having legislation such as HB 85, it gives notice to parents and other people that "if you come into the school and commit an assault, then be prepared for the consequences." And while he acknowledged the importance of being fair to everyone and not creating a special class of people, he pointed out that teachers are a special class of people and, thus, there should be legislation that protects them. He opined that the message ought to be that "if you're a teacher, we'll hold you to a higher standard of care because of those children, but we'll also protect you a little bit more than we would normal people who are outside of that classification." He said he is very supportive of HB 85 in its current form and doesn't want to water it down any more than necessary. REPRESENTATIVE COGHILL said he agreed. Number 1096 CAROL COMEAU, Superintendent of Schools, Anchorage School District, testified via teleconference. She referred to a newspaper article in members' packets highlighting an incident in December at an Anchorage school in which a parent assaulted a teacher during class and tore a classroom phone out of the wall when the teacher tried to use it to call for help. Ms. Comeau noted that the Anchorage School District strongly supports HB 85 [because] it pertains to all school employees. She opined that adding this class of people to the list of aggravators will help the courts sentence people more appropriately - depending upon the situation - offers more protection, and sends the right message to public employees that work in schools. She added that HB 85 could even apply to volunteers working in schools, thus sending the message that "we do not accept anyone coming into a school and assaulting anybody in the school for any reason." With regards to the aforementioned incident, she noted that the Anchorage School District is still providing counseling and psychiatric assistance to help mitigate the impact which that incident has had on the students who witnessed it. She added that even though she has already issued a district-wide no-trespass letter, some of the students still have quite a bit of fear that this sort of incident could happen again. CHAIR ROKEBERG noted that the defendant in that Anchorage incident faces two counts of fourth degree misdemeanor assault. MS. COMEAU added that the Anchorage School District is working very closely with the police department and the municipal prosecutor's office, and that a trial date has been set for 3/11/02. CHAIR ROKEBERG explained that HB 85 as it is currently written would not have any impact on that case; HB 85 only applies to felonies and if the committee wished for the aggravator to apply in the aforementioned case, the legislation would have to be amended. MS. COMEAU said that the Anchorage School District wants to ensure that there is some penalty - some jail time - for these kinds of offenses. "This is absolutely egregious behavior and it just can't happen again," she stated. Number 1307 REPRESENTATIVE COGHILL confirmed that HB 85 would apply to "all the felony counts and sexual assault." CHAIR ROKEBERG, after noting again that HB 85 would not apply to fourth degree [misdemeanor] assault, said that his recommendation would be to expand the scope of HB 85 so that it would apply to that type of offense. He then asked Ms. Comeau to describe an incident that took place at Mountain View [Elementary] and the resulting charges. MS. COMEAU explained that on 5/7/01: Jason Prichard (ph) came onto the school grounds before there was supervision on the playground - students were there too early and they were lining up for the breakfast program - and he basically started slashing children, and he sounded very deranged (as I understand it) ... saying that he was going to kill children so that they would be sure to go to heaven. ... He got into the school and ended up in a classroom and slashed one young man quite severely after he had already slashed three other boys in the throat. There was immediate medical assistance there for the office staff who called 911, and the emergency personnel, police, and EMTs were there within [a] very short time, and they did subdue the man and he was arrested and taken away. ... He's gone through the trial, as I understand it, and his sentencing has not happened yet, so he's under custody. ... I don't have the specific charges as far as what was filed, but he has been adjudicated, and I'm not sure where exactly that is in the process. CHAIR ROKEBERG requested that Ms. Comeau check to see what the ultimate charges were - what the indictments read - "because that's when the aggravators would come into play." Number 1453 MS. COMEAU, in response to questions, confirmed that she would like all school employees to be covered, not just teachers and principals. She stated that there are a number of paraprofessionals who could potentially be assaulted, and, therefore, should also be covered under HB 85: teacher's assistants; noon-duty attendants; custodians; and, through "school business partnerships," community members. REPRESENTATIVE MEYER pondered whether HB 85 should include a definition of school employee. He noted that volunteers might not technically fit the definition of a school employee, and that half of the school bus drivers [in Anchorage] are employees of a private company. MS. COMEAU acknowledged that there have been "some close calls with some of our bus drivers when parents try and get on the bus and accost our drivers or attendants." Therefore, she opined, HB 85 should cover contracted employees as well as anybody else who has business with the schools. REPRESENTATIVE OGAN noted that Ms. Comeau is making his case: HB 85 should cover anybody who is assaulted on school grounds, not just school employees. He requested that the sponsor consider creating a committee substitute (CS) so that if a person commits a violent act on a school ground, on a school bus, or at any school function, he/she would be subject to HB 85. "I think we should cover the kids and the people that are around schools; schools should be safe places," he stated. Referring to the Mountain View Elementary incident, he also stated that, "there should be an aggravator for weirdoes that come on school grounds and try to cut kids' throats." REPRESENTATIVE JAMES pointed out that parents spend time on school grounds too. She surmised that there are two sides to the issue raised by HB 85: one, to make school employees feel more comfortable and protected; and two, to ensure the emotional and physical well-being of the children. She said, "It seems to me like we ought to be all-inclusive," which she then defined as expanding HB 85. To further her point, she offered the examples of kids on a bus attending a ballgame at another school and of volunteers who assist at schools. Number 1688 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference and said that the PDA objects to HB 85. She explained that this opposition is not meant to imply anything negative about school employees; however, if the goal is to instill respect and deter people [from violence], HB 85 is not an effective way of meeting the problem - it will not deter people. She said: I wish that people thought before they acted; unfortunately, most of the time, crimes are committed by people who do not think before they act. They are acting in the heat of passion; they're not thinking about whether ... there's going to be an aggravating factor involved in their punishment. MS. WILSON continued: In terms of instilling respect, certainly it is very, very important that our community respect staff at school [and] teachers; they are deserving of utmost respect. They are critical to our society. They are one of the most important things that we have in terms of ... what we do with our children. But the problem is that this bill punishes somebody after the fact. It seems that effort should be made more at the front end in terms of protection/public safety; ... giving somebody a more severe sentence after something bad has already happened seems to miss the point. This particular legislation does not just address assaults, which seems to be one of the goals of it, this would also affect felonies involving theft. ... There are thefts that arise to the felony level. If somebody who worked in the school committed a theft against another school employee and it rose to a felony level, this aggravator could apply if it was directed at a teacher because [he/she was] a teacher [or] at a janitor because [he/she was] a janitor. So ... it seems to be more inclusive than it need be. Number 1814 ... All victims deserve respect. Carving out factors that deal with a specific interest group - or because somebody has particular job - is problematic. ... There already is provision in the aggravators for police officers, firemen, emergency medical technicians, those types; but certainly all people have value. What about social workers that deal with kids? What about daycare providers that are working with children off school [grounds]? What about legislators and their staff? What about postal workers? What about doctors at hospitals? What about treatment providers? Transportation employees? Airport workers? Public utility workers? What this does is that every time something happens, there's new legislation to cover that particular job. This piecemeal approach to the criminal sentencing code is problematic. Perhaps there should be an overall look at the sentencing scheme. One of the purposes it seemed - or one of the goals of this - was to provide discretion to a judge. Maybe there needs to be a rethinking of felony presumptive sentencing that make these aggravators and mitigators come into question. Number 1893 MS. WILSON went on to say: There are a number of states across the country that have recently rethought presumptive sentencing or mandatory sentencing schemes. Recently, this last year, Connecticut, Indiana, Louisiana, and North Dakota have repealed certain mandatory-sentencing laws because ... the legislature has determined that too many dollars are being spent on prison operations, and [that] there needs to be some alternative sentencing programs. We already have 29 aggravators to felony presumptive sentencing, and now we're going to add one more for a particular job. Are we going to recognize other people now, piecemeal, for their jobs? This is a piecemeal approach for special interest, and even though we all agree that teachers are valuable, this legislation is not necessary. There are other aggravators that certainly could apply that already exist, but maybe rethinking how we look at aggravators would be a good approach. And ... I just thought I'd do a little bit of education on ... this felony sentencing scheme.... Aggravators apply to felonies; they do not apply to misdemeanors. So, [for] the instance referred to in December, [HB 85] would not be applicable - ... it certainly doesn't address that. The questions about moving towards legislation [pertaining to] ... what happens on school grounds - well again, that may also come to needing to be modified. What about sports events? What about things that occur off school grounds but are school related? ... There are oftentimes offenses that occur against school employees that are not related to school. MS. WILSON, in response to a question, said that aggravators do not apply to misdemeanors, adding that there is already a lot of discretion in misdemeanor sentencing. Aggravators only apply to felony presumptive sentences; thus there are felony situations in which there is no need to go to aggravators because they are not presumptive-sentencing situations. She also pointed out that aggravators do not apply to "city cases" either. In response to whether anything precludes aggravators from applying to misdemeanors, she said simply that current law doesn't provide for it. She acknowledged, however, that the legislature could provide for it [via legislation]. CHAIR ROKEBERG asked for an explanation of the distinction between "presumptive and non-presumptive." MS. WILSON explained that for a class A felony, the sentencing range is up to twenty years. If the offender has a prior felony conviction, the presumptive sentence is ten years. If it is a person's first felony conviction, the presumptive sentence would be five years. If a first-time felony offender used a firearm or a dangerous instrument, or inflicted a serious physical injury, the presumptive sentence would be seven years. Those are mandatory minimum sentences. For some felonies, for example, a class C felony, the sentencing range is zero to five years. However, she added, there are presumptive sentences that would require that a second-time felony offender receive a presumptive sentence of two years. In that example, the offender could not receive less than two years (unless there are mitigators), or over two years (unless there are aggravators). She also pointed out that a third-time felony offender would receive a presumptive sentence of three years. Number 2123 BOB ROSES, President, Anchorage Education Association, testified via teleconference and said that he represents 3,500 certificated employees in Anchorage. He reported that many of his members have made it perfectly clear that they feel that they need increased deterrents for acts of violence or assault. He noted that there are many situations in which verbal confrontations could easily escalate into physical confrontations. "We think that these types of deterrents that are clearly articulated may help deter some of that from happening," he added. He went on to say that there are very few topics that emotionally charge adults as much as issues regarding their children. He opined that educators should be set aside as a special group, noting that for him, the term educator means anybody working with children in an educational environment even if he/she is a volunteer, a counselor, or a coach. MR. ROSES recounted that there has been a lot of discussion with legislators and among educational advocates regarding teacher recruitment and retention. He suggested that HB 85 is a simple way of showing educators, and anybody else that works with the schools, that they are indeed valued and supported. He referred to the previously mentioned fact that there are already other groups that have been singled out via legislation for [aggravating factors], and to the existence of legislation that has created drug-free and weapon-free zones around schools. Using the last point as an example, he suggested that it is time to create a violence-free zone for schools. And while he acknowledged that such zones might not eliminate the occurrence of violence on schools grounds altogether, he posited that posting notice that violence will not be tolerated within a certain perimeter could deter its occurrence and allow school employees and children to feel safer. He also suggested that prosecution of people who commit violent acts within a violence- free zone could become easier. Number 2302 MR. ROSES mentioned that there are already safety procedures in place by which anyone who comes into the building is supposed to check in. He pointed out that these procedures were not effective in preventing the aforementioned incident that occurred in December; in that incident, the parent did check in and was delivering her child to the teacher. He posited that having "strongly, well-articulated deterrents" may make people think twice before they go to a school already angry - that perhaps they would "try to do something to defuse themselves before they get there." In response to a question, he explained that at weapon-free school zones in the Anchorage School District, the only people who may come within those posted perimeters with weapons - regardless of an individual's weapons permits - are on-duty law enforcement officials. REPRESENTATIVE OGAN again related that he would prefer to have an aggravator apply to acts committed on [school grounds] rather than just apply to acts committed against a [school employee]. REPRESENTATIVE COGHILL noted that HB 85 is not intended to be a "panacea for school safety." He acknowledged that school safety has become one of the legislature's focuses over the years because of school shootings and drug use. He pointed out that the responsibilities laid upon Alaska's schools are to "detect, deter, protect, and teach." Most school employees have to go through extensive training, they are the ones that are shoulder to shoulder with the students, and they are ones that know what's going on in the building. He said, "There are requirements put on these folks that aren't put on anybody else with regard to children." TAPE 02-2, SIDE B Number 2472 REPRESENTATIVE COGHILL acknowledged that the comments regarding daycare brought up a good point. He then said he agreed with Ms. Wilson that "if we go down this road of aggravators, or almost any delineation of any category, we kick open the discussion" regarding presumptive sentencing and aggravators. He noted, however, that the point he is trying to make is one of showing respect for those who have to deal with the increasing occurrence of violence in schools. "We're talking about holding [perpetrators] ... accountable to the highest degree, especially when we hold those employees so highly accountable," he stated. He suggested that this discussion is about giving judges another tool to use in sentencing felony offenders. He added that although he is open to discussing whether HB 85 should cover anyone on school grounds, he thinks that having it applicable only to school employees is sufficient. REPRESENTATIVE COGHILL said that providing an aggravator for behavior directed against school employees matches the level of responsibility placed on them. He posited that HB 85 is intended to honor the victim and the law, "not any class of people...." He noted that he is willing to hold HB 85 and discuss it further, and suggested assigning it to a subcommittee. In conclusion, he offered the point that AS.11.61 regarding weapons misconduct already contains the language: ... within the buildings of, on the grounds of, or on the school parking lot of a public or private preschool, elementary, junior high, or secondary school, on a school bus while being transported to or from school or a school-sponsored event, or while participating in a school-sponsored event.... Number 2314 REPRESENTATIVE JAMES said that although she is sympathetic to this issue, she did not want to "put something down here that isn't going to do anything." She noted that she has respect for teachers and people who work with children, and that she wants them to be assured that if they are mistreated, there will be some penalty attached. She pointed out though, that she'd rather figure out a way to protect them from violence in the first place. Referring to the aforementioned incident in December, she said that she is bothered by the fact that HB 85 as currently written would not affect that sort of situation because it only resulted in misdemeanor charges. She opined that the term "school employee" is not broad enough to "get who we really want to cover," adding that she does not necessarily want to have six lines of definition but she is willing to discuss the issue further in order to achieve the desired goal. Legislation needs to have a positive effect, she opined; if it just says something to make people feel good, it is not worth the paper it is written on. REPRESENTATIVE MEYER said he agrees with Representative James. He added however, that he would like a better definition of what a school employee is because there are so many different kinds of people involved in the educational system these days. He asked whether HB 85 would pertain to both public and private schools. He noted that he agrees with the intent HB 85 and the idea that "we have to protect our kids and the people who are overseeing our kids." Number 2184 CHAIR ROKEBERG observed that the issue of broadening HB 85 revolves around the definition of what a school employee is. He opined that broadening the scope of HB 85 as Representative Ogan has suggested would have it become "extremely difficult to use in ... terms of an aggravator." He noted that he is inclined to keep HB 85 simple and focused. On a slightly different topic, he mentioned that hate crimes, which the committee is seeking to address via other legislation, are currently only addressed in terms of aggravators. And on that topic, he also mentioned that since some thought is being given to expanding aggravators as they pertain to hate crimes so that misdemeanors are included, perhaps the same could be done for aggravators relating to assault. REPRESENTATIVE COGHILL said that he thinks any discussion about having aggravators apply to misdemeanor assaults should be separate from the issue of HB 85. Noting again that HB 85 only applies to felony behavior, he said that any deviation from that should be in the form of a totally different bill. He stipulated that he wants HB 85 to address "after-the-fact" sentencing and respect for those individuals in the educational system. He opined that HB 85 as written "fills a place because we have ratcheted up the responsibility [level] in the school" for those that work there. On the point of keeping HB 85 simple, he said, "let's take this one law that's already there, and these people who're already employed that we require so much of, and just follow suit with the aggravators," rather than rewriting the current statute completely to include more people and more circumstances. Number 1984 REPRESENTATIVE JAMES noted that she is in a quandary because although she agrees with the sponsor's intent, she is not convinced that HB 85 does anything. She said that she wished someone from the Department of Law (DOL) were present to answer questions on this issue, one of them being how many cases there have been that would have been affected by HB 85. She surmised that if HB 85 is going to come into play frequently, then there may be an increase in associated costs. REPRESENTATIVE COGHILL offered that with an aggravator, the issue is sentencing and therefore the biggest cost would be whatever the added incarceration engendered. CHAIR ROKEBERG remarked that HB 85 has two zero fiscal notes, one of which contains the comment that not many such cases are anticipated. REPRESENTATIVE JAMES said, "If we're going to pass a piece of legislation today and ten years from now we have never used it, I'm not sure we're using our time and the money of doing this in the best interest of the people in this state." She suggested that if all HB 85 does is make the statement that, "We like you a lot and we're not going to let this [violence] go unnoticed," then the discussion today accomplishes that goal. REPRESENTATIVE COGHILL offered to have the DOL available for questions at the next meeting on HB 85. Number 1642 CHAIR ROKEBERG mentioned that it might be possible to have the aggravator in HB 85 apply to misdemeanor assaults (rather than all misdemeanors) as well as felony assaults. REPRESENTATIVE COGHILL said he objected to the idea of including misdemeanors in HB 85; he only intended to have the aggravator apply to felony sentencing. He then said he would be glad to hold HB 85 for further review and request another hearing when he has answers to the questions raised. REPRESENTATIVE OGAN commented that the committee process works. [HB 85 was held over.]
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