Legislature(2005 - 2006)CAPITOL 120
02/16/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB97 | |
| Department of Health & Social Services, Division of Juvenile Justice | |
| HB88 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 88 | TELECONFERENCED | |
| + | HB 97 | TELECONFERENCED | |
HB 88 - OFFENSES BY MINORS/AGAINST TEACHERS 2:16:12 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 88, "An Act relating to certain weapons offenses involving minors; to aggravating factors in sentencing for certain offenses committed against a school employee; and providing for an effective date." CHAIR McGUIRE after ascertaining that no one else wished to testify, closed public testimony on HB 88. 2:17:54 PM REPRESENTATIVE GRUENBERG referred to Amendment 1, labeled 24- GH1096\A.1, Luckhaupt, 2/7/05, which read: Page 1, line 2: Delete "against a school employee" Insert "on school grounds, on a school bus, at a school-sponsored event, or in administrative offices of a school district" Page 2, lines 16 - 18: Delete all material and insert: "(31) the offense is a violation of AS 11.41 or AS 11.46.400 and the defendant directed the conduct constituting the offense against a person while the person was on school grounds, on a school bus, at a school-sponsored event, or in the administrative offices of a school district; in this paragraph, (A) "school bus" has the meaning given in AS 11.71.900; (B) "school district" has the meaning given in AS 47.07.063; (C) "school grounds" has the meaning given in AS 11.71.900." REPRESENTATIVE GARA, referring to a letter in members' packets from Mr. Linton, Department of Law (DOL), dated 2/16/05, which detailed three out of four cases in which a discretionary waiver was sought but not granted, asked why the cases involving murder weren't automatically waived into adult court. ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that it was because they involved a juvenile defendant under 16 years of age. 2:19:28 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1. REPRESENTATIVE COGHILL objected, saying he is not a big fan of the school grounds issue, though he can understand why they might want the bill to apply to an incident that occurs on a school bus. He offered his belief that specificity with regard to location could create problems. CHAIR McGUIRE offered her understanding that as currently written, the bill could apply to assaults that are mere bumps and pushes. REPRESENTATIVE GRUENBERG noted that AS 11.61.195(a)(2) specifies location, and indicated that he's attempting to do something similar with proposed AS 12.55.155(c)(31) because he wants to protect everyone who is on school grounds. He added that he would be happy to consider a friendly amendment that would say the conduct has to happen while school is in session. 2:25:38 PM REPRESENTATIVE DAHLSTROM asked Representative Gruenberg whether would consider it a friendly amendment to say "certain crimes committed against school employees" and then insert "on school grounds, on a school bus". She posited that such language might take care of concerns that the language is open ended and would apply to anyone, while still getting to the root of "where we want to go." REPRESENTATIVE GRUENBERG said he would consider such language a friendly amendment because it would make the language more precise. He asked, however, whether members have any interest in having the aggravator apply when anyone is assaulted "during a school event, on school property, or in a school bus". CHAIR McGUIRE said she is not sensing a tremendous amount of support for that concept. She offered her understanding that Representative Dahlstrom is proposing an alternative that would incorporate a lot of the work done by Representative Gruenberg, and surmised that that alternative would have more committee support. 2:27:33 PM CHAIR McGUIRE clarified her understanding that Representative Dahlstrom's suggestion would be to leave the language specifying that the assault was directed at a school employee and then add language which would specify that the assault occurred on the school grounds, on a school bus, at a school-sponsored event, or in the administrative offices. REPRESENTATIVE GRUENBERG said he would support that change, but suggested that the language also specify that the conduct occurred while school is in session. REPRESENTATIVE DAHLSTROM concurred with Chair McGuire's synopsis of her suggested amendment to Amendment 1. REPRESENTATIVE KOTT said he is concerned that perhaps student teachers would not be covered by language specifying school employee, and remarked that they should be afforded the same protection. REPRESENTATIVE GARA suggested adding language so that the bill covers "school employee, volunteer, or intern". CHAIR McGUIRE said such would not cover school bus drivers that are on contract. REPRESENTATIVE GARA suggested also adding "contractor"; thus the language would read in part, "school employee, intern, volunteer, or contractor". REPRESENTATIVE GRUENBERG said he supports that concept, but asked why they wouldn't also protect children. 2:30:42 PM REPRESENTATIVE COGHILL offered his understanding that children are already protected, and reiterated his belief that specificity with regard to location could create problems. REPRESENTATIVE GRUENBERG asked Ms. Carpeneti whether there is an aggravating factor for assaulting a child on school grounds. MS. CARPENETI said not to her knowledge. She noted that a problem with specifying which people the bill applies to is that the person who fills up the school vending machines might not then be covered. She acknowledged that that might be a justification for focusing on location. CHAIR McGUIRE noted that HB 88 does not discuss the place so much as person. MS. CARPENETI concurred. 2:32:53 PM CHAIR McGUIRE noted that there is concern about altercations between students having a very serious aggravator apply. REPRESENTATIVE GRUENBERG said he did not intend for the aggravator to apply to such situations; rather, he merely wants to protect children from serious assaults such as occurred at Columbine High School in Colorado. He pointed out that applying an aggravator is not mandatory, and suggested that the committee could clarify his intent in some fashion. He said he feels very strongly that children must be protected, that children should be safe at schools. REPRESENTATIVE COGHILL agreed, but pointed out that the bill already specifies, "school employee" and "on school grounds or at a school-sponsored event". He offered his understanding that the bill will be applicable only after there is already a conviction; thus he is not sure that [changing the language] will make any difference. Instead, there is the potential to create more problems than are solved. CHAIR McGUIRE, in response to comments, indicated that the question before the committee is whether to say that anyone who is in the aforementioned areas, regardless of who they are, who is assaulted by another adult, will have this aggravator available. REPRESENTATIVE GRUENBERG mentioned a situation that occurred several years ago in his district where a person came onto school grounds with a knife and started slashing children. Such a situation is illustrative of the need for language that will protect both children and adults. 2:38:17 PM REPRESENTATIVE COGHILL pointed out, however, that the bill doesn't actually protect children, instead it merely provides an aggravator for sentencing purposes after the assault has already occurred. He suggested that if the goal is to protect children, then they should consider providing for personnel in the schools to perform that function. REPRESENTATIVE GRUENBERG said he would accept that suggestion as a friendly amendment. REPRESENTATIVE COGHILL withdrew his objection. 2:38:52 PM REPRESENTATIVE GRUENBERG urged the committee adopt Amendment 1. CHAIR McGUIRE noted that Representative Dahlstrom had suggested an amendment to Amendment 1. REPRESENTATIVE DAHLSTROM withdrew her suggested amendment to Amendment 1. CHAIR McGUIRE objected to the motion to adopt Amendment 1 for purposes of discussion. MS. CARPENETI indicated that the administration is amenable to Amendment 1. 2:40:02 PM REPRESENTATIVE GARA asked whether there are currently any aggravators that increase sentences when the victim is a minor. MS. CARPENETI said she thinks there are, since there are aggravators that apply when the victim is extremely vulnerable, and that would include a child. REPRESENTATIVE GARA asked whether such would apply if the victim is a 16-year-old. MS. CARPENETI said she wouldn't think so, depending on the circumstances. REPRESENTATIVE GARA sought assurance that the change proposed by Amendment 1 would not create an aggravator that would be redundant to an existing aggravator. MS. CARPENETI offered her belief that it would not. CHAIR McGUIRE withdrew her objection. REPRESENTATIVE KOTT said he thinks that Amendment 1 is a good amendment. CHAIR McGUIRE asked whether there were any further objections to Amendment 1. There being none, Amendment 1 was adopted. 2:41:41 PM CHAIR McGUIRE referred to Amendment 2, labeled 24-GH1096\A.3, Luckhaupt, 2/8/05, which read: Page 3, lines 14 - 15: Delete all material and insert: "(4) that is misconduct involving weapons in the (A) first degree under (i) AS 11.61.190(a)(1); or (ii) AS 11.61.190(a)(2) when the firearm was discharged under circumstances manifesting substantial and unjustifiable risk of physical injury to a person; or (B) second degree under AS 11.61.195." CHAIR McGUIRE opined that Amendment 2 speaks to the heart of bill, which adds offenses to the automatic waiver provision of current statute. REPRESENTATIVE GARA made a motion to adopt Amendment 2. CHAIR McGUIRE objected for the purpose of discussion. REPRESENTATIVE GARA remarked that the bill aims to automatically transfer a whole class of juveniles into adult court - juveniles who engage in weapons crimes, juveniles who engage in very serious activity. One of the crimes the bill proposes to waive into adult court, however, pertains to the crime of discharging a firearm from a propelled vehicle and damaging property; shooting at a road sign could constitute such behavior. Since other sections of the law already address similar behavior wherein there is an unjustifiable risk that harm could befall a person, Amendment 2 proposes to eliminate the proposed waiver into adult court if the behavior could only cause property damage. If Amendment 2 is adopted, juveniles who engage in a weapons crime that involves substantial risk to a person would still be waived into adult court. 2:44:00 PM MS. CARPENETI said that although she generally agrees that property crimes are different from crimes against a person, under the circumstances of first degree misconduct involving weapons, it is really hard to imagine that somebody shooting a gun out of a moving vehicle wouldn't be endangering another person. However, to the extent that there might be those unusual circumstances that the behavior could only be that of shooting at a road sign when nobody is around, then she supposed that she didn't have an objection. She asked that Mr. Linton be allowed to comment on Amendment 2 because of his familiarity with "these cases." 2:44:50 PM LEONARD M. "BOB" LINTON, JR., District Attorney, Third Judicial District (Anchorage), Department of Law (DOL), relayed that he as not yet seen Amendment 2. REPRESENTATIVE GARA explained the content of Amendment 2. MR. LINTON pointed out that the conduct which Amendment 2 proposes to exclude from the automatic waiver is already part of current law as it applies to adults, and if the circumstances are such that it would be unreasonable to charge an adult with a class A felony, it would also be unreasonable to charge a 16- or 17-year-old juvenile with a class A felony for the same conduct. It would behoove the prosecution to look at the statute and see whether the conduct constitutes a substantial and unjustifiable risk of physical injury to a person or damage to property, he remarked, adding that he does not know of any instances where adults have been charged under AS 11.61.190(a)(2) for shooting at road signs in remote areas. The current law has not been misapplied such that the language "substantial and unjustifiable [risk]" has been applied to a road sign in a remote area. In conclusion, he said he does not see any risk that prosecutors, courts, or police would apply the statute in circumstances where the conduct was committed by juveniles. CHAIR McGUIRE asked Mr. Linton to explain why he thinks an unjustifiable risk of damage to property deserves escalated treatment. MR. LINTON mentioned examples where automobiles parked outside houses were being shot at. He added: "Were there people getting into or getting out of those vehicles at the time? Would people normally be getting into, getting out of, or likely to be in vehicles? Are people just sitting inside ... their vehicles to avoid the fight with the wife or the husband?" 2:50:47 PM REPRESENTATIVE GARA said he is not trying to change the proposed waiver as it pertains to AS 11.61.195 or AS 11.61.190(a)(1). He asked Mr. Linton to offer a reason for waiving a juvenile who does not cause any danger to a person into adult court. MR. LINTON indicated that he would do some research to try to find examples where a juvenile is shooting at an empty house or an empty vehicle and it does not constitute an unjustifiable risk of physical injury to a person. He pointed out that the shooter in such cases doesn't care whether the house or the vehicle is empty or whether someone is standing nearby; rather, the shooter just wants to terrorize. REPRESENTATIVE GRUENBERG mentioned that he has been the victim of a drive-by shooting when his vehicle was shot while it was parked outside of his house. The concern at this point, he surmised, is that the statute is broad enough to include the act of shooting at a road sign even if there is no one else within 10 miles of it. CHAIR McGUIRE asked Mr. Linton to look at 11.61.195(a)(3), which speaks to [knowingly] discharging a firearm at or in the direction of "(A) a building with reckless disregard for a risk physical injury to a person; or (B) a dwelling". She asked him to comment regarding possibly adding "an automobile" via a subparagraph (C). Such a change would make shooting a firearm at or in the direction of a vehicle the crime of misconduct involving a weapon in the second degree, a class B felony. She pointed out that the term "property" is very broad and does include road signs. MS. CARPENETI remarked that Mr. Linton might have difficulty finding examples of cases wherein property is damaged without there also being an unjustifiable risk of physically injuring a person, because those types of cases are not prosecuted under this section; the DOL uses its discretion in charging such cases, as do judges and juries. She indicated that she would not have a problem with Amendment 2, but would not want to add "vehicle" to AS 11.61.195(a)(3). CHAIR McGUIRE withdrew her objection to Amendment 2. CHAIR McGUIRE asked whether there were any further objections to Amendment 2. There being none, Amendment 2 was adopted. 2:56:10 PM REPRESENTATIVE ANDERSON moved to report HB 88, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GARA objected for the purpose of discussion. He remarked that he has not seen any evidence that the current law regarding waiving a juvenile into adult court is not working, nor heard evidence that such a waiver would be better for the juvenile. He said he wants evidence that the juveniles referred to in HB 88 would not be better served in the juvenile justice system (JJS). CHAIR McGUIRE pointed out that Mr. Linton's letter describes one case that goes to the point that the current waiver provision is not working, though she added that she does share a portion of Representative Gara's concerns. She remarked that it would be helpful to know that some effort is going towards rehabilitation of those that will be affected by Section 3 of the bill. REPRESENTATIVE GRUENBERG said he supports the bill, but doesn't see the need for retaining Sections 1, 2 and 6, which would establish a short title for the proposed Act, would add findings and intent language into uncodified law, and would provide an effective date of July 1, 2005. REPRESENTATIVE GRUENBERG suggested that the committee strike Sections 1, 2, and 6. CHAIR McGUIRE remarked that any motion to that effect would be out of order because there is already a motion before them to report the bill from committee. She suggested to Representative Gruenberg that he consider offering such an amendment in either the next committee of referral or on the House floor. REPRESENTATIVE GARA withdrew his objection to report the bill from committee. He added that he just didn't understand the need for the bill. 3:05:08 PM CHAIR McGUIRE asked whether there were any further objections to reporting HB 88, as amended, from committee. There being none, CSHB 88(JUD) was reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|