Legislature(2005 - 2006)CAPITOL 120
04/19/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HCR4 | |
| HB502 | |
| SB20 | |
| SB261 | |
| HB240 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HCR 4 | TELECONFERENCED | |
| + | SB 273 | TELECONFERENCED | |
| *+ | HB 502 | TELECONFERENCED | |
| + | HB 240 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 20 | TELECONFERENCED | |
SB 20 - OFFENSES AGAINST UNBORN CHILDREN 2:37:53 PM CHAIR McGUIRE announced that the next order of business would be CS FOR SENATE BILL NO. 20(JUD), "An Act relating to offenses against unborn children." REPRESENTATIVE COGHILL made a motion to take from the table the proposed House committee substitute (HCS) for SB 20, Version 24- LS0197\B, Mischel, 3/24/06, which was tabled at the 3/24/06 hearing. REPRESENTATIVE GARA objected. 2:38:45 PM A roll call vote was taken. Representatives McGuire, Coghill, Wilson, Kott, and Anderson voted in favor of taking from the table the proposed HCS for SB 20, Version 24-LS0197\B, Mischel, 3/24/06. Representatives Gruenberg and Gara voted against it. Therefore, Version B was before the committee by a vote of 5-2. The committee took an at-ease from 2:39 p.m. to 2:56 p.m. REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 1, labeled 24-LS0197\U.9, Mischel/Luckhaupt, 3/24/06. [The text of Conceptual Amendment 1 can be found at the end of the minutes on SB 20.] REPRESENTATIVE COGHILL objected. The committee took a brief at-ease. 2:59:44 PM CHAIR McGUIRE clarified that Amendment 1, which was drafted for Version U, had been offered as conceptual in order that the drafters can conform it to Version B. She explained that the basic tenet of Version B is that it doesn't include any reference to the pregnant female being charged with murder. She noted that Representative Gara had provided committee members with a document entitled, "Excerpts from the Supreme Court's Decision in Roe v. Wade". REPRESENTATIVE ANDERSON relayed that research has indicated that several states have codified what Senator Dyson wants to do via SB 20, and that several states have codified what Representative Gara is proposing via Conceptual Amendment 1, which is to provide, without reference to "an unborn child", enhanced penalties for those who hurt a pregnant woman. Representative Anderson indicated concern with regard to a situation in which someone harmed or killed a pregnant woman, who was then found to be only 10 weeks pregnant. REPRESENTATIVE ANDERSON surmised that under Version B, the person could be charged with two separate crimes; however, under Conceptual Amendment 1, the person would only be charged with one crime, though one that had a stiffer penalty. He said he wants to provide for enhanced penalties, but is unclear whether [this legislation] is deciding when human life begins and thus perhaps overriding Roe V. Wade. He said he didn't like that this legislation provides for charging an individual for the harm or death of a pregnant woman and her unborn child from the time the sperm meets the egg. REPRESENTATIVE GARA said he struggles with the same issue. However, there is no clean way in statute to specify the impact of these situations on an individual's life. Normally, sentences deter an action; therefore, the punishment is important rather than the mere statutory language. Conceptual Amendment 1 will impose at least the same minimum sentence as if there were two crimes for all of the major crimes in SB 20. For example, Version B refers to the crime of first degree murder of an unborn child that assigns a minimum of 20 years for the act against the woman and a minimum of 20 years for the act against the unborn child, whereas Conceptual Amendment 1 would provide for a minimum sentence of 40 years for that same behavior. REPRESENTATIVE GARA pointed out that one of the flaws of Version B is that it refers to murder of the baby for incidents that happen [beginning] from one day after the pregnancy begins. Therefore, one may say it's necessary to make it murder once the baby is viable. However, that requires some sort of medical evidence that the baby is viable, which is the route that Indiana took. The problem with the aforementioned is that the child that would've been present after nine months is taken away, and thus to recognize the incident differently depending upon when in the pregnancy the incident occurred disregards the fact that the woman and the father lost the child regardless of its viability. Conceptual Amendment 1, in comparison, recognizes a sentence that reflects the seriousness of the crime. REPRESENTATIVE COGHILL interjected to note that Section 5 defines an unborn child as, "a member of the species Homo sapiens, at any state of development, who is carried in the womb." REPRESENTATIVE GARA interpreted that language to mean that it is a baby at day one and so from that point on [killing the baby] would be considered murder. REPRESENTATIVE COGHILL offered his understanding that the term "unborn child" refers to a fetus at any stage of development. REPRESENTATIVE GARA acknowledged that point and characterized that as a problem. He opined that he didn't believe the committee should determine when viability occurs and then make the crime different than if it had occurred the day before, because that's an artificial delineation. 3:10:35 PM REPRESENTATIVE ANDERSON mentioned that he is in favor of rejecting Conceptual Amendment 1. He opined that if one harms a woman, he/she risks harming or killing an unborn child if the woman is pregnant, and thus he/she ought to be doubly punished because of the harm or death of the woman and potentially to the unborn child. REPRESENTATIVE COGHILL surmised that the concept being set forth in Conceptual Amendment 1 is that the crime is against one individual. However, Version B stipulates that the crime is against two individuals. He announced that he would oppose Conceptual Amendment 1 because an individual who attacks a pregnant woman and injures and/or kills her unborn child has harmed two victims. REPRESENTATIVE GARA recalled that Representative Anderson wanted to provide for additional punishment even if the perpetrator didn't know that the woman was pregnant. The aforementioned is accomplished via Conceptual Amendment 1 because even if the perpetrator didn't know the woman was pregnant, her pregnancy would be considered an aggravating factor. REPRESENTATIVE GARA offered his belief that Roe v. Wade is partly predicated on language that says society hasn't yet recognized that the fetus is a person from day one of the pregnancy. However, if states pass laws such that the pregnancy shall be treated as involving a second person, then the Roe v. Wade ruling could be in jeopardy because there are law scholars who predict that legislation such as SB 20 will be utilized to undermine the rights in Roe v. Wade. REPRESENTATIVE GARA offered further examples of the lengths of sentences that are being proposed via Conceptual Amendment 1, and surmised that one of the questions being raised revolves around the issue of defining when life begins, and another is whether to impose a harsh penalty in recognition of the seriousness of the crime. He then referred to the current law regarding actions that cause a miscarriage. REPRESENTATIVE COGHILL suggested that they proceed to vote on Conceptual Amendment 1. REPRESENTATIVE ANDERSON reiterated his argument against Conceptual Amendment 1. 3:19:10 PM REPRESENTATIVE GARA surmised that without the adoption of Conceptual Amendment 1, someone who causes a miscarriage three days after conception could be charged with the crime of murder. CHAIR McGUIRE pointed out that a woman can't determine she is pregnant within three days of conception, and that the norm for determining pregnancy is five weeks. REPRESENTATIVE GARA opined that it's a stretch to call a miscarriage caused negligently or recklessly at the earliest stage of development of a pregnancy a homicide, which is what SB 20 does, and therefore the crime should be recognized in terms of the sentence. He reminded the committee that in any murder, no matter how many victims are left, it's not referred to as murder that has resulted in the damage of two children or three children or four children, it's referred to as murder and there is simply recognition that damage has been done to the rest of the family. Every single victim doesn't have to be named as a victim of a separate crime in order to protect society or honor the victims, because that's accomplished through the sentence, he opined. 3:21:59 PM A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Conceptual Amendment 1. Representatives Anderson, Coghill, Kott, McGuire, and Wilson voted against it. Therefore, Conceptual Amendment 1 failed by a vote of 2-5. 3:22:22 PM REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 2, labeled 24-LS0197\U.10, Mischel, 4/10/06, and 24- LS0197\U.11, Mischel, 4/10/06, [text provided at the end of the minutes on SB 20.] REPRESENTATIVE COGHILL objected. REPRESENTATIVE GARA explained that Conceptual Amendment 2 utilizes the approach used in Indiana such that an unborn child is defined as a child at the point of viability. However, at the cellular level prior to viability, it's not an unborn child but rather a pregnancy albeit just as valuable as an unborn child. Conceptual Amendment 2 specifies that if a crime is committed against [a fetus] that is at the point of viability or afterwards, the [punishment] path laid out by the sponsor would be followed. If the crime is committed prior to viability, the penalties are enhanced substantially in terms of an aggravator. The aforementioned proposal recognizes the value of human life and pregnancy while avoiding the debate regarding viability, he opined. REPRESENTATIVE COGHILL remarked that there is a legal and national debate occurring regarding when an [unborn] child is viable. If the [unborn] child is wanted and being nurtured by the mother, he considered it to be viable whether it could fit the description specified [in Conceptual Amendment 2] or not. He indicated he opposed moving down a path that would lead to trying to develop a definition of viability. REPRESENTATIVE GARA clarified that he never said that a pregnancy is worth less at a certain stage. 3:27:28 PM REPRESENTATIVE ANDERSON remarked on the difficulty of establishing a demarcation [with regard to when an unborn child is viable]. REPRESENTATIVE WILSON announced that she is speaking in opposition to Conceptual Amendment 2. Drawing on her experience as a nurse who worked in surgery for many years, she offered examples wherein expectant parents were devastated by miscarriages regardless of the stage of the pregnancy. REPRESENTATIVE GARA stated that Conceptual Amendment 2 recognizes the sanctity of a pregnancy and the family that someone prevents from developing due to a crime [against the pregnant woman and unborn child] via its sentencing provisions. He specified that he wanted to remove the language that people could use to fight Roe v. Wade. Conceptual Amendment 2 allows the use of the language of murder when it involves a child after viability, and provides an enhanced sentence via an aggravator for terminating the pregnancy prior to viability. "In terms of the penalty and society's condemnation of your conduct, it's the same; it's just whether or not we're going to pick this fight over Roe v. Wade, which I don't think we need to do," he opined. REPRESENTATIVE GARA, during a roll call vote, withdrew Conceptual Amendment 2. [An amendment labeled Amendment 3 was also withdrawn because its language had already been incorporated into Version B.] The committee took an at-ease from 3:33 p.m. to 3:34 p.m. 3:34:31 PM REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 4, labeled 24-LS0197\U.3, Mischel, 2/22/06, which read: Page 1, following line 2: Insert a new bill section to read: "* Section 1. The uncodified law of the State of Alaska is amended by adding a new section to read: LEGISLATIVE INTENT. It is the intent of the legislature that nothing in this Act is intended to limit or alter a woman's right to choose the outcome of her pregnancy, as guaranteed by the Constitution of the United States and the Constitution of the State of Alaska." Renumber the following bill sections accordingly. REPRESENTATIVE GRUENBERG offered his belief that Conceptual Amendment 4 is in accord with Senator Dyson's intent. REPRESENTATIVE COGHILL objected. CHAIR McGUIRE offered her understanding that from the beginning the sponsor has stated that SB 20 wouldn't be used to enter into a Roe v. Wade battle. The choice, she opined, is really about protecting pregnant women and their unborn children in the State of Alaska. Chair McGuire questioned how binding the intent language proposed in Conceptual Amendment 4 is. REPRESENTATIVE GRUENBERG stated that the intent language is there and can be used by the court if and when it wishes. REPRESENTATIVE COGHILL recalled that the sponsor had stated his intention to recognize that there are two victims when there has been a crime against a pregnant woman, and surmised, therefore, that the sponsor wouldn't have a problem with Conceptual Amendment 4. REPRESENTATIVE COGHILL then withdrew his objection. REPRESENTATIVE GARA objected and moved that the committee adopt an amendment to Conceptual Amendment 4 such that the intent language would be placed in statute. REPRESENTATIVE GRUENBERG opined that doing so would be very unusual, and that he would rather address the proposed intent language as it's presented. REPRESENTATIVE GARA opined that if everyone is representing that no one is trying to overrule Roe v. Wade, then [the intent language] should be included in statute. REPRESENTATIVE GRUENBERG mentioned that [the intent language] will be referred to in the notes [of the statute]. 3:38:40 PM A roll call vote was taken. Representatives Kott and Gara voted in favor of the amendment to Conceptual Amendment 4. Representatives Coghill, Gruenberg, Wilson, Anderson, and McGuire voted against it. Therefore, the amendment to Conceptual Amendment 4 failed to be adopted by a vote of 2-5. CHAIR McGUIRE, upon determining that there were no further objections, announced that Conceptual Amendment 4 was adopted. 3:39:18 PM REPRESENTATIVE GRUENBERG, upon determining that an amendment labeled 24-LS0197\U.4, Mischel, 2/22/06, would stray from the purpose of having two victims, announced that he would not be offering that amendment. REPRESENTATIVE GARA made a motion to adopt Amendment 6, which read [original punctuation provided]: Page 2, lines 21-24 Delete all material. REPRESENTATIVE ANDERSON objected. REPRESENTATIVE GARA pointed out that language on page 2, lines 21-24, creates a new crime called criminally negligent homicide of an unborn child if, with criminal negligence, the person causes a miscarriage. Doing the aforementioned for intentional and reckless crimes is one thing, but he said he didn't want to also include it for car accidents. REPRESENTATIVE ANDERSON removed his objection. REPRESENTATIVE COGHILL objected and pointed out that whether the child is in the womb or in the seat next to the woman and dies because of negligence, the responsibility and pain remain. Representative Coghill said he was speaking in opposition to Amendment 6. REPRESENTATIVE GARA opined that if Amendment 6 passes, there should be an aggravator for those situations in which a miscarriage is caused. He reiterated that he is respectful of the value of a pregnancy regardless of its stage. He questioned whether the desire is to charge someone who was driving 10 miles per hour over the speed limit but gets in an accident with a homicide and subject him/her to a lengthy jail sentence. Again, he expressed a preference for punishing such behavior with an aggravator. REPRESENTATIVE GRUENBERG disagreed, and referred to a law wherein if a person strikes someone in the head and he/she has a really thin skull and is therefore killed by the blow, the assailant is responsible for the result even if excessive force wasn't used. Another example would be if a person is negligently driving and hits a truck which happens to have a drunken individual sleeping in the back and he/she dies, the negligent driver remains responsible. The situation to which Representative Gara referred is very similar, Representative Gruenberg suggested. REPRESENTATIVE GARA clarified that that law pertains to situations in which a person causes an injury to someone who is very vulnerable, and even though the [assailant] doesn't know that the victim is vulnerable, [the assailant] is still liable for damages. However, in such a situation, he surmised, the [assailant] wouldn't be called a murderer; rather, the "eggshell theory" has to do with civil liability for damages. REPRESENTATIVE GRUENBERG asked whether it also deals with criminal law. 3:45:25 PM CHAIR McGUIRE offered her understanding that the eggshell theory is a civil theory, but the premise behind it is similar. She reminded the committee that AS 04.21.080(a)(1) says: a person acts with "criminal negligence" with respect to a result or a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation; REPRESENTATIVE GRUENBERG suggested that two slightly different things are being discussed. One matter is the mental state with which the act was done, while the other is the responsibility for a second individual in the automobile that [the assailant] didn't know was present. REPRESENTATIVE GARA argued that the only question is whether it should be called homicide in the aforementioned case of a car accident. 3:47:16 PM A roll call vote was taken. Representatives Gara and Kott voted in favor of Amendment 6. Representatives Gruenberg, Wilson, McGuire, Anderson, and Coghill voted against it. Therefore, Amendment 6 failed to be adopted by a vote of 2-5. 3:47:38 PM REPRESENTATIVE GARA made a motion to adopt Amendment 7, which read [original punctuation provided]: Page 2, line 7 following "life": Insert: "; for purposes of this paragraph, a pregnant woman's decision to remain in a relationship in which domestic violence as defined in AS 18.66.990 has occurred does not constitute conduct manifesting an extreme indifference to the value of human life." Page 3, line 12 following "life": Insert: "; for purposes of this paragraph, a pregnant woman's decision to remain in a relationship in which domestic violence as defined in AS 18.66.990 has occurred does not constitute conduct manifesting an extreme indifference to the value of human life." CHAIR McGUIRE objected for discussion purposes. REPRESENTATIVE GARA reminded the committee that an earlier version of SB 20 stipulated that a pregnant woman's decision to remain in a relationship that involved domestic violence wasn't something that the woman could be charged for if it resulted in a miscarriage caused by the abuser. CHAIR McGUIRE withdrew her objection, and asked whether there were any further objections to Amendment 7. There being none, Amendment 7 was adopted. 3:48:33 PM REPRESENTATIVE COGHILL moved to report the proposed HCS for SB 20, Version 24-LS0197\B, Mischel, 3/24/06, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GRUENBERG objected. A roll call vote was taken. Representatives McGuire, Wilson, Anderson, Coghill, and Kott voted in favor of reporting the proposed HCS for SB 20, Version 24-LS0197\B, Mischel, 3/24/06, as amended, out of committee. Representatives Gruenberg and Gara voted against it. Therefore, HCS CSSB 20(JUD) was reported from the House Judiciary Standing Committee by a vote of 5-2. Conceptual Amendment 1 [24-LS0197\U.9, Mischel/Luckhaupt, 3/24/06] (failed to be adopted): Page 1, line 1: Delete all material and insert: "An Act relating to sentencing factors and penalties for crimes against pregnant women." Page 1, line 3, through page 7, line 18: Delete all material and insert: "* Section 1. AS 11 is amended by adding a new chapter to read: Chapter 32. Enhanced Penalties. Sec. 11.32.100. Penalties for crimes committed against pregnant women. (a) Notwithstanding another provision of this title or AS 12, if a person commits a crime defined in this title against a pregnant woman who the person knew or should have known to be pregnant that results in a miscarriage or stillbirth, the crime shall be punished in the following manner: (1) a crime defined as murder in the first degree under AS 11.41.100 shall be punished by a sentence of 40 - 99 years; (2) a crime defined as murder in the second degree under AS 11.41.110 shall be punished by a sentence of 30 - 99 years; (3) a crime defined in this title as a class A felony shall be punished as an unclassified felony in the manner provided for unclassified felonies in AS 12.55.125; (4) a crime defined in this title as a class B felony shall be punished as a class A felony in the manner provided for class A felonies in AS 12.55.125; (5) a crime defined in this title as a class C felony shall be punished as a class B felony in the manner provided for class B felonies in AS 12.55.125; (6) a crime defined in this title as a class A misdemeanor shall be punished as a class C felony in the manner provided for class C felonies in AS 12.55.125; (7) a crime defined in this title as a class B misdemeanor shall be punished as a class A misdemeanor in the manner provided for class A misdemeanors in AS 12.55.135. (b) The penalties in (a) of this section do not apply to acts committed (1) during a legal abortion to which the pregnant woman, or a person authorized by law to act on the pregnant woman's behalf, consented or for which the consent is implied by law; (2) during any medical treatment of the pregnant woman or the fetus; or (3) by a pregnant woman against herself. (c) In this section, (1) "miscarriage" means the interruption of the normal development of the fetus, other than by a live birth or by an induced abortion, resulting in the complete expulsion or extraction of the fetus from a pregnant woman; (2) "stillbirth" means the death of a fetus before the complete expulsion or extraction from a woman, other than by an induced abortion, irrespective of the duration of the pregnancy. * Sec. 2. AS 12.55.125(a) is amended to read: (a) A defendant convicted of murder in the first degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years. A defendant convicted of murder in the first degree enhanced under AS 11.32.100(a)(1) shall be sentenced to a definite term of imprisonment of at least 40 years but not more than 99 years. A defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when (1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace officer, fire fighter, or correctional employee who was engaged in the performance of official duties at the time of the murder; (2) the defendant has been previously convicted of (A) murder in the first degree under AS 11.41.100 or former AS 11.15.010 or 11.15.020; (B) murder in the second degree under AS 11.41.110 or former AS 11.15.030; or (C) homicide under the laws of another jurisdiction when the offense of which the defendant was convicted contains elements similar to first degree murder under AS 11.41.100 or second degree murder under AS 11.41.110; (3) the court finds by clear and convincing evidence that the defendant subjected the murder victim to substantial physical torture; or (4) the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery. * Sec. 3. AS 12.55.125(b) is amended to read: (b) A defendant convicted of attempted murder in the first degree, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, kidnapping, or misconduct involving a controlled substance in the first degree shall be sentenced to a definite term of imprisonment of at least five years but not more than 99 years. A defendant convicted of murder in the second degree or a class A felony enhanced under AS 11.32.100(a)(3) shall be sentenced to a definite term of imprisonment of at least 10 years but not more than 99 years. A defendant convicted of murder in the second degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years when the sentence is enhanced under AS 11.32.100(a)(2) or when the defendant is convicted of the murder of a child under 16 years of age and the court finds by clear and convincing evidence that the defendant (1) was a natural parent, a stepparent, an adopted parent, a legal guardian, or a person occupying a position of authority in relation to the child; or (2) caused the death of the child by committing a crime against a person under AS 11.41.200 - 11.41.530. In this subsection, "legal guardian" and "position of authority" have the meanings given in AS 11.41.470. * Sec. 4. AS 12.55.155(c) is amended to read: (c) The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range set out in AS 12.55.125: (1) a person, other than an accomplice, sustained physical injury as a direct result of the defendant's conduct; (2) the defendant's conduct during the commission of the offense manifested deliberate cruelty to another person; (3) the defendant was the leader of a group of three or more persons who participated in the offense; (4) the defendant employed a dangerous instrument in furtherance of the offense; (5) the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance; (6) the defendant's conduct created a risk of imminent physical injury to three or more persons, other than accomplices; (7) a prior felony conviction considered for the purpose of invoking a presumptive range under this chapter was of a more serious class of offense than the present offense; (8) the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assault behavior; (9) the defendant knew that the offense involved more than one victim; (10) the conduct constituting the offense was among the most serious conduct included in the definition of the offense; (11) the defendant committed the offense under an agreement that the defendant either pay or be paid for the commission of the offense, and the pecuniary incentive was beyond that inherent in the offense itself; (12) the defendant was on release under AS 12.30.020 or 12.30.040 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element; (13) the defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an active or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, fire fighter, emergency medical technician, paramedic, ambulance attendant, or other emergency responder during or because of the exercise of official duties; (14) the defendant was a member of an organized group of five or more persons, and the offense was committed to further the criminal objectives of the group; (15) the defendant has three or more prior felony convictions; (16) the defendant's criminal conduct was designed to obtain substantial pecuniary gain and the risk of prosecution and punishment for the conduct is slight; (17) the offense was one of a continuing series of criminal offenses committed in furtherance of illegal business activities from which the defendant derives a major portion of the defendant's income; (18) the offense was a felony (A) specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant; (B) specified in AS 11.41.410 - 11.41.458 and the defendant has engaged in the same or other conduct prohibited by a provision of AS 11.41.410 - 11.41.460 involving the same or another victim; or (C) specified in AS 11.41 that is a crime involving domestic violence and was committed in the physical presence or hearing of a child under 16 years of age who was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the crime involving domestic violence occurred; (19) the defendant's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult; (20) the defendant was on furlough under AS 33.30 or on parole or probation for another felony charge or conviction that would be considered a prior felony conviction under AS 12.55.145(a)(1)(B); (21) the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section; (22) the defendant knowingly directed the conduct constituting the offense at a victim because of that person's race, sex, color, creed, physical or mental disability, ancestry, or national origin; (23) the defendant is convicted of an offense specified in AS 11.71 and (A) the offense involved the delivery of a controlled substance under circumstances manifesting an intent to distribute the substance as part of a commercial enterprise; or (B) at the time of the conduct resulting in the conviction, the defendant was caring for or assisting in the care of a child under 10 years of age; (24) the defendant is convicted of an offense specified in AS 11.71 and the offense involved the transportation of controlled substances into the state; (25) the defendant is convicted of an offense specified in AS 11.71 and the offense involved large quantities of a controlled substance; (26) the defendant is convicted of an offense specified in AS 11.71 and the offense involved the distribution of a controlled substance that had been adulterated with a toxic substance; (27) the defendant, being 18 years of age or older, (A) is legally accountable under AS 11.16.110(2) for the conduct of a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant; or (B) is aided or abetted in planning or committing the offense by a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant; (28) the victim of the offense is a person who provided testimony or evidence related to a prior offense committed by the defendant; (29) the defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang; (30) the defendant is convicted of an offense specified in AS 11.41.410 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to the victim in furtherance of the offense with the intent to make the victim incapacitated; in this paragraph, "incapacitated" has the meaning given in AS 11.41.470; (31) the defendant's prior criminal history includes convictions for five or more crimes in this or another jurisdiction that are class A misdemeanors under the law of this state, or having elements similar to a class A misdemeanor; two or more convictions arising out of a single continuous episode are considered a single conviction; however, an offense is not a part of a continuous episode if committed while attempting to escape or resist arrest or if it is an assault upon a uniformed or otherwise clearly identified peace officer; notice and denial of convictions are governed by AS 12.55.145(b), (c), and (d); (32) the offense is a violation of AS 11.41 or AS 11.46.400 and the offense occurred on school grounds, on a school bus, at a school-sponsored event, or in the administrative offices of a school district if students are educated at that office; 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; (33) the defendant is convicted of an offense specified in AS 11.41 and the offense involved physical injury to a pregnant woman. * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. AS 11.32.100, enacted by sec. 1 of this Act, and AS 12.55.125(a) - (c), as amended by secs. 2 - 4 of this Act, apply to crimes committed on or after the effective date of this Act." Conceptual Amendment 2 [labeled 24-LS0197\U.10, Mischel, 4/10/06, and 24-LS0197\U.11, Mischel, 4/10/06] (withdrawn) Page 5, lines 27 - 28: Delete all material and insert: "(64) "unborn child" means a fetus that has attained viability; in this paragraph, "viability" means the ability to live outside of the mother's womb." Page 1, line 1, following "children": Insert "; and adding aggravating factors in sentencing" Page 7, following line 18: Insert new bill sections to read: "* Sec. 9. AS 12.55.155(c) is amended to read: (c) The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range set out in AS 12.55.125: (1) a person, other than an accomplice, sustained physical injury as a direct result of the defendant's conduct; (2) the defendant's conduct during the commission of the offense manifested deliberate cruelty to another person; (3) the defendant was the leader of a group of three or more persons who participated in the offense; (4) the defendant employed a dangerous instrument in furtherance of the offense; (5) the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance; (6) the defendant's conduct created a risk of imminent physical injury to three or more persons, other than accomplices; (7) a prior felony conviction considered for the purpose of invoking a presumptive range under this chapter was of a more serious class of offense than the present offense; (8) the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior; (9) the defendant knew that the offense involved more than one victim; (10) the conduct constituting the offense was among the most serious conduct included in the definition of the offense; (11) the defendant committed the offense under an agreement that the defendant either pay or be paid for the commission of the offense, and the pecuniary incentive was beyond that inherent in the offense itself; (12) the defendant was on release under AS 12.30.020 or 12.30.040 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element; (13) the defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an active or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, fire fighter, emergency medical technician, paramedic, ambulance attendant, or other emergency responder during or because of the exercise of official duties; (14) the defendant was a member of an organized group of five or more persons, and the offense was committed to further the criminal objectives of the group; (15) the defendant has three or more prior felony convictions; (16) the defendant's criminal conduct was designed to obtain substantial pecuniary gain and the risk of prosecution and punishment for the conduct is slight; (17) the offense was one of a continuing series of criminal offenses committed in furtherance of illegal business activities from which the defendant derives a major portion of the defendant's income; (18) the offense was a felony (A) specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant; (B) specified in AS 11.41.410 - 11.41.458 and the defendant has engaged in the same or other conduct prohibited by a provision of AS 11.41.410 - 11.41.460 involving the same or another victim; or (C) specified in AS 11.41 that is a crime involving domestic violence and was committed in the physical presence or hearing of a child under 16 years of age who was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the crime involving domestic violence occurred; (19) the defendant's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult; (20) the defendant was on furlough under AS 33.30 or on parole or probation for another felony charge or conviction that would be considered a prior felony conviction under AS 12.55.145(a)(1)(B); (21) the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section; (22) the defendant knowingly directed the conduct constituting the offense at a victim because of that person's race, sex, color, creed, physical or mental disability, ancestry, or national origin; (23) the defendant is convicted of an offense specified in AS 11.71 and (A) the offense involved the delivery of a controlled substance under circumstances manifesting an intent to distribute the substance as part of a commercial enterprise; or (B) at the time of the conduct resulting in the conviction, the defendant was caring for or assisting in the care of a child under 10 years of age; (24) the defendant is convicted of an offense specified in AS 11.71 and the offense involved the transportation of controlled substances into the state; (25) the defendant is convicted of an offense specified in AS 11.71 and the offense involved large quantities of a controlled substance; (26) the defendant is convicted of an offense specified in AS 11.71 and the offense involved the distribution of a controlled substance that had been adulterated with a toxic substance; (27) the defendant, being 18 years of age or older, (A) is legally accountable under AS 11.16.110(2) for the conduct of a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant; or (B) is aided or abetted in planning or committing the offense by a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant; (28) the victim of the offense is a person who provided testimony or evidence related to a prior offense committed by the defendant; (29) the defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang; (30) the defendant is convicted of an offense specified in AS 11.41.410 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to the victim in furtherance of the offense with the intent to make the victim incapacitated; in this paragraph, "incapacitated" has the meaning given in AS 11.41.470; (31) the defendant's prior criminal history includes convictions for five or more crimes in this or another jurisdiction that are class A misdemeanors under the law of this state, or having elements similar to a class A misdemeanor; two or more convictions arising out of a single continuous episode are considered a single conviction; however, an offense is not a part of a continuous episode if committed while attempting to escape or resist arrest or if it is an assault upon a uniformed or otherwise clearly identified peace officer; notice and denial of convictions are governed by AS 12.55.145(b), (c), and (d); (32) the offense is a violation of AS 11.41 or AS 11.46.400 and the offense occurred on school grounds, on a school bus, at a school-sponsored event, or in the administrative offices of a school district if students are educated at that office; 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; (33) the defendant recklessly, knowingly, or intentionally caused serious physical injury to a pregnant woman, whether or not the defendant knew of the pregnancy; (34) the defendant caused physical injury to a woman the defendant knew to be pregnant. * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. AS 12.55.155(c), as amended by sec. 9 of this Act, applies to offenses committed on or after the effective date of this Act." [HCS CSSB 20(JUD) was reported from the House Judiciary Standing Committee.]
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