Legislature(2001 - 2002)

05/08/2002 03:14 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
       CSHB 350(FIN)am-TERRORISTIC THREATS & OTHER CRIMES                                                                   
                                                                                                                                
REPRESENTATIVE   LESIL  MAGUIRE,   sponsor   of  CSHB   350(FIN)am                                                              
explained that  this legislation  is an omnibus homeland  security                                                              
bill. Alaska  statutes  address issues that  relate to  terrorism,                                                              
but they  do not take  a comprehensive  approach to provide  tools                                                              
for prosecutors.  CSHB 350(FIN)am  is an  effort to provide  those                                                              
responsible for homeland  security in Alaska the  legal tools they                                                              
need to discourage false threats  and to punish actual attempts to                                                              
practice terrorism in  Alaska.  Under CSHB 350(FIN)am,  it will be                                                              
a class  A felony,  punishable  by up  to 20 years  in prison,  to                                                              
intentionally   damage  oil   or  gas   pipelines  or   associated                                                              
facilities.   She  noted  that   specific  facilities   have  been                                                              
identified  and damage to  them would  cause widespread  panic and                                                              
chaos.  In addition  to oil  and  gas pipelines,  the crime  would                                                              
apply to  damage to  water utilities, water  mains, power,  gas or                                                              
electrical  distribution  systems, or  elements  of the  emergency                                                              
responder  system.  Any  unsuccessful   attempt  to  damage  those                                                              
systems or an attempt to damage airplanes  or helicopters would be                                                              
a  class   B  felony.   Finally,  CSHB   350(FIN)am  would   raise                                                              
terroristic threatening  from a class  C to a class B  felony, and                                                              
define  the  crime  more  clearly.   The  existing  definition  is                                                              
ambiguous; CSHB  350(FIN)am narrows it  so that it will  not apply                                                              
to a prankster.  It also adds the act of making  a false report of                                                              
releasing harmful  chemical, biological, or explosive  agents into                                                              
air, food or  cosmetics. The current statute does  not address air                                                              
and water so they were added.                                                                                                   
                                                                                                                                
SENATOR  ELLIS  asked  for  clarification   of  the  reference  to                                                              
cosmetics.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  MAGUIRE  explained  that cosmetics  and  food  are                                                              
named in the existing statutes but water and air are not.                                                                       
                                                                                                                                
SENATOR THERRIAULT  referred to  page 8, lines  29 and 30  of CSHB
350(FIN)am  and asked  why bacteriological,  biological,  chemical                                                              
and  radiological substances  were  separated out  since they  are                                                              
inclusive of each other.                                                                                                        
                                                                                                                                
REPRESENTATIVE  MAGUIRE said  she and Ms.  Carpeneti labored  over                                                              
that question. Those substances were  differentiated as the result                                                              
of a compromise  with some minority  members on the  House Finance                                                              
Committee.  Those  members felt  the  original language  (a  toxic                                                              
agent that could  cause serious bodily harm) was  too broad so the                                                              
federal  definition was  used  to narrow  it.  Those members  were                                                              
concerned that the  original language could apply to  a person who                                                              
did not intend to do harm.                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR took public testimony.                                                                                          
                                                                                                                                
MS. LINDA  WILSON, Deputy Director  of the Alaska  Public Defender                                                              
Agency,  said  that since  September  11,  the federal  and  state                                                              
governments  have  felt  the  need  to  respond  with  appropriate                                                              
legislation  to   address  terroristic  threats  and   tighten  up                                                              
loopholes  to  strengthen  existing laws.  The  public  defender's                                                              
agency certainly  supports those efforts  but it does  not support                                                              
CSHB 350 (FIN)am for the following reasons.                                                                                     
                                                                                                                                
CSHB  350  (FIN)am  creates  a  "disproportionality"   within  the                                                              
criminal statutory  scheme. Under  Alaska's criminal  code, crimes                                                              
are classified  according  to the  type of injury  caused and  the                                                              
culpability of  the defendant.  Murder in the  first degree  is an                                                              
unclassified felony  offense. Murder in the second  degree is also                                                              
an unclassified felony  that includes the crime  of felony murder.                                                              
Within  that felony  murder aspect,  many crimes  are listed.  If,                                                              
during  the commission  or  the attempt  to  commit  one of  those                                                              
underlying crimes, or  in fleeing from that crime,  a person dies,                                                              
the person  may be charged with  second degree murder  in addition                                                              
to  the  underlying  offense.  CSHB   350  (FIN)am  leapfrogs  two                                                              
underlying offenses  - criminal mischief  in the first  degree and                                                              
terroristic  threatening  in the  first  degree  as offenses  that                                                              
would qualify under  murder in the first degree  for felony murder                                                              
that would otherwise appropriately  belong in murder in the second                                                              
degree. The crimes  delineated in the murder in  the second degree                                                              
felony  murder  include arson  in  the first  degree,  kidnapping,                                                              
sexual assault  in the first  degree, sexual  abuse of a  minor in                                                              
the first  degree, burglary  in the  first degree,  escape  in the                                                              
first  degree,  robbery  in  the   first  degree,  and  misconduct                                                              
involving controlled substances in  the first degree. Yet CSHB 350                                                              
(FIN)am  pulls out  two  crimes that  were  not  even included  in                                                              
murder in the second degree and elevates  them to felony murder in                                                              
the first  degree. She  stated it is  more appropriate  that these                                                              
two crimes be  included with all of the other  serious crimes that                                                              
are in murder in the second degree.                                                                                             
                                                                                                                                
MS. WILSON continued  by informing members that  class A felonies,                                                              
which are  below unclassified  felonies,  are reserved for  crimes                                                              
that involve  conduct that  actually results  in serious  physical                                                              
injury  or a  substantial risk  of serious  physical injury.  Some                                                              
examples of  crimes classified  as class A  felonies are  arson in                                                              
the  first  degree,  assault  in   the  first  degree,  a  weapons                                                              
misconduct offense  in the first  degree, and escape in  the first                                                              
degree. Class  B felonies are for  the more serious  or aggravated                                                              
property offenses  and offenses  against public administration  or                                                              
order and conduct  that results in less severe  violence against a                                                              
person than would  be in a class A felony. Some  examples of class                                                              
B felonies are burglary in the first  degree, perjury, bribery and                                                              
forgery. CSHB 350(FIN)am  elevates criminal mischief  in the first                                                              
degree to  a class A  felony for damage  to property in  excess of                                                              
$100,000.  It also elevates,  from a  C to  a B felony,  tampering                                                              
with  an airplane  in addition  to tampering  with an  oil or  gas                                                              
pipeline  or supporting  facility.  Increasing  these four  crimes                                                              
creates  "disproportionality."   These four  crimes should  remain                                                              
with the  other sets of crimes  more appropriately described  as B                                                              
and  C felonies  as  they better  fit the  overall  classification                                                              
scheme.                                                                                                                         
                                                                                                                                
MS.  WILSON  said she  is  specifically  concerned about  the  new                                                              
offense  created   within  terroristic  threatening   on  page  8.                                                              
Terroristic threatening  right now is  a class B felony.  CSHB 350                                                              
(FIN)am  divides  terroristic  threatening  into two  degrees  and                                                              
makes the more serious of the two,  terroristic threatening in the                                                              
first degree,  a class  B felony. This  particular section  of the                                                              
bill was amended  but the amendment did not make  reference to the                                                              
mental state for  this crime. The original language  required that                                                              
the  person  intentionally  placed  a  person in  fear  or  caused                                                              
serious  public inconvenience  or  evacuation.  The House  Finance                                                              
Committee amended  that section  so that a  crime is  committed if                                                              
the  result  is  that  a person  was  placed  in  fear,  etcetera.                                                              
However,  that amendment  did not  address the  mental element  of                                                              
intent.  She suggested  including that mental  element within  the                                                              
bill.                                                                                                                           
                                                                                                                                
CHAIRMAN  TAYLOR moved to  amend page  8, line  28, to insert  the                                                              
word "intentionally"  after the word "person."  He  then asked Ms.                                                              
Carpeneti to comment.                                                                                                           
                                                                                                                                
MS.  ANNE CARPENETI,  representing  the Criminal  Division of  the                                                              
Department   of   Law,   told  members   the   reason   the   word                                                              
"intentionally"  was   removed  by  House  members   was  that  it                                                              
originally  had been  a specific  intent crime  to knowingly  send                                                              
anthrax-type materials  with the intent to cause  various results.                                                              
The version under  consideration by the House did  not require the                                                              
prosecution  to prove that  the perpetrator  had, in fact,  caused                                                              
those results.  The House  considered that it  wanted to  have the                                                              
result as the element the state needed  to prove and made a change                                                              
on page 9, by adding the results  that were caused. Title 11 reads                                                              
into  those  circumstances  a  reckless   culpable  mental  state,                                                              
meaning the person knew the risk  and disregarded it. Therefore, a                                                              
culpable mental state is included already.                                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR  asked  Ms.  Carpeneti  if she  would  object  to                                                              
including the word "knowingly."                                                                                                 
                                                                                                                                
MS. CARPENETI said she did not.                                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR  withdrew his  amendment and  moved to  insert, on                                                              
page 8, line 28, the word "knowingly"  after the word "person." He                                                              
stated that he felt Ms. Wilson's comments were well founded.                                                                    
                                                                                                                                
There  being   no  objection,  CHAIRMAN  TAYLOR's   amendment  was                                                              
adopted.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT  noted  that  Ms. Carpeneti  had  mentioned  a                                                              
provision in  the Senate  version that  was more artfully  crafted                                                              
and asked her to direct him to it.                                                                                              
                                                                                                                                
MS. CARPENETI  referred to page 9,  line 26, and said  the problem                                                              
with changing it back to the Senate  language at this time is that                                                              
the entire section  would have to be rewritten because  of the way                                                              
the lead-in reads.                                                                                                              
                                                                                                                                
SENATOR COWDERY  moved SCS  CSHB 350(FIN)  am from committee  with                                                              
its zero fiscal note.                                                                                                           
                                                                                                                                
CHAIRMAN  TAYLOR  announced  that   without  objection,  SCS  CSHB
350(FIN) am moved from committee.                                                                                               

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