Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/15/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB165 | |
| SB186 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 165 | TELECONFERENCED | |
| += | SB 186 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 186-SENTENCING/PROBATION/MENTALLY ILL
2:06:55 PM
CHAIR FRENCH announced the consideration of SB 186. He noted
that an amendment from Senator Coghill was discussed during the
last hearing but no formal action was taken.
At ease from 2:07:31 p.m. to 2:07:54 p.m.
CHAIR FRENCH asked Senator Coghill to move the amendment and
said he would object for discussion purposes.
2:08:07 PM
SENATOR COGHILL moved Amendment 1, labeled 27-LS0811\I.1.
CHAIR FRENCH objected.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR COGHILL
TO: SB 186
Page 1, line 1, following "Act":
Insert "relating to property crimes;"
Page 1, following line 6:
Insert new bill sections to read:
"* Section 1. AS 11.46.130(a) is amended to read:
(a) A person commits the crime of theft in the
second degree if the person commits theft as defined
in AS 11.46.100 and
(1) the value of the property or services
is $1,500 [$500] or more but less than $25,000;
(2) the property is a firearm or explosive;
(3) the property is taken from the person
of another;
(4) the property is taken from a vessel and
is vessel safety or survival equipment;
(5) the property is taken from an aircraft
and the property is aircraft safety or survival
equipment;
(6) the value of the property is $250 [$50]
or more but less than $1,500 [$500] and, within the
preceding five years, the person has been convicted
and sentenced on two or more separate occasions in
this or another jurisdiction of
(A) an offense under AS 11.46.120, or an
offense under another law or ordinance with similar
elements;
(B) a crime set out in this subsection or
an offense under another law or ordinance with similar
elements;
(C) an offense under AS 11.46.140(a)(1), or
an offense under another law or ordinance with similar
elements; or
(D) an offense under AS 11.46.220(c)(1) or
(c)(2)(A), or an offense under another law or
ordinance with similar elements; or
(7) the property is an access device.
* Sec. 2. AS 11.46.140(a) is amended to read:
(a) A person commits the crime of theft in the
third degree if the person commits theft as defined in
AS 11.46.100 and
(1) the value of the property or services
is $250 [$50] or more but less than $1,500 [$500]; or
(2) [REPEALED
(3)] the value of the property is less than
$250 [$50] and, within the past five years, the person
has been convicted and sentenced on two or more
separate occasions in this or another jurisdiction of
theft or concealment of merchandise, or an offense
under another law or ordinance with similar elements.
* Sec. 3. AS 11.46.150(a) is amended to read:
(a) A person commits the crime of theft in the
fourth degree if the person commits theft as defined
in AS 11.46.100 and the value of the property or
services is less than $250 [$50].
* Sec. 4. AS 11.46.220(c) is amended to read:
(c) Concealment of merchandise is
(1) a class C felony if
(A) the merchandise is a firearm;
(B) the value of the merchandise is $1,500
[$500] or more; or
(C) the value of the merchandise is $250
[$50] or more but less than $1,500 [$500] and, within
the preceding five years, the person has been
convicted and sentenced on two or more separate
occasions in this or another jurisdiction of
(i) the offense of concealment of
merchandise under this paragraph or (2)(A) of this
subsection, or an offense under another law or
ordinance with similar elements; or
(ii) an offense under AS 11.46.120,
11.46.130, or 11.46.140(a)(1), or an offense under
another law or ordinance with similar elements;
(2) a class A misdemeanor if
(A) the value of the merchandise is $250
[$50] or more but less than $1,500 [$500]; or
(B) the value of the merchandise is less
than $250 [$50] and, within the preceding five years,
the person has been convicted and sentenced on two or
more separate occasions of the offense of concealment
of merchandise or theft in any degree, or an offense
under another law or ordinance with similar elements;
(3) a class B misdemeanor if the value of
the merchandise is less than $250 [$50].
* Sec. 5. AS 11.46.260(b) is amended to read:
(b) Removal of identification marks is
(1) a class C felony if the value of the
property on which the serial number or identification
mark appeared is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property on which the serial number or
identification mark appeared is $250 [$50] or more but
less than $1,500 [$500];
(3) a class B misdemeanor if the value of
the property on which the serial number or
identification mark appeared is less than $250 [$50].
* Sec. 6. AS 11.46.270(b) is amended to read:
(b) Unlawful possession is
(1) a class C felony if the value of the
property on which the serial number or identification
mark appeared is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property on which the serial number or
identification mark appeared is $250 [$50] or more but
less than $1,500 [$500];
(3) a class B misdemeanor if the value of
the property on which the serial number or
identification mark appeared is less than $250 [$50].
* Sec. 7. AS 11.46.280(d) is amended to read:
(d) Issuing a bad check is
(1) a class B felony if the face amount of
the check is $25,000 or more;
(2) a class C felony if the face amount of
the check is $1,500 [$500] or more but less than
$25,000;
(3) a class A misdemeanor if the face
amount of the check is $250 [$50] or more but less
than $1,500 [$500];
(4) a class B misdemeanor if the face
amount of the check is less than $250 [$50].
* Sec. 8. AS 11.46.285(b) is amended to read:
(b) Fraudulent use of an access device is
(1) a class B felony if the value of the
property or services obtained is $25,000 or more;
(2) a class C felony if the value of the
property or services obtained is $1,500 [$50] or more
but less than $25,000;
(3) a class A misdemeanor if the value of
the property or services obtained is less than $1,500
[$50].
* Sec. 9. AS 11.46.295 is amended to read:
Sec. 11.46.295. Prior convictions. For purposes
of considering prior convictions in prosecuting a
crime of theft under AS 11.46.130(a)(6) or
11.46.140(a)(2) [11.46.140(a)(3)], or in prosecuting
the crime of concealment of merchandise under
AS 11.46.220(c), a conviction for an offense under
another law or ordinance with similar elements is a
conviction of an offense having elements similar to
those of an offense defined as such under Alaska law
at the time the offense was committed. The court shall
consider the date of a prior conviction as occurring
on the date that sentence is imposed for the prior
offense.
* Sec. 10. AS 11.46.360(a) is amended to read:
(a) A person commits the crime of vehicle theft
in the first degree if, having no right to do so or
any reasonable ground to believe the person has such a
right, the person drives, tows away, or takes
(1) the car, truck, motorcycle, motor home,
bus, aircraft, or watercraft of another;
(2) the propelled vehicle of another and
(A) the vehicle or any other property of
another is damaged in a total amount of $1,500 [$500]
or more;
(B) the owner incurs reasonable expenses as
a result of the loss of use of the vehicle, in a total
amount of $1,500 [$500] or more; or
(C) the owner is deprived of the use of the
vehicle for seven days or more;
(3) the propelled vehicle of another and
the vehicle is marked as a police or emergency
vehicle; or
(4) the propelled vehicle of another and,
within the preceding seven years, the person was
convicted under
(A) this section or AS 11.46.365;
(B) former AS 11.46.482(a)(4) or (5);
(C) former AS 11.46.484(a)(2);
(D) AS 11.46.120 - 11.46.140 of an offense
involving the theft of a propelled vehicle; or
(E) a law or ordinance of this or another
jurisdiction with elements substantially similar to
those of an offense described in (A) - (D) of this
paragraph.
* Sec. 11. AS 11.46.482(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the third degree if, having no right to do
so or any reasonable ground to believe the person has
such a right,
(1) with intent to damage property of
another, the person damages property of another in an
amount of $1,500 [$500] or more;
(2) the person recklessly creates a risk of
damage in an amount exceeding $100,000 to property of
another by the use of widely dangerous means; or
(3) the person knowingly
(A) defaces, damages, or desecrates a
cemetery or the contents of a cemetery or a tomb,
grave, or memorial regardless of whether the tomb,
grave, or memorial is in a cemetery or whether the
cemetery, tomb, grave, or memorial appears to be
abandoned, lost, or neglected;
(B) removes human remains or associated
burial artifacts from a cemetery, tomb, grave, or
memorial regardless of whether the cemetery, tomb,
grave, or memorial appears to be abandoned, lost, or
neglected.
* Sec. 12. AS 11.46.484(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the fourth degree if, having no right to
do so or any reasonable ground to believe the person
has such a right
(1) with intent to damage property of
another, the person damages property of another in an
amount of $250 [$50] or more but less than $1,500
[$500];
(2) the person tampers with a fire
protection device in a building that is a public
place;
(3) the person knowingly accesses a
computer, computer system, computer program, computer
network, or part of a computer system or network;
(4) the person uses a device to descramble
an electronic signal that has been scrambled to
prevent unauthorized receipt or viewing of the signal
unless the device is used only to descramble signals
received directly from a satellite or unless the
person owned the device before September 18, 1984; or
(5) the person knowingly removes,
relocates, defaces, alters, obscures, shoots at,
destroys, or otherwise tampers with an official
traffic control device or damages the work upon a
highway under construction.
* Sec. 13. AS 11.46.486(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the fifth degree if, having no right to do
so or any reasonable ground to believe the person has
such a right,
(1) with reckless disregard for the risk of
harm to or loss of the property or with intent to
cause substantial inconvenience to another, the person
tampers with property of another;
(2) with intent to damage property of
another, the person damages property of another in an
amount less than $250 [$50]; or
(3) the person rides in a propelled vehicle
knowing it has been stolen or that it is being used in
violation of AS 11.46.360 or 11.46.365(a)(1).
* Sec. 14. AS 11.46.530(b) is amended to read:
(b) Criminal simulation is
(1) a class C felony if the value of what
the object purports to represent is $1,500 [$500] or
more;
(2) a class A misdemeanor if the value of
what the object purports to represent is $250 [$50] or
more but less than $1,500 [$500];
(3) a class B misdemeanor if the value of
what the object purports to represent is less than
$250 [$50].
* Sec. 15. AS 11.46.620(d) is amended to read:
(d) Misapplication of property is
(1) a class C felony if the value of the
property misapplied is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property misapplied is less than $1,500 [$500].
* Sec. 16. AS 11.46.730(c) is amended to read:
(c) Defrauding creditors is a class A
misdemeanor unless that secured party, judgment
creditor, or creditor incurs a pecuniary loss of
$1,500 [$500] or more as a result to the defendant's
conduct, in which case defrauding secured creditors is
(1) a class B felony if the loss is $25,000
or more;
(2) a class C felony if the loss is $1,500
[$500] or more but less than $25,000."
Page 1, line 7:
Delete "Section 1"
Insert "Sec. 17"
Renumber the following bill sections accordingly.
Page 5, line 23:
Delete "sec. 8"
Insert "sec. 24"
Page 5, line 24:
Delete "sec. 9"
Insert "sec. 25"
Page 5, line 29:
Delete "sec. 1"
Insert "sec. 17"
Page 5, line 30:
Delete "sec. 2"
Insert "sec. 18"
Delete "sec. 3"
Insert "sec. 19"
Page 5, line 31:
Delete "sec. 4"
Insert "sec. 20"
Page 6, line 1:
Delete "sec. 7"
Insert "sec. 23"
Page 6, line 3, following "(b)":
Insert "AS 11.46.130(a), as amended by sec. 1 of
this Act, AS 11.46.140(a), as amended by sec. 2 of
this Act, AS 11.46.150(a), as amended by sec. 3 of
this Act, AS 11.46.220(c), as amended by sec. 4 of
this Act, AS 11.46.260(b), as amended by sec. 5 of
this Act, AS 11.46.270(b), as amended by sec. 6 of
this Act, AS 11.46.280(d), as amended by sec. 7 of
this Act, AS 11.46.285(b), as amended by sec. 8 of
this Act, AS 11.46.295, as amended by sec. 9 of this
Act, AS 11.46.360(a), as amended by sec. 10 of this
Act, AS 11.46.482(a), as amended by sec. 11 of this
Act, AS 11.46.484(a), as amended by sec. 12 of this
Act, AS 11.46.486(a), as amended by sec. 13 of this
Act, AS 11.46.530(b), as amended by sec. 14 of this
Act, AS 11.46.620(d), as amended by sec. 15 of this
Act, AS 11.46.730(c), as amended by sec. 16 of this
Act, and"
Page 6, line 3:
Delete "sec. 6"
Insert "sec. 22"
Delete "applies"
Insert "apply"
Page 6, line 5:
Delete "sec. 8"
Insert "sec. 24"
Page 6, line 10:
Delete "Sections 8 and 9"
Insert "Sections 24 and 25"
Delete "sec. 12"
Insert "sec. 28"
SENATOR COGHILL explained that the purpose of the amendment was
to raise the threshold amounts for property offenses. It
addresses theft and its related offenses and it deals with all
the associated misdemeanors and felonies. These property crimes
have a value threshold that distinguishes first, second, third
and fourth degree offenses that are a class C felony or an A or
B misdemeanor. The amendment adjusts the value thresholds across
the statutes from $500 to $1,500 and $50 to $250.
He directed attention to a chart of felony thresholds for
property theft in the western U.S. that shows that Alaska is the
lowest at $500, whereas Montana and Utah have the highest
thresholds at $1,500. The proposed amendment would bring Alaska
more in alignment with those states.
SENATOR COGHILL noted a court system document that shows the
numbers of property crime cases filed under AS 11.46 during
FY11. There were 911 cases of theft where the property was
valued at more than $500; 807 cases of theft where the property
was valued at $50-$499; 404 cases of theft where the property
was valued under $50; 171 cases of fraud where the property was
valued at $50-$24,999; and 738 cases of criminal mischief and
property damage where the property was valued at $50-$499.
2:12:54 PM
SENATOR COGHILL said he understands that the lower threshold is
used as a hammer to get misdemeanor pleas, but he doesn't
believe it's equitable to make someone a felon because they
stole a $700 bike or broke a $1,000 window.
SENATOR WIELECHOWSKI commented that someone recently mentioned
that the laws create disparate treatment between urban and rural
areas. A window that's valued at $200 in Anchorage may be valued
at three or four times that in a rural village. Depending on
location, breaking that window can be a misdemeanor or a felony.
He noted that 3,794 property crime cases were filed in FY11 and
asked how many total crimes there were.
CHAIR FRENCH asked Doug Moody and Leslie Houston if they had
that information.
2:15:03 PM
LESLIE HOUSTON, Director, Division of Administrative Services,
Department of Corrections (DOC), introduced herself and offered
to follow up.
CHAIR FRENCH said his inclination was to adopt the amendment
and, if necessary, adjust it at a future hearing. He thanked
Senator Coghill for bringing the amendment forward, and
highlighted that in the last 20 years Alaska's prison population
has shifted from mostly violent offenders to mostly nonviolent
offenders. To change that will require some policy changes, he
said.
SENATOR COGHILL clarified the intent of the amendment was not to
lighten up on crime, but to more appropriately match the penalty
to the crime.
CHAIR FRENCH confirmed that no one was saying that offenders
would not be held accountable.
SENATOR WIELECHOWSKI asked to hear the administration's position
on the amendment.
2:19:03 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), stated that DOL did
not have a position on the amendment, but had no objection. The
rationale is understandable, but it does put the department in
an awkward position because it is charging and prosecuting
people under the current law.
SENATOR WIELECHOWSKI asked if the administration believes that
this is good policy.
MS. CARPENETI replied she was not aware if anyone above her had
considered the amendment or taken a position on it.
CHAIR FRENCH asked Senator Coghill if he'd reviewed the
amendment with police chiefs.
SENATOR COGHILL replied he did in years past and they're
understandably not big fans. He added that he did not ask the
administration for an endorsement, and he's aware of the
difficulty associated with shifting a threshold when DOL is
charging and prosecuting under the current law.
CHAIR FRENCH stated that the amendment is before the committee
and there's an objection.
At ease from 2:21:40 p.m. to 2:22:03 p.m.
CHAIR FRENCH reconvened the hearing and stated that he wanted to
hear from police chiefs and Senator Coghill mentioned talking to
members of the other body. He asked Senator Wielechowski if he
had ideas about the amendment.
SENATOR WIELECHOWSKI expressed a desire to hear from law
enforcement and the administration about whether this is good
policy.
MS. CARPENETI offered to try to get an answer.
SENATOR COGHILL said he believes this is a good policy call but
he too would like to hear from all sides.
SENATOR COGHILL withdrew Amendment 1 with the understanding that
he would bring it back for further debate at a future meeting.
2:24:11 PM
CHAIR FRENCH moved Amendment 2, labeled 27-LS0811\I.2, and
objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: SB 186
Page 1, line 1, following "Act":
Insert "relating to assault causing serious
bodily injury to a child; relating to a definition of
"serious bodily injury to a child";"
Page 1, following line 6:
Insert new bill sections to read:
"* Section 1. AS 11.41.200(a) is amended to read:
(a) A person commits the crime of assault in the
first degree if
(1) that person recklessly causes serious
physical injury to another by means of a dangerous
instrument;
(2) with intent to cause serious physical
injury to another, the person causes serious physical
injury to any person;
(3) the person knowingly engages in conduct
that results in serious physical injury to another
under circumstances manifesting extreme indifference
to the value of human life; or
(4) that person recklessly causes serious
physical injury to another by repeated assaults using
a dangerous instrument, even if each assault
individually does not cause serious physical injury;
(5) while being 18 years of age or older,
that person
(A) intentionally causes serious bodily
injury to a child under 12 years of age or to a child
under 16 years of age who is mentally or physically
impaired; or
(B) recklessly causes serious bodily injury
on one or more than one occasion to a child under 12
years of age or to a child under 16 years of age who
is mentally or physically impaired.
* Sec. 2. AS 11.81.900(b) is amended by adding a
new paragraph to read:
(65) "serious bodily injury to a child"
includes second or third degree burns, a fracture of
any bone, a concussion, strangulation, injuries to the
skin that involve severe bruising or the likelihood of
permanent or protracted disfigurement, including those
sustained by striking children with objects, or other
physical injury that results in significant physical
injury to the child."
Page 1, line 7:
Delete "Section 1"
Insert "Sec. 3"
Renumber the following bill sections accordingly.
Page 5, line 23:
Delete "sec. 8"
Insert "sec. 10"
Page 5, line 24:
Delete "sec. 9"
Insert "sec. 11"
Page 5, line 29:
Delete "sec. 1"
Insert "sec. 3"
Page 5, line 30:
Delete "sec. 2"
Insert "sec. 4"
Delete "sec. 3"
Insert "sec. 5"
Page 5, line 31:
Delete "sec. 4"
Insert "sec. 6"
Page 6, line 1:
Delete "sec. 7"
Insert "sec. 9"
Page 6, lines 3 - 4:
Delete all material and insert:
"(b) AS 11.41.200(a), as amended by sec. 1 of
this Act, AS 11.81.900(b)(65), as added by sec. 2 of
this Act, and AS 12.55.090, as amended by sec. 8 of
this Act, apply to offenses occurring on or after the
effective date of this Act."
Page 6, line 5:
Delete "sec. 8"
Insert "sec. 10"
Page 6, line 10:
Delete "Sections 8 and 9"
Insert "Sections 10 and 11"
Delete "sec. 12"
Insert "sec. 14"
CHAIR FRENCH explained that the amendment incorporates some
recommendations from the Children's Justice Act Task Force to
look at ways to strengthen the statutes regarding assault on a
child.
2:25:19 PM
MS. CARPENETI expressed concern with the proposed amendment to
Sec. 11.41.200, assault in the first degree. The Office of
Special Prosecutions and Appeals (OSPA) said they probably
wouldn't use the charge in the proposed Sec. 11.41.200(a)(5)(A)
because it would be easier to charge under the current Sec.
11.41.200(a)(2). That is, "with intent to cause serious physical
injury to another, the person causes serious physical injury to
any person." The new provision proposed in Sec.
11.41.200(a)(5)(B) would also be covered under a crime of
assault in the second degree. That crime is already prohibited
and it uses definitions that the courts and attorneys are
accustomed to. She also mentioned that the definition proposed
by the task force for "serious bodily injury" was problematic
because it listed a series of examples rather than giving a
generic definition.
She said she worked on some suggestions and would make them
available at the Chair's discretion. These would include
possibly amending the crime of endangering the welfare of a
child in the first degree, which is a class C felony under most
circumstances. It talks about reckless failure to provide
adequate food or liquids to a child that results in protracted
impairment of the child's health. These too are terms that DOL
uses and have been considered by courts.
2:30:32 PM
CHAIR FRENCH commented on the apparent disconnect between the
Children's Justice Act Task Force representation and DOL's
representation, and encouraged Ms. Carpeneti to speak with the
task force representatives about where they feel there are
weaknesses in the system.
MS. CARPENETI responded that she would be happy to speak to both
Jan Rutherdale and Mr. Janidlo about specific cases and the
underlying reasons that the people who testified thought that
the criminal justice system was inadequate.
SENATOR COGHILL asked what the culpable mental state is for
proving someone acted "recklessly."
MS. CARPENETI explained that the prosecution has to prove that
the person was aware of the risk and consciously disregarded it.
SENATOR COGHILL asked if there is a different culpable state if
the victim is a child as opposed to an adult.
MS. CARPENETI replied the culpable mental state is the same
under AS 11.41.200(a)(2), whether the victim is an adult or a
child.
SENATOR COGHILL said he was concerned that this would make it
more difficult to charge somebody who had harmed a child.
MS. CARPENETI clarified that this does not change the culpable
mental state.
2:34:48 PM
CHAIR FRENCH asked Ms. Houston and Mr. Moody if they wanted to
comment on the amendment.
DOUGLAS MOODY, Attorney, Public Defender Agency, Department of
Administration (DOA), said he didn't have the amendment.
CHAIR FRENCH said he would likely withdraw the proposed
amendment to allow time for more background work before taking
final action as a committee.
2:35:49 PM
CHAIR FRENCH withdrew Amendment 2.
SENATOR COGHILL asked if bodily injury to a child would be an
aggravator or a primary charge.
CHAIR FRENCH said it's structured in the amendment as a primary
charge. He asked Ms. Carpeneti if there was an aggravator
dealing with the age of a victim.
MS. CARPENETI replied there is an aggravator that deals with a
victim that is particularly vulnerable; that includes age.
SENATOR COGHILL opined that this would create a level of proof
that may not have to be the same level as an aggravator.
CHAIR FRENCH clarified that aggravators are just like charges.
SENATOR COGHILL asked if there was more discretion.
MS. CARPENETI said that under the Blakely decision, the state
would have to prove the aggravator beyond a reasonable doubt to
a jury, but in sentencing a judge has discretion to weigh the
worth of the aggravator.
2:37:29 PM
CHAIR FRENCH asked if DOL's case management system is able to
sort how often a particular aggravator is used.
MS. CARPENETI offered to follow up with an answer.
CHAIR FRENCH announced he would hold SB 186 in committee.
2:37:49 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:37 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 165 amendment 1.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 amendment 2.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 Amendment 3.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 memo trustees power to appoint.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 memo uniform transfer to minors.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 186 Amendment I.1.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 186 |
| SB 186 Amendment I.2.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 186 |