02/27/2002 01:10 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 27, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 15
Proposing amendments to the Constitution of the State of Alaska
relating to inflation- proofing the permanent fund.
- MOVED CSHJR 15(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 25
Proposing an amendment to the Constitution of the State of
Alaska relating to initiative and referendum petitions.
- MOVED HJR 25 OUT OF COMMITTEE
HOUSE BILL NO. 213
"An Act relating to initiative and referendum petitions; and
providing for an effective date."
- MOVED HB 213 OUT OF COMMITTEE
HOUSE BILL NO. 350
"An Act relating to terroristic threatening."
- HEARD AND HELD
HOUSE BILL NO. 328
"An Act relating to the crimes of damaging an oil or gas
pipeline or supporting facility, criminal mischief, and
terroristic threatening; making conforming amendments; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HJR 15
SHORT TITLE:CONST. AM: PERMANENT FUND
SPONSOR(S): RLS BY REQUEST OF LEG BUDGET & AUDIT
Jrn-Date Jrn-Page Action
02/14/01 0316 (H) READ THE FIRST TIME -
REFERRALS
02/14/01 0316 (H) JUD, FIN
10/19/01 (H) JUD AT 11:00 AM Anch LIO Conf
Rm
10/19/01 (H) Heard & Held
10/19/01 (H) MINUTE(JUD)
02/04/02 (H) JUD AT 1:00 PM CAPITOL 120
02/04/02 (H) Scheduled But Not Heard
02/08/02 (H) JUD AT 1:00 PM CAPITOL 120
02/08/02 (H) Heard & Held
MINUTE(JUD)
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 25
SHORT TITLE:CONST AM: INITIATIVE/REFERENDUM PETITIONS
SPONSOR(S): REPRESENTATIVE(S)WILLIAMS
Jrn-Date Jrn-Page Action
03/26/01 0728 (H) READ THE FIRST TIME -
REFERRALS
03/26/01 0728 (H) STA, JUD, FIN
04/24/01 (H) STA AT 8:00 AM CAPITOL 102
04/24/01 (H) Bill Postponed
04/26/01 (H) STA AT 8:00 AM CAPITOL 102
04/26/01 (H) Scheduled But Not Heard
04/26/01 (H) MINUTE(STA)
04/26/01 1256 (H) COSPONSOR(S): WILSON
04/28/01 (H) STA AT 9:00 AM CAPITOL 102
04/28/01 (H) <Bill Postponed>
02/07/02 (H) STA AT 8:00 AM CAPITOL 102
02/07/02 (H) Moved Out of Committee
MINUTE(STA)
02/08/02 2176 (H) STA RPT 5DP 2DNP
02/08/02 2176 (H) DP: WILSON, STEVENS, JAMES,
FATE,
02/08/02 2176 (H) COGHILL; DNP: CRAWFORD, HAYES
02/08/02 2177 (H) FN1: (GOV)
02/20/02 (H) JUD AT 1:00 PM CAPITOL 120
02/20/02 (H) Heard & Held
MINUTE(JUD)
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 213
SHORT TITLE:INITIATIVE/REFERENDUM PETITIONS
SPONSOR(S): REPRESENTATIVE(S)WILLIAMS
Jrn-Date Jrn-Page Action
03/26/01 0729 (H) READ THE FIRST TIME -
REFERRALS
03/26/01 0729 (H) STA, JUD, FIN
04/24/01 (H) STA AT 8:00 AM CAPITOL 102
04/24/01 (H) Bill Postponed
04/26/01 (H) STA AT 8:00 AM CAPITOL 102
04/26/01 (H) Heard & Held
04/26/01 (H) MINUTE(STA)
04/26/01 1257 (H) COSPONSOR(S): WILSON
04/28/01 (H) STA AT 9:00 AM CAPITOL 102
04/28/01 (H) <Bill Postponed>
02/07/02 (H) STA AT 8:00 AM CAPITOL 102
02/07/02 (H) Moved Out of Committee
MINUTE(STA)
02/08/02 2178 (H) STA RPT 5DP 1DNP 1NR
02/08/02 2178 (H) DP: WILSON, STEVENS, JAMES,
FATE,
02/08/02 2178 (H) COGHILL; DNP: CRAWFORD; NR:
HAYES
02/08/02 2178 (H) FN1: ZERO(GOV)
02/20/02 (H) JUD AT 1:00 PM CAPITOL 120
02/20/02 (H) Heard & Held
MINUTE(JUD)
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 350
SHORT TITLE:TERRORISTIC THREATS
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE
Jrn-Date Jrn-Page Action
01/23/02 2040 (H) READ THE FIRST TIME -
REFERRALS
01/23/02 2040 (H) TRA, JUD
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
02/19/02 (H) Moved CSHB 350(TRA) Out of
Committee -- Time Change --
02/19/02 (H) MINUTE(TRA)
02/20/02 2334 (H) TRA RPT CS(TRA) NT 5NR 1AM
02/20/02 2334 (H) NR: SCALZI, OGAN, KOOKESH,
MASEK,
02/20/02 2334 (H) KOHRING; AM: WILSON
02/20/02 2335 (H) FN1: ZERO(CRT)
02/20/02 2335 (H) FN2: INDETERMINATE(ADM)
02/20/02 2335 (H) FN3: INDETERMINATE(LAW)
02/20/02 2335 (H) REFERRED TO JUDICIARY
02/20/02 2348 (H) FIN REFERRAL ADDED AFTER JUD
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 328
SHORT TITLE:TERRORISTIC THREATENING/PIPELINE DAMAGE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/16/02 1978 (H) READ THE FIRST TIME -
REFERRALS
01/16/02 1978 (H) JUD
01/16/02 1978 (H) FN1: ZERO(ADM); FN2:
ZERO(LAW)
01/16/02 1978 (H) GOVERNOR'S TRANSMITTAL LETTER
01/16/02 1978 (H) REFERRED TO JUDICIARY
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE LESIL McGUIRE
Alaska State Legislature
Capitol Building, Room 418
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 350.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Presented HB 328 on behalf of the
administration and responded to questions.
HEATHER M. NOBREGA, Staff
to Representative Rokeberg
House Judiciary Standing Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 328 spoke to the
need for a technical amendment to Amendment 2.
ACTION NARRATIVE
TAPE 02-25, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order. Representative Kookesh arrived as the
meeting was in progress.
HJR 15 - CONST. AM: PERMANENT FUND
Number 0041
CHAIR ROKEBERG announced that the first order of business would
be HOUSE JOINT RESOLUTION NO. 15, Proposing amendments to the
Constitution of the State of Alaska relating to inflation-
proofing the permanent fund. [Before the committee was
committee substitute (CS) for HJR 15, version 22-LS0568\C, Cook,
1/31/02, which was adopted as a work draft on 2/8/02.]
Number 0083
REPRESENTATIVE JAMES moved to report committee substitute (CS)
for HJR 15, version 22-LS0568\C, Cook, 1/31/02, out of committee
[with individual recommendations and the accompanying fiscal
notes]. There being no objection, CSHJR 15(JUD) was reported
from the House Judiciary Standing Committee.
HJR 25 - CONST AM: INITIATIVE/REFERENDUM PETITIONS
Number 0112
CHAIR ROKEBERG announced that the next order of business would
be HOUSE JOINT RESOLUTION NO. 25, Proposing an amendment to the
Constitution of the State of Alaska relating to initiative and
referendum petitions.
Number 0201
REPRESENTATIVE JAMES moved to report HJR 25 out of committee
with individual recommendations and the accompanying fiscal
note.
Number 0218
REPRESENTATIVE BERKOWITZ objected. He said he did not think
that there is a problem with the current method of handling
initiative and referendum petitions; therefore, there is no need
to alter the Alaska State Constitution as is proposed by HJR 25.
Number 0250
A roll call vote was taken. Representatives Coghill, Meyer,
James, and Rokeberg voted to report HJR 25 from committee.
Representative Berkowitz voted against it. Therefore, HJR 25
was reported out of the House Judiciary Standing Committee by a
vote of 4-1.
HB 213 - INITIATIVE/REFERENDUM PETITIONS
Number 0330
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 213, "An Act relating to initiative and
referendum petitions; and providing for an effective date."
Number 0334
REPRESENTATIVE JAMES moved to report HB 213 out of committee
with individual recommendations and the accompanying zero fiscal
note.
Number 0336
REPRESENTATIVE BERKOWITZ objected.
Number 0338
A roll call vote was taken. Representatives Meyer, James,
Coghill, and Rokeberg voted to report HB 213 from committee.
Representative Berkowitz voted against it. Therefore, HB 213
was reported out of the House Judiciary Standing Committee by a
vote of 4-1.
CHAIR ROKEBERG called an at-ease from 1:14 p.m. to 1:17 p.m.
HB 350 - TERRORISTIC THREATS
[Contains references and comparisons to HB 328, along with
mention that aspects of both HB 350 and HB 328 would perhaps be
combined in a committee substitute (CS).]
Number 0340
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 350, "An Act relating to terroristic
threatening." [Before the committee was CSHB 350(TRA).]
Number 0389
REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor,
noted that CSHB 350(TRA) adds to existing statutes, which
already provide for the crime of criminal mischief in the first
degree - a class B felony - and the crime of terroristic
threatening - a class C felony. She explained that HB 350 adds
tampering with water to the statute pertaining to criminal
mischief in the first degree. It also adds, to the statute
pertaining to terroristic threatening, a reference to public
area; mode of public transportation; disruption of the schedule
of an entity providing transportation services; and the
functioning of [oil or] gas pipelines and their supporting
utilities, facilities, and transportation/cargo facilities. She
noted that the later change is located in Section 2 of HB 350.
REPRESENTATIVE McGUIRE offered that HB 350, much like HB 328, is
simply an attempt by the State of Alaska to address issues
raised in the wake of the national tragedy that occurred on
September 11, 2001, and to address potential new crimes relating
to terrorism. She noted that current statutes already address
some of these issues, and opined that HB 350 merely strengthens
those statutes. In response to the question of whether a power
plant would fall under the definition of utility, she said that
it would. In conclusion, she asked the committee for its
support of HB 350.
CHAIR ROKEBERG referenced the standard of "intentionally
damages" found in Section 1, page 1, line 15, of HB 350. He
noted that, in contrast, HB 328 proposes to remove that language
and replace it with "tampers with", which, he opined, did not
provide for any standard at all. He asked Representative
McGuire to comment on this point.
REPRESENTATIVE McGUIRE indicated that she did have some concern
with that aspect of HB 328, given that it proposes to change the
mental state from "intentionally", which, she opined, is a good
standard to have. She noted that this is the first opportunity
to hear both HB 350 and HB 328 together "as a [possible] merge."
She surmised that the Department of Law would be able to address
that issue during the hearing on HB 328. She added that she
would prefer for the language to remain "intentionally damages".
CHAIR ROKEBERG noted that this same section of HB 328 [Section
3] also includes reference to airplanes and helicopters. He
asked Representative McGuire whether she thought this would be a
good addition.
REPRESENTATIVE McGUIRE said yes; "I'm comfortable with that
language and I think it's highly appropriate."
CHAIR ROKEBERG noted that after adding "tampers with" in this
section, HB 328 also refers to a "reckless disregard" standard.
REPRESENTATIVE McGUIRE, notwithstanding that point, opined that
keeping an intentional standard would be better.
Number 0744
REPRESENTATIVE McGUIRE, to wrap up, remarked that the
legislature is charged with monitoring the statutes to ensure
that they address current events, and certainly what occurred on
September 11 is one such event. She stated that her intent with
HB 350 is simply to bring the statutes up to date, and posited
that this is also the governor's intent with HB 328.
CHAIR ROKEBERG mentioned that although Section 2 of HB 350
merely expands the existing crime of terroristic threatening, HB
328 appears to create a new crime [of terroristic threatening in
the first degree].
REPRESENTATIVE McGUIRE replied that Section 2 of HB 350 does not
create a new crime, it simply adds to the existing crime of
terroristic threatening, which is class C felony. But, she
opined, one could argue that it's a new crime in the sense that
if a person meets the elements of making a false report of a
circumstance that exists or is about to exist, then that would
be a new crime; however, "the statutory framework, as you can
see, is already there for that to be a class C felony."
Therefore, HB 350 is just adding language stipulating that if,
in making that false report, it causes the evacuation of a
public area or mode of transportation, then the person can be
charged with a class C felony.
CHAIR ROKEBERG announced that HB 350 would be held over.
HB 328 - TERRORISTIC THREATENING/PIPELINE DAMAGE
[Contains references and comparisons to HB 350, along with
mention that aspects of both HB 328 and HB 350 would perhaps be
combined in a committee substitute (CS).]
Number 0905
CHAIR ROKEBERG announced that the last order of business would
be HOUSE BILL NO. 328, "An Act relating to the crimes of
damaging an oil or gas pipeline or supporting facility, criminal
mischief, and terroristic threatening; making conforming
amendments; and providing for an effective date."
Number 0911
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
mentioned that HB 328 originated along with the administration's
other bills pertaining to the terroristic threats that have
occurred in our country. She added that HB 328 was drafted as a
result of meetings by district attorneys throughout the state
who were considering what the possibilities were of terroristic
acts in Alaska and what could be done to make the statutes more
responsive to those possibilities.
MS. CARPENETI explained that HB 328 focuses on what is
considered the most vulnerable property in Alaska, the oil
pipeline and its supporting facilities. Intentionally damaging
an oil or gas pipeline or supporting facility is currently
considered criminal mischief in the first degree and is a class
B felony, which carries a maximum of ten years' incarceration;
considering the possibility of harm to the state if intentional
damage were committed to the pipeline, HB 328 changes this crime
to a class A felony. Also, the crime of tampering with an oil
or gas pipeline or supporting facility is currently considered
criminal mischief in the second degree and is a class C felony;
HB 328 raises this crime to a class B felony [under criminal
mischief in the first degree], and "has the same culpable mental
state of reckless disregard to damage."
MS. CARPENETI noted that HB 328 also provides that making a
false threat of damaging an oil or gas pipeline or supporting
facility would be a class C felony under terroristic threatening
in the second degree, which is an additional crime created by HB
328. Under current law, it's criminal mischief in the first
degree - a class B felony - to tamper with food; drugs;
cosmetics; or a container for food, drugs, or cosmetics, with
the intent to cause physical injury to another person. House
Bill 328 adds tampering with a person's water supply or a
container for a water supply to that same prohibition.
MS. CARPENETI explained that Section 7 of HB 328 creates the
crime of terroristic threatening in the first degree - a class B
felony - if a person sends an imitation biological or chemical
substance [with intent to] cause serious physical injury or
evacuation of a building; this provision of HB 328 mirrors the
current law of terroristic threatening but makes it a more
serious offense to send an imitation biological or chemical
substance. After noting that the current statute regarding
terroristic threatening would become terroristic threatening in
the second degree - a class C felony - she said that HB 328 adds
the prohibition of making a false threat to send an imitation
chemical or biological substance that is harmful to persons.
She remarked that HB 328 also makes various conforming
amendments that she would be happy to explain since they might
be confusing to a reader.
Number 1139
CHAIR ROKEBERG asked whether, "in terms of the whole panoply of
terroristic threatening as a crime," HB 328 has created a new
first-degree level.
MS. CARPENETI concurred that there would be a new level of
terroristic threatening.
CHAIR ROKEBERG surmised, then, that the current statute would
become second degree terroristic threatening and that there
would be additional aspects to it.
MS. CARPENETI said that is correct. She also reiterated that
the penalties have been raised for causing harm to an oil or gas
pipeline or supporting facility; this would become a class A
felony for intentionally causing damage, and would become a
class B felony for tampering with such.
MS. CARPENETI mentioned that members should have in their
packets a proposed amendment suggested by the DOL [which would
become Amendment 2]. She noted that [Amendment 2] does two
things. First, it amends Alaska's conspiracy law to provide
that it would be a crime to conspire to intentionally cause
damage to an oil or gas pipeline, to conspire to commit
terroristic threatening in the first degree, or to conspire to
commit criminal mischief in the first degree such as tampering
with a food or water supply or tampering with an oil or gas
pipeline.
CHAIR ROKEBERG asked whether those additions would occur because
of [paragraphs 4 and 5 of Amendment 2].
Number 1251
MS. CARPENETI clarified that Section 1 [of Amendment 2] would
add those items to the conspiracy law by amending AS
11.31.120(i)(2), changing the definition of "serious felony
offense" as it relates to the conspiracy law therein. She noted
that the rationale for this change to the conspiracy law is that
terrorists generally act in groups rather than individually.
She added that to qualify as a conspiracy, two or more people
have to agree to commit a crime and one person has to take a
step in furtherance of the commission of that crime.
MS. CARPENETI, referring to Section 2 [of Amendment 2],
explained that it would add two more ways in which a person
could commit the crime of murder in the first degree, which is
an unclassified felony. One of the additional ways would be if,
acting alone or with other people, the person commits
intentional damage to an oil or gas pipeline, and in the course
of that offense or in immediate flight from it, any person
causes the death of a person other than one of the participants.
She noted that this is "a felony murder theory" that the state
could charge murder in the first degree for somebody who, for
example, set fire to an oil pipeline and a worker was killed as
a result, without having to prove that the defendant
intentionally caused the death of that person, which is the
traditional theory of murder in the first degree.
MS. CARPENETI, still referring to changes proposed by Section 2
[of Amendment 2], explained that the other additional way to
commit murder in the first degree would be when a person commits
terroristic threatening in the first degree, and in the course
of or immediate flight from that crime, causes the death of
another person other than one of the participants. She added
that these changes would allow the state to charge a person with
murder in the first degree even though there's not proof that
the person actually intended to kill that individual while
committing or fleeing from the underlying crime. She noted that
[the death] must have occurred "pretty immediate - pretty close
- to the crime." For example, if a person blows up a pipeline
facility and people get killed, the state would not have to
prove that the person actually intended to kill people, just
that he/she intended to cause harm to the facility. In response
to a question, she explained that Alaska does have statutes
pertaining to felony murder in the first degree and felony
murder in the second degree.
Number 1508
REPRESENTATIVE BERKOWITZ, noting that he is not speaking to
[Amendment 2], said of HB 328:
There's some incongruities between the [class] A
felony proposed about damaging an oil pipeline and a
[class] B felony. I mean, you could be in a situation
where someone could be charged with [a class] A
felony, for example, [for] tearing down a fence at an
oil or gas pipeline or supporting facility; ... its an
intentional crime, ... it's [a class] A felony. And,
at the same time, someone could blow up a power plant
and that's a [class] B felony. I think the
incongruity I see is, when we carve out an exception
for oil or gas pipeline or supporting facility, what
we're really trying to say is, "This is the type of
facility that the state places a lot of importance
on." And if we could find a way of generalizing that
language so [that] we would have the [class] A felony
option available more broadly, [then], in essence,
there's more discretion. I think that's a better kind
of law than being as specific as we are by specifying
oil or gas pipeline or supporting facility.
MS. CARPENETI responded:
For the class A felony offense? Well, ... on the
Senate side, the first committee of [referral],
instead of making only intentionally damaging an oil
or gas pipeline the class A felony, they made all the
conduct covered in criminal mischief in the first
degree a class A felony. And that seems to me what
you're suggesting.
REPRESENTATIVE BERKOWITZ replied that there are reasons to have
gradations in charging, but noted that there should also be
recognition in the law that there are certain facilities so
essential to the community - power plants, water supplies, or
oil/gas pipelines, for example - that they should be taken
special care of. There ought to be a way of generalizing the
language, he opined, to allow more discretion in charging,
depending on the circumstances; also, there is the danger with
HB 328 that simply by tearing down a fence, someone could be
charged with a class A felony.
MS. CARPENETI remarked that in the aforementioned example of
someone tearing down a fence at an oil or gas pipeline or
supporting facility, that person would certainly not be charged
at the class A felony level.
REPRESENTATIVE BERKOWITZ, to counter, and referring to a prior
hearing on legislation pertaining to felony eluding, noted that
the committee had heard several examples of poor discretion in
charging. "Having been a prosecutor, I will tell you that there
are folks that use their discretion well, and there are folks
that use their discretion in an effort to force charge-
bargaining." He opined that it is not appropriate for the
legislature to give "them" that kind of latitude.
CHAIR ROKEBERG asked: Was there a "lesser included crime" under
this?
Number 1656
MS. CARPENETI said yes. The crime of damaging an oil or gas
pipeline or facility is currently in law as a class B felony,
she explained, and Section 2 of HB 328 creates [a new statute
pertaining solely to] that activity and makes it a class A
felony. And then Section 3 of HB 328 makes tampering with an
oil or gas pipeline facility a class B felony, instead of a
class C felony as it is in current law. She noted that HB 328
also adds to terroristic threatening in the second degree, which
is a class C felony, the crime of making a false report
threatening damage to an oil or gas pipeline or supporting
facility. So, she observed, there are gradations of conduct
and, certainly, charging discretion amongst those.
CHAIR ROKEBERG asked Ms. Carpeneti to continue with her
explanation of [Amendment 2].
MS. CARPENETI referred to the first section of page 3 of
[Amendment 2], which pertains to page 4, line 7, of HB 328. She
noted that this proposed change was suggested by Jerry
Luckhaupt, Legislative Counsel, Legal and Research Services
Division, Legislative Affairs Agency. Currently, HB 328
provides that it is terroristic threatening in the first degree
to send an imitation biological or chemical substance with
intent to cause fear or evacuation of a building or serious
public inconvenience. Ms. Carpeneti relayed that Mr. Luckhaupt
posed the question of what would happen to a person if he/she
sent a real biological or chemical substance that didn't harm
anybody physically but still caused fear, evacuation of a
building, or serious [public inconvenience]. Therefore, this
portion of [Amendment 2] is intended to address that situation,
since even if no one was hurt as a result of sending a real
biological or chemical substance, the intent is the same and it
is just as dangerous, or more so, as sending an imitation
biological or chemical substance. She added that should someone
send a real biological or chemical substance and cause harm,
then that person could also be charged with other crimes such as
assault.
Number 1773
CHAIR ROKEBERG pointed out that this proposed change to HB 328
would result in the person only being charged with a class B
felony for sending real anthrax.
MS. CARPENETI concurred but stipulated that such would be the
case only if no one was physically harmed as a result
REPRESENTATIVE BERKOWITZ said that is his point. He then
informed members that he would be offering an amendment to "that
section."
MS. CARPENETI, referring to the final section on page 3 of
[Amendment 2], explained that it is a conforming amendment that
defines the terms "chemical or biological substance" and
"imitation chemical or biological substance" for the purpose of
terroristic threatening in the first degree.
CHAIR ROKEBERG, referring to the portion of [Amendment 2] that
says "'a chemical or biological substance' means a material that
is harmful to the health of a person", opined that [that
language] is a little weak.
REPRESENTATIVE BERKOWITZ indicated that he was "going to fix
that too."
MS. CARPENETI said that it really depends on how specific the
legislature wants to be. Maybe, she suggested, it would be best
to say "causes serious physical injury", rather than "physical
injury"; that's another option for defining a chemical or
biological substance.
REPRESENTATIVE BERKOWITZ distributed [Amendment 1] and noted
that it focuses on [Sections 7 and 8] of HB 328. In response to
the question of which amendment should be addressed first, he
said it did not make much difference, but noted that there would
still need to be conforming amendments made.
REPRESENTATIVE JAMES suggested that the committee should come to
an agreement on the issues raised and then create a committee
substitute (CS).
CHAIR ROKEBERG mentioned that he did intend to have a CS, but
posited that by addressing the proposed amendments, they could
provide direction to the drafter.
Number 1949
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1.
Number 1957
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE BERKOWITZ explained that Amendment 1 [as it
affects Section 7] would add making a false report about any
substance to the crime of terroristic threatening in the first
degree; would remove the language specifying the means of
delivery; would change the language referring to places of
assembly and public transportation facilities so that it "tracks
the language that most states use, which is also parallel to
what the model penal code uses when discussing terroristic
threatening"; and would provide that a person convicted of this
crime may be sentenced to pay restitution in an amount equal to
the cost of the evacuation.
CHAIR ROKEBERG noted that Representative Berkowitz had provided
members with a handout; he then asked what that entailed.
REPRESENTATIVE BERKOWITZ relayed that that handout is from the
model penal code. He said that his preliminary research has
indicated that a number of states, including Hawaii and
Kentucky, have used this language.
Number 2021
REPRESENTATIVE BERKOWITZ went on to explain that Amendment 1, as
it affects Section 8 of HB 328, would change the language so
that it is more general, listing "life, health or property";
would mirror the model penal code with regard to places of
assembly and public transportation facilities; and would also
provide that a person convicted of this crime may be sentenced
to pay restitution in an amount equal to the cost of the
evacuation.
REPRESENTATIVE BERKOWITZ noted that he had once prosecuted
someone under the current statute, and recalled that it is a
very awkward statute the way it is currently written. He said
that the more words that "get thrown in, the more opportunity
there is to hang up a case." He recounted that on the case he
worked on, someone had called in a bomb threat to Hope Cottages,
Inc., up in Anchorage, but they weren't able to effect a
complete evacuation because some of the people were so
incapacitated that they couldn't be removed from the building
before the bomb squad came, so there was an issue about whether
there was really an evacuation.
CHAIR ROKEBERG expressed disbelief that the defense attorney
would attempt to assert that.
REPRESENTATIVE BERKOWITZ assured him that "the jury saw through
it." But that [case] just highlights the danger of leaving
unnecessary words in a statute, he said, and that is why he
thinks the language is cleaner if it just stipulates "any
substance". He continued: "We talk about biological or
chemical, what would that do for radioactive? I don't know what
category that fits in. What if it's not really harmful?
There's all kinds of possibilities that might get argued."
CHAIR ROKEBERG said he would hate to get a false report about a
"peanut butter cheesecake or something."
REPRESENTATIVE BERKOWITZ responded that wouldn't put a person in
fear of physical injury.
CHAIR ROKEBERG said it would depend on what a person's diet is.
REPRESENTATIVE JAMES asked, what if the person was allergic to
peanuts?
REPRESENTATIVE BERKOWITZ said: "Well, if you knew that there
were people who were allergic to peanuts, then, of course, it
could be [considered a threat]."
Number 2154
CHAIR ROKEBERG noted that the administration uses the litany of
"a building, public place, business premises", as opposed to
Representative Berkowitz's language of "place of assembly".
REPRESENTATIVE BERKOWITZ said the reason he thinks that is
preferable is that "if we use language that other states use,
that other jurisdictions use, then there's more clarity in what
we're talking about." He surmised that the impact is the same
regardless of which language is used.
CHAIR ROKEBERG asked whether those places - a public place or a
business premise - would be included within Representative
Berkowitz's definition of a "place of assembly"?
REPRESENTATIVE BERKOWITZ said yes.
REPRESENTATIVE JAMES said that she agrees with Representative
Berkowitz's rationale that it is better to avoid listing too
many things because if something is left out of that list, then
it creates a loophole. It is better to have a definition that
is "all-reaching," she added
MS. CARPENETI said she agrees that "the clearer you write, the
better." But the problem, she went on to say, is that with
[Amendment 1] there is a different concept. With HB 328,
terroristic threatening in the first degree applies to actions;
it doesn't apply to false threats. Terroristic threatening in
the second degree, or what is presently terroristic threatening,
applies to false threats. So there is a difference in conduct:
one is an action and one is a "verbal threat." And this raises
the concern that in Amendment 1, making the false report becomes
a class B felony, whereas threats about other things are still
class C felonies. She added that she very concerned about the
term "substance" in Amendment 1; she understands the concept of
wanting to use general terms but "substance" would have to
defined because this is a criminal law and people need to be on
notice, at least to a certain extent, as to what is against the
law - what conduct is acceptable and what is not - and that
would be difficult to do with a definition of "substance".
Notwithstanding this difficulty, she said that she would "be
happy to work on it."
Number 2279
CHAIR ROKEBERG asked if "radiological" substances would be
included in biological or chemical substances.
MS. CARPENETI said she believes so. She reiterated, however,
that she believes that if "substance" alone is used, it would
have to be defined.
CHAIR ROKEBERG suggested that perhaps the legislation could
refer to a "CBR" [a chemical, biological, radiological, and
nuclear weapons] manual from the Department of Defense.
MS. CARPENETI, in response, reminded members that the goal is to
use general language. She reiterated her concern that a class B
felony under Amendment 1 contains both verbal threats and
actions, and opined that it would be more logical to have
actions as a higher level of crime, as opposed to threats. She
offered that the DOL does exercise discretion wisely in
charging. "You want to have our criminal laws as specific as
possible and give notice as clearly as possible to people as to
what is against the law," she reiterated, and making a false
threat about "any substance" is pretty broad.
REPRESENTATIVE BERKOWITZ clarified that it's not just making any
false report. If someone makes a false report that there is
anthrax in the mail, how is the consequence any different from
there actually being anthrax in the mail? The impact of either
action - one action being the delivery, and the other action
being the false report about a delivery - is the same, he said,
and it ought to be clear to people that under certain
circumstances, speech is conduct.
MS. CARPENETI said she agreed that in terms of the public
inconvenience, both actions could create a similar harm. But if
it's real anthrax as opposed to imitation anthrax, the potential
harm is greater, she argued.
CHAIR ROKEBERG, to illustrate a possible argument, said, "But it
was only a joke."
REPRESENTATIVE BERKOWITZ acknowledged that there is a lot of
discussion about that in the commentaries [applicable] to other
states; that's always a defense: "I was just kidding." But a
false report can, just the same as a true report, place a person
in fear, it can cause evacuation, and it can cause public
inconvenience.
REPRESENTATIVE JAMES added that it could cause people to get
hurt as well.
MS. CARPENETI said that is correct, noting that it is a class C
felony under current law. Therefore, the question, she
surmised, is whether a false report under those circumstances
ought to be a class B felony instead, just as actually sending
[real anthrax] is. She opined that there is a quantitative
difference in that conduct, between the threat and the actual
sending.
Number 2412
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti to comment on the
restitution provisions of Amendment 1.
MS. CARPENETI indicated that those provisions should be located
in Title 12 rather than in Title 11, adding her belief that
"we're already able to do that," but that it wouldn't hurt to
make some provision in Title 12 specifying that restitution may
be imposed for these particular crimes. In response to
questions, she clarified that the restitution provisions of
Amendment 1 are not part of existing Title 11 but may be part of
existing law in Title 12, which is the reasonable location for
restitution provisions.
MS. CARPENETI noted that currently, Section 8 of HB 328 provides
that it is a crime to make a false report that a "circumstance
dangerous to human life exists", which is a more general term,
but Amendment 1 would change the language to read, "circumstance
dangerous to life, health or property". She indicated that she
would like to give more thought to the concept of adding
property to the crime of terroristic threatening in the second
degree, and offered that she would be happy to work with
"Representative Berkowitz and the drafter in trying to put ...
all these things into one bill."
CHAIR ROKEBERG mentioned that he would like to have more input
from the committee regarding "which direction we want to go."
He surmised that the administration supports a "three-part
criminal act," which is what HB 328 entails.
MS. CARPENETI asked: You mean in terms of damage to the
pipeline?
CHAIR ROKEBERG said no; he meant in terms of what terroristic
threatening is.
MS. CARPENETI clarified that the administration supports two
levels of offense.
CHAIR ROKEBERG surmised, then, that damage to the pipeline would
be the first offense.
TAPE 02-25, SIDE B
Number 2503
MS. CARPENETI clarified that the crime of causing damage to the
pipeline is found under the property section of criminal law,
whereas the crimes of terroristic threatening would be found
under a different section of Title 11. In response to
questions, she acknowledged that she believes that the crime of
making a false report should be an aspect of terroristic
threatening in the second degree, instead of the first degree.
Referring to the term "place of assembly", she said that
although that language may be used in other state statutes, to
her knowledge it isn't used in Alaska's criminal law.
MS. CARPENETI said that because of this, she would prefer to use
a term that is more familiar to "our criminal law," but
acknowledged that using "place of assembly" would be acceptable
as long as it is also defined in the statute. She noted that a
"place of assembly" could be a street corner where people stop
and cross the street, and so she [is reluctant] to put
unfamiliar terms in Title 11 without giving it more thought.
She also noted that while HB 328 currently says "building,
public place, business premises, or means of public
transportation", the term "business premises" was not intended
to refer strictly to offices or nonprofit corporations; the
administration intended that it also pertain to the grounds of
business premises.
CHAIR ROKEBERG concluded that Amendment 1 adds making a false
report [about a substance] "a first degree offense."
REPRESENTATIVE BERKOWITZ noted that Amendment 1 also deals with
the "substance" issue.
Number 2363
CHAIR ROKEBERG said he considers that aspect of Amendment 1 to
be a matter of definition, and indicated that he wants to talk
about the false report issue because that pertains to "the level
of crime." He concluded that the distinction between Sections 1
and 2 of Amendment 1 is that either [sending] a substance or
making a false report about a substance would be terroristic
threatening in the first degree, whereas making a false report
about a dangerous circumstance would be terroristic threatening
in the second degree. He said he is not very comfortable with
that [distinction].
REPRESENTATIVE BERKOWITZ noted that another distinction between
Sections 1 and 2 of Amendment 1 is that for the first-degree
crime, the person has to commit the act with the intent to cause
other things to happen, whereas with the second-degree crime,
the person knowingly makes a false report.
CHAIR ROKEBERG remarked that there is a slight shift in
standards there.
REPRESENTATIVE BERKOWITZ explained that under Section 1 of
Amendment 1, making a false report with the intent [to cause
something to happen], such as evacuating a building, would be a
class B felony. By contrast, under Section 2 of Amendment 1, a
person could knowingly make a false report without intending any
of the consequences listed.
CHAIR ROKEBERG said that although he appreciates the distinction
between the knowingly standard and the intent standard, he sides
with the administration on this point - that is, to not include
making a false report about a substance in the crime of
terroristic threatening in the first degree.
REPRESENTATIVE MEYER asked how a bomb threat would be treated
under Amendment 1.
MS. CARPENETI opined that since a bomb would be included in the
term "any substance", making a false bomb threat would be
terroristic threatening in the first degree - a class B felony,
but under HB 328, making a false threat would only be
terroristic threatening in the second degree - a class C felony.
CHAIR ROKEBERG pointed out that under the description she just
gave, a false bomb threat could also be terroristic threatening
in the first degree.
Number 2221
MS. CARPENETI said that she stands corrected; a [false bomb
threat] could be considered a biological or chemical substance,
and so it would qualify as terroristic threatening in the first
degree under HB 328 as well.
REPRESENTATIVE MEYER recounted that someone made the claim that
a bomb had been planted in his home, and that person was
subsequently convicted of a class C felony.
REPRESENTATIVE BERKOWITZ noted that under HB 328, if
Representative Meyer were in Juneau at the time the threat was
made, it could be argued that Representative Meyer was not in
fear of physical injury and he did not have to evacuate his home
since he was out of town, and that the threat wouldn't cause any
serious public inconvenience since it pertained to his private
residence; therefore, that situation might not be considered
terroristic threatening in the first degree.
MS. CARPENETI countered that under HB 328, it would still be
considered terroristic threatening in the first degree if the
threat puts any person in fear of physical injury, not just the
homeowner.
CHAIR ROKEBERG, returning to the issue of "substance", surmised
that Representative Berkowitz is proposing that the term "any
substance" encompasses actual or imitation biological, chemical,
radiological, or other substances. Chair Rokeberg said he is
not so sure that is true.
REPRESENTATIVE BERKOWITZ, in response, referred to the last
provision of [Amendment 2], which defines real and imitation
chemical or biological substances, and said he could argue that
teargas, for example, would not be covered by the term "a
material that is harmful to the health of a person", because it
has no long-term health consequences. He asked: Would the
police use it if there were? Are we going to subject the police
to suit if they use it? What if you use something that didn't
have a long-term effect, but just had an effect that didn't
affect a person's health? All of a sudden, he remarked,
questions of proof are raised. For example, does [a substance]
really affect someone's health or does it just temporarily
incapacitate a person, he asked.
Number 2075
MS. CARPENETI acknowledged that she could understand
Representative Berkowitz's concern with the definition in
[Amendment 2], and that it may need tightening up; however, she
has more concern with the use of the term "substance" than with
the definition which is at least limited in some regard.
REPRESENTATIVE BERKOWITZ offered to research whether "substance"
is defined [in statute].
MS. CARPENETI mentioned that there is a definition of
"controlled substance", but opined that there is not a statutory
definition of "substance".
CHAIR ROKEBERG called an at-ease from 2:13 p.m. to 2:15 p.m.
REPRESENTATIVE BERKOWITZ returned to the issue of the pipeline.
He mentioned that during a conversation he had with Ms.
Carpeneti the other day, she had indicated that because of the
state's interpretation of double jeopardy, Alaska would not
pursue a case if another sovereign [entity] pursued the case
first. Therefore, since the fellow that shot the pipeline [last
year] is now being prosecuted in federal court, it would seem,
according to his understanding of the aforementioned
conversation, that the state would not be pursuing a case
against that man.
MS. CARPENETI clarified that the federal government is charging
that individual with being a felon in possession of a firearm;
not damage to the pipeline. The damage-to-the-pipeline charges
will be pursued by the State of Alaska [under criminal mischief
in the first degree] and that trial is scheduled for September,
she explained.
REPRESENTATIVE BERKOWITZ asked whether there are any federal
statutes that could have been used regarding damage to the
pipeline, but that because of some accommodation between the
state and that federal government, the "feds" are opting to step
aside and let the state pursue that prosecution.
MS. CARPENETI replied that there could be [federal statutes
pertaining to damage to the pipeline] but she did not know
whether there was any such agreement made between the state and
the federal government regarding the prosecution of that case.
She noted that being a felon in possession of a "concealable"
firearm is also against Alaska law, but since the federal
government is prosecuting that offense, the state will not do
so. She mentioned that she had the charging document with her,
if any members were interested in obtaining a copy.
CHAIR ROKEBERG said he assumes that there is a [federal]
criminal statute against damage to an interstate pipeline, and
so imagines that there was some form of accommodation.
Number 1927
REPRESENTATIVE MEYER noted that [Section 3 of] HB 328 addresses
the issue of tampering with an airplane or helicopter. He asked
whether this provision would allow the state to prosecute
someone for this crime should the federal government opt not do
so.
MS. CARPENETI said that is correct; however, if the federal
government prosecutes the crime of tampering with an airplane or
helicopter first, then the state is forbidden by law to
prosecute the same act.
REPRESENTATIVE BERKOWITZ noted that although Alaska statutes say
Alaska cannot be the second entity to prosecute someone for a
crime, nothing precludes the federal government from doing so;
"the feds aren't as constrained as we are."
MS. CARPENETI said that is correct.
REPRESENTATIVE BERKOWITZ mentioned that this makes sense;
sometimes, if there is a case with a "tricky prosecution," for
example, the state might opt to go first in order to "work the
bugs out" - sort of take a dry run at it - and then the federal
government could go next.
MS. CARPENETI said that although that is a possibility, such a
scenario is highly unlikely. A lot of "ferry-type" crimes or
other [difficult] cases are sent to the federal government in
the hopes that "they will do something."
REPRESENTATIVE BERKOWITZ, returning to the issue of "substance",
explained that although the dictionary's definition is long, it
in essence means "the essential matter." He surmised that the
common usage of the word "substance" would work in statute.
CHAIR ROKEBERG pointed out, however, that it could also refer to
a peanut butter cheesecake.
Number 1756
REPRESENTATIVE KOOKESH countered:
Not if you take the word in the whole sphere of what
we're trying to do here, because when you look at it
and it talks about terroristic threatening in the
first degree, you certainly don't think about a peanut
butter sandwich, and you can't take it out of context
like that.
CHAIR ROKEBERG said, "True; however, the modifiers 'chemical'
and 'biological' certainly get your attention."
REPRESENTATIVE BERKOWITZ, referring again to the definition
found in the last provision of [Amendment 2], noted that in the
phrase "'a chemical or biological substance' means a material
that is harmful to the health of a person", the words "harmful
to the health of the person" goes to define chemical or
biological, whereas, according to his recollection of sentence
diagramming, "substance" means a material.
CHAIR ROKEBERG suggested that it could be changed to say "a
harmful substance", at the very least.
REPRESENTATIVE COGHILL posited that the terms "chemical" and
"biological" will always be part of the discussion, and asked if
it would be possible to just say those and "any substance with
the intent". He remarked that at least that way, "we have a
direction of intent in statute that gives some idea of what
we're looking at." He indicated that in this way, a nuclear
substance or some other natural substance could also be covered
under the additional term of "any substance".
REPRESENTATIVE JAMES mentioned the possibility of saying "any
substance with chemical properties".
Number 1641
CHAIR ROKEBERG, referring to the restitution provisions of
Amendment 1, noted that the DOL would prefer those provisions to
be included in [Title 12]. He asked Ms. Carpeneti to comment
further.
MS. CARPENETI pointed out that Title 12 contains all sentencing
provisions, and suggested looking to see if the restitution
provisions of Amendment 1 are already covered in Title 12. If
they are not, then language could be drafted to include them in
Title 12, she said.
CHAIR ROKEBERG mentioned that restitution would be appropriate
if a threat incurs expenses.
REPRESENTATIVE BERKOWITZ remarked that it would help on the
fiscal note too.
MS. CARPENETI, in response to questions, pointed out that HB 328
has indeterminate fiscal notes.
CHAIR ROKEBERG mentioned that he is inclined to agree with the
administration's viewpoint, rather than Representative
Berkowitz's, regarding Amendment 1; therefore, he would be
voting against Amendment 1. He acknowledged, however, that
perhaps some aspects of Amendment 1 ought to be adopted [via a
CS].
REPRESENTATIVE JAMES mentioned that she is not comfortable that
the discussion thus far has clarified the committee's intention
regarding language for a CS.
REPRESENTATIVE COGHILL said that there were a couple of things
he likes about Amendment 1. He said that he likes the idea of
having restitution, even if moved to Title 12, as well as the
idea of having a false report [about substances] be included in
terroristic threatening in the first degree. He mentioned that
for these reasons, he is inclined to vote for Amendment 1.
CHAIR ROKEBERG, referring to Amendment 1, observed that making
the distinction between acting with intent - as is stipulated in
Section 1 - and acting knowingly - as is stipulated in Section 2
- will be difficult to do when charging.
Number 1420
REPRESENTATIVE BERKOWITZ pointed out that the distinction has to
go to the effect. "You have to intend the consequence with the
[class] B felony, [whereas] you just have to know what you're
doing with [the class] C felony," he said. "If I tell you that
there is a bomb, and I don't really care what happens, that's a
[class] C felony. But if I tell you that there is a bomb
because I want you to clear out of the building, that's a
[class] B felony."
CHAIR ROKEBERG asked how that intent could be discerned before
the person is apprehended.
REPRESENTATIVE BERKOWITZ offered that there is the totality of
circumstances.
CHAIR ROKEBERG asked: Well, isn't a duck a duck, and a bomb
threat a bomb threat?
REPRESENTATIVE BERKOWITZ offered that "one way of getting there"
would be if the person had written "a long tract" about how
he/she hated a particular institution.
CHAIR ROKEBERG argued that it would still be difficult to make a
distinction between the two standards.
REPRESENTATIVE COGHILL pointed out that while there might be
less carnage with a false threat, terrorists generally intend
the same outcome as with a real threat - to terrorize the
people.
REPRESENTATIVE JAMES expressed concern with the concept of
holding someone to a different standard, depending on whether
anyone gets hurt.
CHAIR ROKEBERG acknowledged that he could be convinced that
making a false report could be just as damaging as making a real
report; however, the problem is still one of drafting the
statutes so that their application is clear and practical.
REPRESENTATIVE MEYER asked whether any of the language discussed
thus far is based on statutes from other states.
REPRESENTATIVE BERKOWITZ said, "This is an amalgam of our
thinking and the model penal code." He noted that a lot of
other people all across the country are going to be thinking
about these issues, so it would behoove the legislature to see
what those people are coming up with.
MS. CARPENETI said that the model penal code was the basis of
"our criminal-code revision commission in the late '70s in
enacting terroristic threatening." The model penal code was
used for a number of crimes, but with regard to terroristic
threatening in current law, she added, it only pertains to
threats. The crime of terroristic threatening in the first
degree as proposed by HB 328 pertains to acts - acts that are
threatening - she explained.
Number 1120
REPRESENTATIVE COGHILL noted that it all comes down to the
question of when a threat becomes an act. He remarked that
after [the terrorist attacks of] September 11, 2001, every
threat became a national emergency.
REPRESENTATIVE BERKOWITZ, referring to the language proposed for
the crime of terroristic threatening in the first degree,
pointed out that sending or delivering is actual conduct, but
attempting to send or deliver, or soliciting the sending or
delivery, is an action that is short of the actual act.
Therefore, in many ways, the concept of making a false report
fits in with that second category of soliciting or attempting to
send or deliver. In fact, he said, he would suggest that it is
even more aggravated than a solicitation.
CHAIR ROKEBERG said he would agree with that.
MS. CARPENETI noted that the legal distinction is that if a
person is soliciting somebody, it means he/she intends to do the
act; by contrast, making a false report is intending to make a
false report, not to actually do the act of sending [or
delivering]. That's why an attempt to actually deliver would
probably be considered more serious, because the person actually
has the item and is trying to do something with it, instead of
just merely talking about it, as is the case when making a false
report. That's a qualitative difference in the conduct, she
noted.
REPRESENTATIVE BERKOWITZ argued that in terms of the harm to the
community, which is one of the things that is supposed to be
addressed in the criminal code, if a person sends an noxious
substance, that's bad; if a person delivers it, that's bad -
there's a consequence - and if a person makes a false report on
it, it will generate a public response. But if a person
attempts to send or deliver a noxious substance and it is
intercepted, the public harm is minimized. He noted that the
latter is also true regarding a solicitation since a
solicitation without the act itself is an indication that there
was no general harm. A solicitation falls far short of causing
the same kind of harm as a false report, he opined.
Number 0926
MS. CARPENETI opined that a lot of these [actions] can be
distinguished by the facts, and with regard to soliciting or
attempting to send or deliver, it is the potential danger that
is the issue; the possibility that the item will, in fact, be
sent. Whereas with a false report, "only the words are going to
sent."
REPRESENTATIVE COGHILL asked how many cases have been prosecuted
under terroristic threatening versus other types of "verbal
assault".
MS. CARPENETI surmised that it is much more common to prosecute
as "assault four," rather than as terroristic threatening, since
the crime of terroristic threatening is considered a crime
against a large group of people.
REPRESENTATIVE COGHILL noted that causing a serious public
inconvenience, which could happen in a variety of different
ways, is also a crime under terroristic threatening.
MS. CARPENETI assured the committee that all of the elements of
the crime have to be proven beyond a reasonable doubt; "if we're
missing one, we lose everything." In response to questions, she
said that prosecutors have an ethical duty not to bring a charge
unless he/she believes that every element of the case can be
proven beyond a reasonable doubt, and that the provision
regarding causing a serious public inconvenience is currently in
statute under terroristic threatening.
Number 0712
REPRESENTATIVE BERKOWITZ withdrew Amendment 1, adding that if HB
328 and HB 350 are going to be consolidated and then brought
back before the committee, it would give everyone another chance
to discuss any unresolved issues.
Number 0690
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2.
There being no objection, Amendment 2 was adopted.
Number 0680
HEATHER M. NOBREGA, Staff to Representative Rokeberg, House
Judiciary Standing Committee, Alaska State Legislature,
mentioned that there is need for a technical amendment to
Amendment 2. She said that on page 3, line 3, it should say "a
biological or chemical substance or".
Number 0661
CHAIR ROKEBERG, noting that there was no objection to the
technical amendment, stated that Amendment 2, as amended, was
adopted.
CHAIR ROKEBERG noted that according to the criminal mischief
statutes, the crime of criminal mischief in the first degree is
a class B felony, and that HB 328 would make the crime of
damaging an oil or gas pipeline or supporting facility a
separate crime - a class A felony. He mentioned that the Senate
has taken a different approach.
MS. CARPENETI explained that the Senate has proposed that there
be five levels of the crime of criminal mischief as opposed to
the current four levels. She added that there are five levels
of the crime of misconduct involving a weapon, so it is not
unprecedented to have five levels of a crime. In response to
questions, she explained that the rationale the Senate offered
is that it is better public policy and better drafting to work
within the current framework, instead of making this a
[separate] crime. She said that the response to that rationale
is that in terms of record keeping, it is more practical to do
it the way HB 328 proposes.
CHAIR ROKEBERG noted that the Senate has also proposed adding
the crime of tampering with air to the [criminal mischief
statutes]. Chair Rokeberg said that rather than appoint a
subcommittee, he would work with Representative Berkowitz's
office to fine-tune some of these issues. He mentioned that he
has concerns that "we're going to end up with two crimes and one
will be never be used." He announced that HB 328 would be held
over.
ADJOURNMENT
Number 0304
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:45 p.m.
| Document Name | Date/Time | Subjects |
|---|