Legislature(1995 - 1996)

03/27/1996 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 27, 1996                                        
                           1:20 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 MEMBERS ABSENT                                                                
 COMMITTEE CALENDAR                                                            
 CS SENATE BILL 232 (FIN)                                                      
 "An Act relating to permanent fund dividend program notice                    
 requirements to the ineligibility for dividends of individuals                
 convicted of felonies or incarcerated for misdemeanors, and to the            
 determination of the number and identity of certain ineligible                
      - HCSCSSB 232(JUD) PASSED OUT OF COMMITTEE                               
 CS SENATE BILL 194(JUD)                                                       
 "An Act relating to offenses associated with criminal street gangs,           
 and to sentencing for those offenses; relating to the offenses of             
 murder in the second degree, an unclassified felony, misconduct               
 involving weapons in the first degree, a class A felony, and                  
 misconduct involving weapons in the third degree, a class C felony;           
 and amending Rule 702(a), Alaska Rules of Evidence; and providing             
 for an effective date."                                                       
      - CSSB 194(JUD) PASSED OUT OF COMMITTEE                                  
 PREVIOUS ACTION                                                               
 BILL:  SB 232                                                               
 SHORT TITLE: PFD NOTICES AND ELIGIBILITY                                      
 BILL VERSION: CSSB 232(FIN)                                                   
 SPONSOR(S): SENATOR(S) FRANK,Leman,Kelly,Green,R.Phillips,Pearce              
 JRN-DATE     JRN-PG             ACTION                                        
 01/22/96      2198    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/22/96      2199    (S)   FINANCE                                           
 02/15/96              (S)   FIN AT  9:00 AM SENATE FINANCE 532                
 02/15/96              (S)   MINUTE(FIN)                                       
 02/27/96              (S)   FIN AT  9:00 AM SENATE FINANCE 532                
 02/27/96              (S)   MINUTE(FIN)                                       
 03/07/96              (S)   FIN AT  9:00 AM SENATE FINANCE 532                
 03/08/96              (S)   FIN AT  9:00 AM SENATE FINANCE 532                
 03/08/96              (S)   MINUTE(FIN)                                       
 03/08/96      2654    (S)   FIN RPT  CS  6DP    CS FORTHCOMING                
 03/08/96      2655    (S)   FNS TO SB & CS (REV-2, CORR, DPS)                 
 03/08/96      2655    (S)   INDETERMINATE FISCAL NOTES(DPS-2)                 
 03/08/96      2655    (S)   ZERO FISCAL NOTE (LAW)                            
 03/11/96      2685    (S)   FORTHCOMING (FIN)CS RECEIVED (NEW                 
 03/13/96              (S)   RLS AT 11:00 AM FAHRENKAMP RM 203                 
 03/13/96              (S)   MINUTE(RLS)                                       
 03/14/96      2738    (S)   RULES TO CALENDAR AND 2NR    3/14/95              
 03/14/96      2743    (S)   READ THE SECOND TIME                              
 03/14/96      2743    (S)   FIN  CS ADOPTED UNAN CONSENT                      
 03/14/96      2743    (S)   ADVANCE TO THIRD READING FLD Y11 N7 E2            
 03/14/96      2743    (S)   COSPONSOR:  PEARCE                                
 03/14/96      2744    (S)   THIRD READING 3/18 CALENDAR                       
 03/18/96      2782    (S)   READ THE THIRD TIME  CSSB 232(FIN)                
 03/18/96      2782    (S)   PASSED Y18 N- E2                                  
 03/18/96      2786    (S)   TRANSMITTED TO (H)                                
 03/19/96      3191    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/19/96      3191    (H)   JUDICIARY, FINANCE                                
 03/27/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 BILL:  SB 194                                                               
 SHORT TITLE: CRIMES: GANG-RELATED & MISC.                                     
 BILL VERSION: CSSB 194(JUD)                                                   
 SPONSOR(S): SENATOR(S)                                                        
 Taylor,Halford,Frank,Rieger; REPRESENTATIVE(S) B.Davis,Green                  
 JRN-DATE     JRN-PG             ACTION                                        
 12/29/95      2057    (S)   PREFILE RELEASED 12/29/95                         
 01/08/96      2057    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/08/96      2057    (S)   JUDICIARY                                         
 01/12/96      2131    (S)   COSPONSOR(S):  DONLEY                             
 01/17/96              (S)   JUD AT  1:30 PM BELTZ ROOM 211                    
 01/17/96              (S)   MINUTE(JUD)                                       
 01/19/96              (S)   JUD AT  1:30 PM BELTZ ROOM 211                    
 01/19/96              (S)   MINUTE(JUD)                                       
 02/23/96              (S)   JUD AT  4:00 PM ANCHORAGE LIO                     
 02/23/96              (S)   MINUTE(JUD)                                       
 02/28/96              (S)   MINUTE(JUD)                                       
 02/29/96      2597    (S)   JUD RPT  CS  3DP 1NR      NEW TITLE               
 02/29/96      2597    (S)   INDETERMINATE FN TO CS (ADM)                      
 02/29/96      2597    (S)   ZERO FNS TO CS (DPS, HES, LAW, ADM)               
 03/06/96              (S)   RLS AT 12:45 PM FAHRENKAMP RM 203                 
 03/06/96              (S)   MINUTE(RLS)                                       
 03/12/96      2710    (S)   RULES TO CALENDAR  3/12/96                        
 03/12/96      2714    (S)   READ THE SECOND TIME                              
 03/12/96      2714    (S)   JUD  CS ADOPTED UNAN CONSENT                      
 03/12/96      2714    (S)   ADVANCED TO THIRD READING UNAN CONSENT            
 03/12/96      2714    (S)   READ THE THIRD TIME  CSSB 194(JUD)                
 03/12/96      2714    (S)   COSPONSOR(S):  SHARP, SALO, TAYLOR,               
 03/12/96      2714    (S)   HALFORD, FRANK, RIEGER                            
 03/12/96      2715    (S)   PASSED Y18 N- E2                                  
 03/12/96      2715    (S)   EFFECTIVE DATE(S) SAME AS PASSAGE                 
 03/12/96      2715    (S)   COURT RULE(S) SAME AS PASSAGE                     
 03/12/96      2720    (S)   TRANSMITTED TO (H)                                
 03/13/96      3107    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/13/96      3107    (H)   JUDICIARY                                         
 03/27/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 03/27/96      3423    (H)   CROSS SPONSOR(S): B.DAVIS                         
 WITNESS REGISTER                                                              
 TOM WILLIAMS, Staff                                                           
 Senator Steve Frank                                                           
 Alaska State Legislature                                                      
 State Capitol, Room 518                                                       
 Juneau, Alaska  99801-1182                                                    
 Telephone:  (907) 465-3709                                                    
 POSITION STATEMENT:  Testified on SB 232                                      
 TAMARA COOK, Director                                                         
 Legislative Legal and Research Services                                       
 130 Seward Street, Suite 409                                                  
 Juneau, Alaska  99801-2105                                                    
 Telephone:  (907) 465-2450                                                    
 POSITION STATEMENT:  Testified on SB 232                                      
 ANNE D. CARPENETI, Assistant Attorney General                                 
 Criminal Division, Department of Law                                          
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Testified on SB 232 & SB 194                             
 NANCI JONES, Director                                                         
 Permanent Fund Dividend Division                                              
 Department of Revenue                                                         
 P.O. Box 110460                                                               
 Juneau, Alaska  99811-0460                                                    
 Telephone:  (907) 465-2323                                                    
 POSITION STATEMENT:  Testified on SB 232                                      
 SHERMAN ERNOUF, Staff                                                         
 Senator Tim Kelly                                                             
 State Capitol, Room 101                                                       
 Juneau, Alaska  99801-1182                                                    
 Telephone:  (907) 465-3822                                                    
 POSITION STATEMENT:  Testified on SB 194                                      
 ACTION NARRATIVE                                                              
 TAPE 96-44, SIDE A                                                            
 Number 042                                                                    
 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting            
 to order at 1:20 p.m.  Members present at the call to order were              
 Representatives Green, Bunde, Vezey, Davis and Finkelstein.                   
 Representative Toohey arrived at 1:24 p.m.                                    
 SB 232 - PFD NOTICES AND ELIGIBILITY                                        
 Number 160                                                                    
 TOM WILLIAMS, Staff to Senator Frank came before the committee to             
 present information on SB 232.  Senator Frank is the prime sponsor            
 to this legislation.  He noted that this legislation has been                 
 proposed three times.  Two years ago it was introduced and passed             
 the senate, but it did not move through the house.  Last year, in             
 a slightly different form as SB 135, this legislation passed both             
 bodies, but was vetoed by the governor.  SB 135 had a provision               
 which made some timing changes in regards to when an individual               
 would be denied a PFD and then when the money denied could be                 
 reappropriated.  These were the sections which the governor                   
 objected to in his veto message, so they were deleted from this               
 bill, SB 232.                                                                 
 MR. WILLIAMS went on to note that SB 232 expands the pool of                  
 criminals who will become ineligible for dividends.  It expands the           
 agencies for which these denied dividends can be used.  It defines            
 clearly the purposes for which those dividends can be used.  It               
 also requires some increased notice of the fact that the state is             
 denying criminal's dividends and using these monies to fund the               
 criminal justice system, it would help to defray costs.  SB 232               
 passed the senate with a vote of 18 to zero.  They have addressed             
 several concerns which the administration raised.  "One concern               
 that we have not addressed is, there has been some concern that by            
 denying dividends to an expanded pool that, that somehow the                  
 attachment, the pool of dividends to be attached by various                   
 agencies, especially CSED, declines.  While that is true the effect           
 is rather negligible and in addition the debt does not go away, it            
 simply, (indisc. - paper shuffling) debt against the individual               
 who's no longer eligible for a dividend doesn't go away it just               
 delays when they can collect their debt."                                     
 MR. WILLIAMS estimated that there will be approximately 2,000                 
 additional individuals who would be denied a dividend ultimately.             
 This was a Department of Law estimate.  Effectively, they avoid any           
 ex post facto problems by only considering convictions related to             
 misdemeanors and felonies which occur after January 1, 1997.  This            
 denies individuals based on prospective actions, rather than                  
 retroactively.  Additional funds would not be available until the             
 year 2000.                                                                    
 Number 425                                                                    
 REPRESENTATIVE CON BUNDE asked that under the misdemeanors                    
 convictions which occur after January 1, 1997, would a third                  
 misdemeanor have to occur then or would all three have to occur               
 after this time.                                                              
 MR. WILLIAMS stated that all three would have to occur after                  
 January 1, 1996.                                                              
 REPRESENTATIVE BUNDE asked about the dividends which are held and             
 then disbursed to the various agencies listed, are there any                  
 concerns about dedicated funds in this application.                           
 MR. WILLIAMS noted that as a practical matter the individual is               
 denied a dividend and the subsequent year the monies are                      
 appropriated from the available dividend fund, so there is no one             
 to one linkage in regards to a dedication.  It just says what can             
 be appropriated out of the dividend fund, plus in the Anthony v.             
 State decision which challenged the whole felony issue whether or            
 not there could be a denial, the court relied on the fact that                
 there was a good use of the money for finding it was constitutional           
 to deny felons in the first place.  This nexus has been addressed.            
 Number 529                                                                    
 REPRESENTATIVE BUNDE asked in the broadest terms that this is                 
 spending the earnings of the permanent fund.                                  
 MR. WILLIAMS offered that he would not say that, he would say that            
 what it is doing is spending the money which would have otherwise             
 been paid to criminals had they had this provision available.                 
 Number 566                                                                    
 REPRESENTATIVE AL VEZEY stated that he looked upon this legislation           
 as a form of garnishment.                                                     
 MR. WILLIAMS stated that this was a reasonable analogy.  This was             
 the means set up to take these dividends.                                     
 Number 580                                                                    
 REPRESENTATIVE GREEN asked what would happen to incarcerates who              
 are sent out of state and because of this they don't qualify.                 
 MR. WILLIAMS stated that an individual would have had otherwise               
 been eligible for their dividend to be available for                          
 reappropriation to the criminal justice system.  If an individual             
 goes out of state and they would have been eligible under the                 
 custody of the state, this is an allowable absence.  If someone is            
 in the custody of the state they would be eligible.                           
 Number 638                                                                    
 REPRESENTATIVE VEZEY noted that he didn't think this bill addressed           
 felons and Alaska only sends felons out of state, correct.                    
 MR. WILLIAMS said that this legislation did address felons and                
 misdemeanants.  Current law (and in the packet there is a side-by-            
 side comparison of the individuals ineligible) says that if someone           
 is incarcerated for a felony conviction during any part of the                
 qualifying year, the person is ineligible.  This is what current              
 law does and this would relate to this (indisc. - paper shuffling)            
 sent out of state.  SB 232 retains this provision and adds to it if           
 someone is simply convicted of a felony in the year they were                 
 convicted, this makes someone ineligible.  If someone was                     
 incarcerated for a third misdemeanor, this would also make someone            
 ineligible.  In regards to sending someone out of the state, the              
 additional pool doesn't relate to this situation, but it relates to           
 what they are attempting to do right now.                                     
 Number 712                                                                    
 CHAIRMAN PORTER asked if Mr. Williams could outline what the law              
 would be with this bill and what is now in relation to felons.                
 MR. WILLIAMS stated that in regards to felons under current law the           
 person must have been incarcerated for a felony conviction to be              
 ineligible.  Under SB 232 the person must have been incarcerated              
 for a felony conviction or convicted.  The person would be                    
 ineligible in the year they are convicted.  In other words, if the            
 person is convicted of a felony, it doesn't mean they're forever              
 Number 768                                                                    
 CHAIRMAN PORTER asked about prospective misdemeanor convictions as            
 provided for being unconstitutional.                                          
 MR. WILLIAMS noted that in regards to ex post facto issues, the               
 safest approach was to simply count things which happen                       
 prospectively as opposed to running a legal challenge.                        
 CHAIRMAN PORTER responded that they had just had this discussion at           
 length regarding a bill passed last year on a third time Driving              
 While Intoxicated (DWI) charge.  They were convinced in relation to           
 this legislation that prior convictions were eligible for                     
 MR. WILLIAMS deferred to Tam Cook regarding this issue.                       
 Number 820                                                                    
 REPRESENTATIVE BUNDE asked Mr. Williams to walk them through the              
 fiscal notes and asked him what the net gain would be.                        
 MR. WILLIAMS stated that the Department of Corrections reflects the           
 largest fiscal note with a total of $68,000.  This fiscal note                
 pertains to improving their ability to identify individuals who               
 meet the criteria.  The way this works now under current law, since           
 only incarcerated felons are recognized, they submit these names to           
 the Permanent Fund Dividend (PFD) Division.  If a name of an                  
 individual sent to this division is incorrect and the individual is           
 denied a dividend and challenges this denial then the PFD Division            
 and the Department of Corrections try to work this out.  The                  
 Department of Corrections has advised them that they need to update           
 their computer systems to enhance coordination with the Department            
 of Public Safety and with the Department of Law, as well as, and              
 the courts to improve the reliability of their lists provided.                
 MR. WILLIAMS noted that in regards to timing, no additional monies            
 will be available for appropriation until the fiscal year 2000,               
 simply because of various (indisc.)  He referenced a brief schedule           
 which highlights this in the committee member's packets.  In                  
 regards to a number of 2000 people being ineligible as noted,                 
 ultimately at a $1000 a dividend this translates to $2 million                
 starting in fiscal year 2000.  He mentioned in current law $2.4               
 million which is presently available.                                         
 Number 1005                                                                   
 CHAIRMAN PORTER asked about picking up a new category of felons               
 which were convicted, but not sentenced, why would they not be                
 picking up money next year if this law went into effect.                      
 MR. WILLIAMS stated that this was due to a delay from when an                 
 individual is denied to when the money can be appropriated.  They             
 attempted to move up this lag in last year's legislation and it was           
 dubbed as a "double dip."  The governor objected to this.  Again,             
 he referenced a document in the packets which outlines this lag               
 period concept.  The qualifying year for people who would be                  
 ineligible would start in 1997.  This means these individuals would           
 be denied their dividends in 1998.  This 1998 dividend is paid in             
 fiscal year 1999.  The next appropriation cycle for this money is             
 then fiscal year 2000.                                                        
 Number 1075                                                                   
 REPRESENTATIVE VEZEY asked if it was highly unlikely that someone             
 would accumulate three misdemeanant convictions in 1997, hence for            
 these individuals the permanent fund money would be available more            
 likely starting in 2001.                                                      
 MR. WILLIAMS said that this was correct.  He also noted that                  
 currently the incarcerated felon's dividends are being taken.  This           
 new legislation allows for taking dividends from individuals who              
 are convicted, but not incarcerated.                                          
 Number 1132                                                                   
 REPRESENTATIVE TOOHEY noted that until this money is collected in             
 the year 2000, the state will have spent $320,000 to get the                  
 program up and running.  She stated that this was a lot of money              
 and she also pointed out that this was just one of the fiscal notes           
 affecting this legislation.                                                   
 Number 1160                                                                   
 TAMARA COOK, Director, Legislative Legal and Research Services,               
 responded to the question posed about a legal prohibition against             
 considering the past convictions of an individual rather than                 
 future convictions for a three time misdemeanant.  She stated that            
 she was not an expert on criminal law, but it was her opinion that            
 this bill was taking the most conservative approach on this issue.            
 She thought that there would probably be a problem if the third               
 misdemeanor was not committed after the effective date.  As far as            
 considering prior convictions, she thought that it was very likely            
 that this would be upheld if this approach is taken.                          
 Number 1241                                                                   
 ANNE CARPENETI, Assistant Attorney General, Criminal Division,                
 Department of Law stated that Ms. Cook's statement was correct,               
 that retroactively this can be done and this was what they did in             
 the past with the felony DWI legislation which Chairman Porter had            
 referenced.  She stated that she'd like to reread this legislation            
 to make sure, but that was her recollection.  Quite a few cases               
 have been brought under this felony DWI law and there have not been           
 any problems related to it's retroactivity nature.                            
 Number 1300                                                                   
 NANCI JONES, Director, Permanent Fund Dividend Division, Department           
 of Revenue stated that the governor's office does not have any                
 opposition to this bill.  There were some concerns which they've              
 worked out with Senator Frank's office, but there remains some                
 concerns about the overall expansion of the pool of the class of              
 ineligibles.  The expansion of the recipients to receive these                
 monies and people within specific departments who have been                   
 currently funded from this pool have become nervous and anxious               
 thinking that their funds will be reduced, since this legislation             
 would add more people in the pool to receive these funds.  A                  
 certain amount of this money is already collected for the                     
 Department of Law to pay for criminal fines and such.  As this pool           
 expands there will be less dividends available to garnish.  Since             
 the estimation of individuals that this legislation will affect by            
 the year 2000, she stated that it's hard to put a finger on how               
 much money will be lost.  Overall, the governor's office is not               
 opposed to this bill.                                                         
 Number 1387                                                                   
 REPRESENTATIVE BUNDE clarified that this legislation will bring in            
 more money into the pool, but Ms. Jones was saying that money will            
 be lost because it will be disbursed into more pockets.                       
 MS. JONES said yes, exactly.                                                  
 Number 1397                                                                   
 REPRESENTATIVE GREEN stated that currently if a felon gives up                
 their right to their PFD once they're incarcerated, he asked what             
 would happen with a felon next year or when this legislation                  
 becomes effective, but they are not incarcerated and the PFD is               
 taken through this bill, and then because of other circumstances              
 they do become incarcerated for the next year, does this person               
 stay with this funding under SB 232 or do they switch over to the             
 group as established prior to this legislation.                               
 MS. JONES answered that the way this system currently works if                
 someone is incarcerated as a result of a felony conviction within             
 the qualifying year, then this person is not eligible to receive a            
 dividend.  This same program would be expanded to persons who are             
 incarcerated, as well as persons who are convicted of a felony                
 within this qualifying year or who commit a third misdemeanor                 
 within the qualifying year.  This would all come under the same               
 pot.  In the next year, if this person was release from jail, they            
 are no longer in this group.                                                  
 REPRESENTATIVE GREEN asked if someone is incarcerated in this next            
 year would they fall under "the felon without this bill right now"            
 or would they follow what this legislation requires.                          
 MS. JONES answered that this person would fall under the current              
 program if they are incarcerated.  If they were released and they             
 go back to jail they would go back to the same program again, they            
 would be in the same pool.                                                    
 Number 1479                                                                   
 CHAIRMAN PORTER stated that if an individual is convicted this next           
 year and they are given probation, next year they would fall under            
 the new provision.  The following year, this same person violates             
 probation and is thrown in jail they would lose their PFD also.               
 MS. JONES said that this was correct.  She noted that if this bill            
 passes it changes the playing field.  There would only be one                 
 avenue for disbursements.  This legislation would override the                
 present system.                                                               
 Number 1575                                                                   
 MS. CARPENETI stated that she echoed all of Ms. Jones' comments.              
 The criminal division is concerned about the situation which Mr.              
 Williams mentioned which dealt with people who are victims of crime           
 and wouldn't otherwise be eligible under violent crimes                       
 compensation and would lose this source of money to garnish for               
 restitution.  This is a concern to them and they've been unable to            
 come up with a solution to this problem that would pass                       
 constitutional muster.                                                        
 REPRESENTATIVE BUNDE asked if the convicted misdemeanant doesn't              
 apply for their PFD, the victim wouldn't have an opportunity for              
 compensation anyway.  Under this program these individuals would              
 not have to apply.  The state will still take the money.                      
 MS. CARPENETI said that this was correct.                                     
 Number 1638                                                                   
 CHAIRMAN PORTER noted that victims are potential taxpayers like               
 anyone and the state is putting money in the general fund.  This              
 would offset costs they might have down the road.                             
 MS. CARPENETI mentioned a minor point on page 2, line 20 which she            
 brought up out of total excess of caution.  She stated that she               
 would remove paragraph 1 after subsection (d), so that when the               
 legislation speaks to the date of conviction, this date would be              
 for AS 43.23.005 (d) (1) and (2).  She knew that paragraph 1                  
 applies to people convicted of felonies, but she didn't think it              
 hurt anything to make this apply to all of (d), because under                 
 paragraph (2) they were talking about people incarcerated after               
 being convicted.  She said that this might be an excess of caution,           
 but she suggested that it might avoid any possible problems                   
 resulting from terms used in the bill.                                        
 MS. CARPENETI noted that this section dealt with the date of                  
 conviction as to the time of sentencing and this makes it clear               
 what date would be considered when applying this law for people               
 convicted of a felony.  She suggested that they make this apply to            
 both paragraph (1) and (2), although the term conviction isn't used           
 for people incarcerated of a felony or a third misdemeanor.  She              
 stated that it wouldn't hurt to have this definition apply to both            
 (d) (1) and (2).                                                              
 MS. CARPENETI responded to Representative Toohey's concern about              
 the victims of violent crime compensation issue discussed                     
 previously.  She noted that money from these people who are denied            
 a PFD does goes to violent crimes compensation, but this only                 
 covers certain offenses under certain circumstances.  She added               
 that there doesn't seem to be any solution which would speak to               
 this problem.                                                                 
 Number 1845                                                                   
 CHAIRMAN PORTER asked Mr. Williams if they would be adverse to                
 changing the bill to allow for prior misdemeanors to be considered            
 within the three misdemeanor rule allowed in this legislation.                
 MR. WILLIAMS answered that he didn't think Senator Frank would be             
 adverse to this at all.  He felt as though the biggest concern was            
 that they wanted to minimize the chance of a legal challenge with             
 this sort of legislation.                                                     
 CHAIRMAN PORTER again added that this was the way in which the                
 felony DWI bill was drafted, that the conviction for which "in this           
 case this bill begins to be a consideration of a felony becomes a             
 consideration of the other one has to be after the fact of the                
 passage of the bill," but if the consideration of previous                    
 convictions that are supplemental, these can be before.                       
 MR. WILLIAMS acknowledged that this would increase the pool faster            
 and as long as there are no constitutional problems with it he felt           
 as though the senator would not object.                                       
 Number 1906                                                                   
 REPRESENTATIVE BUNDE made a motion to pass a conceptual amendment             
 to address this issue, to allow in the area of the three                      
 misdemeanor convictions two of three to be prior to the passage of            
 the bill, but leaving in place the requirement that the third or              
 subsequent to be after the effective date of the bill.  This would            
 amend Section 6 on page 5, beginning with line 15 which currently             
 says, "convictions for offenses committed before January 1, may not           
 be considered in determining a number of prior convictions for the            
 purposes of applying this..."                                                 
 Number 1970                                                                   
 REPRESENTATIVE GREEN asked if this implied that the prior                     
 convictions could be convictions from outside the state of Alaska             
 or inside.                                                                    
 MR. WILLIAMS said that the bill did not address whether these                 
 convictions would be inside or outside of the state.  It is silent            
 as to this, but the presumption would be that this legislation                
 would apply to any misdemeanor conviction.                                    
 CHAIRMAN PORTER stated that he would not be opposed as a friendly             
 amendment to the conceptual amendment as stated, to incorporate               
 language which would make this clear.  He noted that this clause              
 shouldn't cause any great burden.                                             
 Number 2006                                                                   
 CHAIRMAN PORTER again outlined this conceptual amendment to include           
 the precept to allow consideration of out of state convictions for            
 prior convictions and two, to allow prior convictions prior to the            
 effective date for the first two convictions, and that the third or           
 subsequent conviction be after the effective date in the area of              
 misdemeanors as it relates to Section 6.  There being no objection            
 to this conceptual amendment, it was so moved.                                
 Number 2036                                                                   
 MS. COOK asked for clarification as to the out of state offenses              
 that occur which are to be included in this contraction now, were             
 they talking about offenses that if they were to take place in                
 Alaska the elements of which would constitute a misdemeanor in                
 CHAIRMAN PORTER said that yes, exactly, and instructed Ms. Cook to            
 reference the DWI law which he had already mentioned.                         
 Number 2066                                                                   
 REPRESENTATIVE GREEN made a motion to move CSSB 232 (JUD) as                  
 amended with individual recommendations and attached fiscal notes.            
 There being no objection, it was so moved.                                    
 SB 194 - CRIMES: GANG-RELATED & MISC.                                       
 Number 2155                                                                   
 SHERMAN ERNOUF, Staff to Senator Tim Kelly, testified that SB 194             
 was introduced in response to rapid escalation of violent gang                
 activity throughout Alaska.  He noted the amount of gang related              
 violence this past year and previous.  In 1995, there were more               
 than four gang-related murders committed in Anchorage, as well as,            
 numerous gang-related hold-ups and drive by shootings, and other              
 criminal activities by gangs.  Present intelligence from the                  
 Anchorage Police Department notes that there are over 463 gang                
 members active in Anchorage.  The central purpose behind this bill            
 is to give law enforcement and prosecutors the tools that they                
 desperately need to deal with the increased presence of gangs in              
 Alaska.  This committee substitute now before the House Judiciary             
 Committee represents quite a bit of work between the attorney                 
 general's office, enforcement officials and Senator Tim Kelly.                
 MR. ERNOUF went on to note that this legislation does six major               
 things, first, it amends the crime of second degree murder to                 
 include a felony murder provision for a death resulting from a drug           
 offense or gang-related shooting.  Currently, if a by-stander is              
 shot in a shoot-out between two drug dealers attempting to complete           
 a drug deal, for example, or in a crime committed by a gang or                
 gangs, the shooter can claim that they were firing in self-defense.           
 This provision would eliminate a claim of self-defense when an                
 innocent by-stander is injured and would hold drug dealers and                
 gangs accountable for their dangerous behavior.                               
 MR. ERNOUF stated that secondly, this legislation creates a new               
 specific crime of recruiting a gang member.  It enumerates a crime            
 if a person uses or threatens to use force against a person or                
 property to induce someone to participate in a criminal street gang           
 or commit gang violence.  This crime would constitute a class C               
 felony.  Further, this crime would be extended to recruitment                 
 without force by a person eighteen years of age or older who                  
 encourages a younger person under the age of eighteen to                      
 participate in a gang.  This would be recruitment in the second               
 degree and this would constitute a class A misdemeanor.                       
 MR. ERNOUF continued that thirdly, this legislation elevates the              
 crime of weapons misconduct which is applicable to drive-by                   
 shootings and elevates this to a class A felony punishable by five            
 to ten years in prison.  Further, to add teeth to the bill, it                
 allows for expert testimony relating to criminal street gang                  
 activity.  Currently, it is very hard to get evidence before the              
 court regarding the activities of gangs.  This section of the bill            
 would allow testimony to show gang affiliations, gang customs,                
 rivalries and other characteristics of gangs which would be                   
 necessary to implement some of the things in the bill. This was               
 requested by numerous people involved.                                        
 MR. ERNOUF further stated that a forfeiture provision has been                
 included in this legislation which provides for forfeiture to state           
 of motor vehicles, weapons, electronic communication devises,                 
 money, valuables or any other personal property obtained through an           
 offense which was committed for the benefit of, at the direction or           
 in association with a criminal street gang.  Lastly, the one major            
 point he wanted to make was that this legislation allows and would            
 provide gang membership to be considered as an aggravator during              
 sentencing for felonies.  It would also elevate misdemeanors                  
 committed for the benefit of, at the direction of, or in                      
 association with a criminal street gang.  For example, if a gang              
 committed a B misdemeanor this would elevate this to an A                     
 misdemeanor.   Similarly, if they committed an A misdemeanor, this            
 would be elevated to a class C felony during sentencing.                      
 MR. ERNOUF added that this legislation has been endorsed by the               
 Peace Officers Association.  He also noted that he didn't know of             
 anyone who opposes this bill in it's current form.                            
 Number 2359                                                                   
 REPRESENTATIVE BUNDE asked about weapons misconduct and asked if              
 there were varying degrees of this offense.                                   
 MS. CARPENETI stated that yes, the law presently has four degrees             
 (indisc. - documents on microphone).  This adds to misconduct                 
 involving weapons in the first degree drive-by shootings under                
 circumstances manifesting the substantial and justifiable risk of             
 physical injury to a person or damage to property.  She would make            
 just one minor correction, it is an A felony which has a maximum of           
 20 years of incarceration, not 10.                                            
 Number 2400                                                                   
 REPRESENTATIVE TOOHEY stated that she didn't understand what the              
 purpose of 13 fiscal notes attached to this legislation was all               
 Number 2443                                                                   
 REPRESENTATIVE BETTYE DAVIS asked if the Attorney General's office            
 is saying that this bill was actually going to do something,                  
 because she read in the notation that they had some concerns and              
 they didn't think it was going to do anything, anyway.  She asked             
 if this bill was on line now, that it will do something and the               
 Department of Law has removed the objection to this bill.                     
 MS. CARPENETI stated that she had testified in Senate Judiciary on            
 the original bill and they had serious reservations about a section           
 prohibiting participation in criminal street gangs and it was their           
 view and still is that the difficulty of proving this was not                 
 justified by the C felony which they ended up with.  If the                   
 elements in this offense had to be proved they would be better off            
 and they would be able to prove accomplish liability and get a                
 higher level of offense, for example, an accomplice to robbery if             
 they had to prove all these various things which are difficult to             
 TAPE 96-44, SIDE B                                                            
 Number 006                                                                    
 REPRESENTATIVE DAVIS made a motion to move CSSB 194(JUD) from the             
 House Judiciary Committee with individual recommendations and                 
 attached 14 zero fiscal notes.  There being no objection it was so            
 CHAIRMAN PORTER adjourned the meeting at 2:07 p.m.                            

Document Name Date/Time Subjects