Legislature(1995 - 1996)
03/27/1996 01:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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
None
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
individuals."
- 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
TITLE)
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)
KELLY,R.Phillips,Leman,Pearce,Green,Donley,Sharp,Salo
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
ineligible.
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
consideration.
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
Alaska.
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
about.
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
prove.
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
moved.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:07 p.m.
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