02/07/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB88 | |
| HB41 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 88 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 7, 2005
1:08 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 88
"An Act relating to certain weapons offenses involving minors;
to aggravating factors in sentencing for certain offenses
committed against a school employee; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 41
"An Act relating to minimum periods of imprisonment for the
crime of assault in the fourth degree committed against an
employee of an elementary, junior high, or secondary school who
was engaged in the performance of school duties at the time of
the assault."
- MOVED CSHB 41(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 88
SHORT TITLE: OFFENSES BY MINORS/AGAINST TEACHERS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/19/05 (H) READ THE FIRST TIME - REFERRALS
01/19/05 (H) JUD, FIN
01/26/05 (H) JUD AT 1:00 PM CAPITOL 120
01/26/05 (H) -- Meeting Canceled --
02/02/05 (H) JUD AT 1:00 PM CAPITOL 120
02/02/05 (H) <Bill Hearing Postponed to 2/4/05>
02/04/05 (H) JUD AT 1:00 PM CAPITOL 120
02/04/05 (H) <Bill Hearing Postponed to 2/7/05>
02/07/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 41
SHORT TITLE: ASSAULT ON SCHOOL EMPLOYEES
SPONSOR(S): REPRESENTATIVE(S) LYNN, MCGUIRE
01/10/05 (H) PREFILE RELEASED 12/30/04
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) JUD, FIN
01/19/05 (H) JUD AT 1:00 PM CAPITOL 120
01/19/05 (H) Heard & Held
01/19/05 (H) MINUTE(JUD)
01/26/05 (H) JUD AT 1:00 PM CAPITOL 120
01/26/05 (H) -- Meeting Canceled --
02/02/05 (H) JUD AT 1:00 PM CAPITOL 120
02/02/05 (H) <Bill Hearing Postponed to 2/4/05>
02/04/05 (H) JUD AT 1:00 PM CAPITOL 120
02/04/05 (H) <Bill Hearing Postponed to 2/7/05>
02/07/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 88 on behalf of the
administration and responded to questions; responded to a
question during discussion of HB 41.
PATTY WARE, Director
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 88.
GARDNER COBB, Lieutenant
Patrol Commander
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 88 and responded
to a comment; provided comments during discussion of HB 41 and
asked the committee to pass the bill with a minimum mandatory
sentence.
JAMES S. "STEVE" LYONS, Detective
Robbery/Assault
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
88 and responded to questions.
LEONARD M. "BOB" LINTON, JR., District Attorney
Third Judicial District (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
88 and responded to questions.
STEPHEN BRANCHFLOWER, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 88.
DEBRA MEISTER
Anchorage, Alaska
POSITION STATEMENT: Speaking as a parent, provided comments
during discussion of HB 41.
MARY A. FRANCIS, Executive Director
Alaska Council of School Administrators (ACSA)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
41.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 41.
TOM HARVEY, Executive Director
NEA-Alaska (National Education Association, Alaska branch)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 41, responded to
questions and suggested a change.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:08:26 PM. Representatives
McGuire, Anderson, Coghill, Dahlstrom, and Gruenberg were
present at the call to order. Representative Gara arrived as
the meeting was in progress. Representative Kott had previously
been excused.
HB 88 - OFFENSES BY MINORS/AGAINST TEACHERS
[Contains discussion of HB 41.]
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 88, "An Act relating to certain weapons
offenses involving minors; to aggravating factors in sentencing
for certain offenses committed against a school employee; and
providing for an effective date."
CHAIR McGUIRE noted that both HB 41 and HB 88 address the issue
of assaults on school employees, but HB 88 does so via an
aggravator - which, she surmised, would not comport with the
U.S. Supreme Court case, Blakely v. Washington, 124 S. Ct. 2531
(U.S., 2004) - and also addresses the issue of offenses by
minors. She expressed a preference for considering HB 41 as the
vehicle and then perhaps rolling into it the part of HB 88 that
addresses offenses by minors.
1:11:14 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
relayed that the administration has introduced HB 88 for reasons
similar to those of the sponsor of HB 41 - that being a serious
concern about violence among youth and at school. She noted
that the findings section of HB 88 makes reference to, and
includes statistics from, surveys conducted by the Department of
Health and Social Services (DHSS) and the Anchorage School
District (ASD). She opined that the most disheartening of the
statistics used are the ones that say 13 percent of students
responding to the ASD survey reported feeling unsafe at school,
and that this figure is more than double the national average.
MS. CARPENETI relayed that police have said that not only is
violence in school a problem, but that "gun violence" among
Alaskan youth is a serious problem. She said that she does not
believe that the aggravating factor in HB 88 would violate
Blakely; instead, the aggravating factor will just have to be
proven differently than is currently done. She explained that
HB 88 does two things: it adopts an aggravated sentencing
factor for crimes against a person - crimes located in AS 11.41,
which include assault, homicide, sexual assault, sexual abuse of
a minor, kidnapping, and related offenses - when those crimes
are knowingly directed at an employee of a school; and it
provides for an automatic waiver into adult court for minors who
are at least 16 years of age and who commit the crime of
misconduct involving weapons in the first degree - a class A
felony - or in the second degree - a class B felony - in
violation of AS 11.61.190 or 11.61.195, which pertain in part to
drive-by shootings and drug-related crimes involving firearms.
1:14:44 PM
MS. CARPENETI, in response to questions, said that the only
crimes that HB 88 proposes for inclusion in the automatic waiver
provision of law are those involving firearms, and indicated
that forthcoming testimony by police will show that the
commission of such crimes by 16- and 17-year-olds constitutes a
really serious problem, particularly in Anchorage.
REPRESENTATIVE GRUENBERG asked whether there are any
constitutional limits on what crimes a minor can be waived into
adult court for.
MS. CARPENETI said she is not aware of any, but would be willing
to research the issue further.
REPRESENTATIVE GRUENBERG asked that the results of that research
be in writing.
REPRESENTATIVE DAHLSTROM said she has seen many studies
indicating that crimes involving knives are more violent and
bizarre than those involving firearms, and asked why such crimes
were not included in the waiver provision of HB 88.
MS. CARPENETI said that the DOL and the DHSS have been cautious
whenever suggesting the institution of an automatic waiver -
limiting such waivers to only those 16 years of age and older,
and to only the most serious of crimes - and so have chosen to
have HB 88 propose a waiver only for those crimes involving
firearms that have the potential to harm a person. She
explained that crimes involving knives constitute the crime of
misconduct involving weapons in the third degree, a class C
felony, and that presently there are not any class C felonies
being automatically waived into adult court, though minors
committing such crimes could still be subject to discretionary
waiver.
REPRESENTATIVE GARA offered his understanding of how
discretionary waivers are currently utilized and where juveniles
that have been waived to adult court serve their sentences, and
asked for more information.
1:20:56 PM
PATTY WARE, Director, Division of Juvenile Justice (DJJ),
Department of Health & Social Services (DHSS), said that
juveniles that have been adjudicated without being waived into
adult court get to serve their sentences in facilities run by
the DHSS, or might by placed under formal probation supervision,
and thus get to continue with school activities; juveniles that
have been waived into adult court, however, serve their
sentences in facilities run by the Department of Corrections
(DOC). So the question becomes one of whether a particular
crime is addressed in the juvenile system versus the adult
system. She relayed that part of the DJJ's agency mission is to
hold juvenile offenders accountable for their behavior;
regardless of how that occurs, the DJJ's probation officers take
that responsibility very seriously, and so in addition to
supervising and monitoring the DJJ's juvenile offenders,
treatment services are provided - the goal being to prevent
juveniles from proceeding into the adult criminal system.
1:22:32 PM
REPRESENTATIVE GARA said that to the extent that a child is
redeemable, he would prefer that the child be incarcerated with
other children where he/she can continue with schooling, rather
than with adults where such educational opportunities might not
exist.
MS. WARE concurred, but noted that the DOC does have facilities
wherein juveniles incarcerated via the adult system are kept
separate and do have educational opportunities. She
characterized the proposed waiver as fairly narrow and as a
policy call.
MS. CARPENETI offered her belief that juvenile offenders
incarcerated in adult facilities are segregated from adults, but
offered to research the issue further.
1:25:01 PM
CHAIR McGUIRE posited that the policy behind the change proposed
to the current waiver provision is to send a message that
violence involving guns will not be tolerated regardless of a
person's age, but acknowledged that a goal of the juvenile
justice system (JJS) is to ensure that redeemable juveniles are
rehabilitated so that they may come back into society. She
suggested that the question is whether they are furthering that
goal by putting a young person in a place where he/she may "end
up just getting worse."
MS. CARPENETI opined that the offenders that would be subject to
the proposed waiver are pretty serious offenders. In response
to an earlier question, she noted that a judge will waive a
juvenile to adult court under the discretionary waiver provision
of current law if he/she feels that the juvenile cannot be
rehabilitated by age 20. She also noted that in cases involving
crimes other than unclassified and class A felonies, the state
has the burden of proving by a preponderance of the evidence
that a juvenile should be waived into adult court; in cases
involving unclassified and class A felonies, the burden switches
to the juvenile and there is a presumption of the juvenile's
inability to be rehabilitated by age 20.
1:26:47 PM
REPRESENTATIVE GRUENBERG declared a conflict of interest, and
asked to be excused from voting.
CHAIR McGUIRE objected, and asked Representative Gruenberg to
vote on any motions requiring a roll call vote.
REPRESENTATIVE GRUENBERG asked whether, in light of Blakely, the
DOL sees any potential constitutional problems with the
aforementioned preponderance of the evidence standard.
MS. CARPENETI said she has not seen any decisions in that regard
pertaining to waiver issues.
REPRESENTATIVE GRUENBERG asked Ms. Carpeneti to research the
issue further and provide the results in writing. He also asked
whether Alaska has something similar to the federal "youthful
offender" Act, which, he suggested, allows judges to consider
sentences that might be considered appropriate for youthful
offenders, particularly those without any criminal history, and
whether instituting similar laws might be beneficial to Alaska;
he asked that the results of any research on this issue also be
in writing.
MS. CARPENETI noted that although Alaska statutes do not
currently have anything specifically called a youthful offender
Act, there are statutes that pertain to first time offenders of
less serious crimes.
REPRESENTATIVE GRUENBERG indicated that he would like to provide
the state with as many options as possible to allow judges to
"deal with the individual offender and the individual case."
1:30:34 PM
REPRESENTATIVE GARA asked whether there is evidence that the
current discretionary waiver provision is not being used
correctly. Is there evidence that judges are not granting
waivers into adult court for people who are irredeemable?
MS. CARPENETI said she would hesitate to say that judges are
abusing their discretion, but noted that historically, it has
been tremendously difficult to convince judges to
discretionarily waive juveniles into adult court. That is why,
she surmised, that the legislature initially took the tact of
instituting mandatory waivers for certain juveniles committing
certain crimes. She remarked that it is really difficult to
establish an inability to be redeemed, and so the state
generally just makes use of the automatic waiver provision and
doesn't often ask for a discretionary waiver, which are rarely
granted.
1:33:32 PM
GARDNER COBB, Lieutenant, Patrol Commander, Anchorage Police
Department (APD), Municipality of Anchorage (MOA), relayed that
he is the administrator of the School Resource Officer (SRO)
program, is in charge of the APD's "Intel Unit" - the main
purpose of which is to track Anchorage's youth gangs - and is a
Special Weapons and Tactics (SWAT) commander. He relayed that
he is in support of HB 88, provided a few examples of crimes
involving youths with weapons, and noted that there have been
several high-profile homicides, both this year and last year.
Although the main goal of the juvenile justice system is to
rehabilitate juveniles, that goal must be balanced with
protecting the public, he concluded.
1:35:34 PM
JAMES S. "STEVE" LYONS, Detective, Robbery/Assault, Anchorage
Police Department (APD), Municipality of Anchorage (MOA),
relayed that the APD's robbery/assault unit mainly investigates
crimes of robbery and assault - the majority of which involve
weapons, mostly guns - and gang-related activities. He said he
agrees with the concept of rehabilitation, but personal
experience has shown him that juveniles who have chosen to
settle their differences with guns have elevated to that level
of behavior over a period of time - they didn't start out with
guns, but for whatever reason, that's where their lives have
taken them. He relayed that the APD receives 15-20 "shots
fired" calls every month, the majority of which involve drive-by
shootings.
MR. LYONS offered:
With these type of shootings, these kids who've piled
into these cars to go resolve these differences with
their guns have no regard for where this is going to
happen at or who's in the way. We have shootings in
malls - the last one happened [on January 21, 2005]
where two of our gangs got into a confrontation and
shots were fired through the main doors of the mall
without any regard [for] ... who was there. We also
have houses shot up, cars shot up, businesses shot up.
... These things just happen and there's just no
regard for public safety at all - it [isn't] ... like
they go out in the woods and settle it themselves -
they just pull into wherever and just start firing at
each other. ...
When we have these calls of shot fired, typically the
[APD] ... will find the car that this has happened
from. What we run into, though, is ... that ...
typically we'll find a weapon [in the car], but we
can't put that weapon in anybody's hand; the kids who
are at this level are smart enough to say ...: "I
don't know whose gun it is," ... "It's not mine," "I
[didn't] know it was in here," or "I want my
attorney." And without us actually being able to put
the gun in the kid's hand that fired it, we can't
charge them.
Unfortunately, out of all of our shootings last year,
we only know of 11 where we were able to charge these
kids that did these shootings where ... these laws
would have applied. And that's just sort of what we
run into. ... It's not against the law for a 17- or an
18-year-old to have a gun as long as it's not
concealed, and basically ... we're kind of in a hard
spot there.
1:39:10 PM
CHAIR McGUIRE remarked, however, that nothing in the bill
appears to help link a firearm with the person who uses it, and
so there may always be that challenge. The committee is
addressing the question of whether to put someone 16 years of
age or older into an adult facility, she relayed, and asked the
APD to comment on how doing so will further the goals of the
APD: Are youth incarcerated in youth facilities more of a
danger to the public? Is there more of an opportunity for those
offenders to escape from those facilities and cause problems
back on the street? Are youth facilities not doing a good job
of rehabilitating the type of juveniles being discussed? If the
latter is the case, would those juveniles have a better chance
of being rehabilitated in an adult facility, or are they just
sort of being written off?
MR. LYONS replied that perhaps the juveniles under discussion
can be rehabilitated if they can be caught early enough and if
the penalties, at the juvenile level, are severe enough to act
as a deterrent. He said, however, that what he has seen,
particularly with regard to youths involved in gang-related
activities, is that they are beyond rehabilitation; "they are
doing now the only thing they know [how] ... to do, and that is
to take a gun and use it to resolve all their problems." He
mentioned that the federal system has a program called, "project
safe neighborhoods," which focuses on gun crimes and those who
are habitual users of guns; however, the only way to determine
if someone is a habitual user of guns is if he/she has a prior
felony conviction for gun use, and this is where [adoption of HB
88] could assist the APD, that is, if such juveniles are waived
into an adult system and are convicted of felony gun use. If
such occurs and the person continues his/her behavior into
adulthood, then he/she will be subject to stiffer penalties,
particularly under federal law.
1:42:34 PM
REPRESENTATIVE GARA said he wants to feel comfortable that
adopting the bill is the right thing to do, that none of the
children who will be affected by the bill would be redeemable
through incarceration in a juvenile facility anyway.
MR. LYONS replied that according to his experience, the types of
crimes HB 88 addresses are being committed by children of
younger and younger ages, and the younger an offender is, the
more hope there is that he/she can be rehabilitated. However,
what he is also seeing, he relayed, is that those close to the
age of adulthood have already made up their minds about "where
they're going" and have a total disregard for anything and
anybody; their experience has shown them that they won't be
punished for their actions because of the ineffectiveness of
current juvenile penalties, and they just don't realize that
they will face severe penalties for their continued criminal
behavior once they become adults. Such juveniles know that for
the most part, until they reach the age of 18, they can
participate in any activities involving guns and they will get
away free. Once juveniles who have elevated their behavior to
gun use reach a certain age, that is the only way they are
willing to resolve their problems, and they just don't care
about the outcome.
1:45:19 PM
MS. WARE said that with regard to statistics, in a two-year
fiscal period, the DJJ only received 40 referrals for the
combined charges of first degree and second degree misconduct
involving a weapon; of those 40 referrals, only 26 of the
juveniles were 16 years of age or older. Therefore, had the
waiver provision of HB 88 been in effect for that particular
two-year time period, it would have applied to only 26
juveniles, not a significant number of juveniles, particularly
given the severity of the crimes committed by those juveniles.
CHAIR McGUIRE asked what factors tend to get the attention of
juveniles, and what kind of recidivism rate juveniles have.
MS. WARE said that the DJJ tracks recidivism in two ways and for
two-year periods: for juveniles who are leaving long-term
institutional treatment; and for juveniles who have not served
time in a facility but for whom the DJJ has closed out a
probation supervision case. She relayed that she would get that
data to committee.
CHAIR McGUIRE said it might be helpful to know whether the
current policy is working and, if it isn't, whether it is
because the juveniles are not [capable of] being rehabilitated
in youth facilities or because there are not enough resources in
youth facilities. She surmised that the committee wants to know
whether there is really a need for the proposed policy change.
She added:
With these young people, we're going to see them
again; they're in our communities, we have to live
with them for the rest of our lives until, presumably,
they reoffend. And so if they have a better
opportunity to get their act together and start being
law-abiding citizens by staying in [a] youth facility,
then that's where we want them. If you think that
they're going to be better off in adult [populations],
then I want to know why. So to the extent that any of
your studies or information can lead us down that path
[of understanding], I would ... [appreciate receiving
it].
REPRESENTATIVE COGHILL offered his understanding that there are
three populations that the DJJ has to deal with: youthful
misdemeanants, those with mental health issues, and those that
could be characterized as hardened criminals. If bill passes,
it is saying that juveniles that are hardened criminals will be
waived into adult court. He asked whether such juveniles are
disruptive to the JJS, and whether putting them in the adult
system would be harmful to them instead.
1:50:18 PM
MS. WARE said that perhaps the DJJ could arrange its recidivism
data such that it reflected just the juveniles that would be
affected by the bill, though she cautioned that such might not
possible.
REPRESENTATIVE COGHILL surmised that the JJS is quite different
from the adult system and thus treats its offenders quite
differently, even those that are considered hardened criminals.
CHAIR McGUIRE asked the DJJ to present an overview to the
committee at a later date.
MS. WARE agreed to do so.
1:52:22 PM
REPRESENTATIVE GARA asked whether, in the aforementioned 26
cases, waivers were requested but denied. Why wouldn't the
state just apply for waivers for those types of cases?
Shouldn't that be the first step?
MS. WARE said she would research that information and provide it
to the committee, but noted that Ms. Carpeneti already spoke to
the issue of how difficult it is to get a discretionary waiver.
REPRESENTATIVE GARA questioned why the legislature should try
and alter the current waiver provision of law if it's simply the
case that discretionary waivers are not being sought to begin
with. He noted that the bill appears to also apply to juveniles
who shoot at road signs while out for a "joyride."
MS. WARE pointed out, however, that even if such juveniles do
not intend to hurt someone with that particular behavior, they
are still shooting a firearm from a moving vehicle and so there
is the potential for innocent bystanders to get hurt or killed;
also such juveniles, according to the information relayed by the
APD, probably already have prior criminal histories. So the
question before the committee, she surmised, is whether the
offenses of shooting at property and people from a moving
vehicle or using a gun while engaging in a drug-related activity
rises to a level that warrants an automatic waiver into adult
court.
REPRESENTATIVE GARA opined, however, that shooting at road signs
is not irredeemable conduct, and reiterated that the bill as
written appears to apply both to those that commit that kind of
offense as well as to those that shoot at people from cars or
during the commission of a drug-related crime. He suggested
that the administration consider narrowing the scope of the bill
so that the waiver provision applies only to the egregious
circumstances.
1:58:04 PM
LIEUTENANT COBB said he agrees with Representative Gara on the
issue of whether the bill should apply to those shooting at road
signs; rather, the bill should be directed at those who shoot at
residences, schools, or other buildings where people are likely
to be.
1:59:01 PM
LEONARD M. "BOB" LINTON, JR., District Attorney, Third Judicial
District (Anchorage), Department of Law (DOL), said that in the
early '90s, the phenomenon of drive-by shooting began to occur.
There began to be instances where, for no understandable or real
reason, people would get into a dispute with one another and
take it out on each another with guns - they'd fire at each
other driving down the street, they'd fire at each other in
neighborhoods, they'd fire at each other in the parking lots of
commercial establishments - and people were being endangered.
And it wasn't as if people could prevent themselves from being
endangered merely by refraining from gang affiliation either,
because they would be on those same streets, in those same
neighborhoods, and at those same parking lots where the shooting
was occurring.
MR. LINTON said that as a result, the legislature decided that
the dangers engendered by drive-by shootings were sufficiently
serious to make such crimes class A and B felonies. That meant
that an offender convicted for the first time of such a crime
was subject to a five-year presumptive sentence - for a class A
felony - or to a one- to four-year sentence - for a class B
felony - and any rehabilitative factors would be ignored at
sentencing. House Bill 88, by including such crimes in the
automatic waiver provision of current law, seeks to make those
sentences apply to offenders who are 16 years of age and older.
MR. LINTON went on to detail a few examples of circumstances
surrounding juveniles involved in recent drive-by shootings as
illustrative of the need for the change proposed by HB 88. Such
juveniles are not only perpetrating these acts of violence but
are also ending up as the victims of similar retaliatory acts.
Such conduct has no social utility whatsoever, he opined, and
cannot be characterized as merely youthful conduct. So although
the JJS is designed to be rehabilitative, the adult system is as
well, and at some point the danger of a juvenile's conduct
warrants legal actions other than those currently being taken.
2:08:10 PM
REPRESENTATIVE GRUENBERG asked whether, under HB 88, juveniles
who are simply shooting at road signs would have to be waived to
adult court.
MR. LINTON surmised that the court would have to determine
whether such action constitutes a substantial and unjustifiable
risk of harm to a person or damage to property, as outlined in
AS 11.61.190(a)(2). In response to further questions, he said
he doesn't know of any instances where the court's discretion
when considering crimes under that statute is being abused, and
offered another example of a situation wherein two bystanders
were nearly hit by people shooting at each other from moving
vehicles, as well as an example of shots from moving vehicles
being fired into a dwelling. He remarked that even if someone
is just driving along shooting at road signs, there are few
legitimate reasons for such behavior - that of shooting a gun
from a moving vehicle - and it still constitutes dangerous
behavior.
2:13:29 PM
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, said he supports HB 88 for the
following reasons: it is very difficult to waive a juvenile
into adult court under current law because of the demand on the
system's resources; and juveniles who are involved with guns and
drugs eventually graduate into adult courts within a couple of
years but generally only after someone is injured or killed.
House Bill 88 will allow the criminal justice system to
intervene at an earlier stage, he opined, and suggested that
another beneficial effect of the bill is that it would allow the
prosecutor to negotiate with the defense counsel regarding
conduct that falls within the ambit of the bill, and this
negotiation could result in cases being resolved in alternative
ways rather than trying the defendant as an adult. In
conclusion he echoed Ms. Ware's statement regarding the probable
number of cases the bill would apply to, and reiterated that he
supports HB 88.
2:16:19 PM
CHAIR McGUIRE relayed that HB 88 would be set aside.
HB 41 - ASSAULT ON SCHOOL EMPLOYEES
[Contains discussion of HB 88 and a proposed amendment to it.]
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 41, "An Act relating to minimum periods of
imprisonment for the crime of assault in the fourth degree
committed against an employee of an elementary, junior high, or
secondary school who was engaged in the performance of school
duties at the time of the assault."
CHAIR McGUIRE, speaking as one of the prime sponsors of HB 41,
relayed that she is having an amendment for HB 41 drafted.
2:17:14 PM
DEBRA MEISTER shared with the committee her personal experiences
regarding interactions she'd had with employees at her
daughter's school as illustrative of the kinds of problems that
could arise for parents if HB 41 is passed without strict
[scrutiny], and characterized the behavior of [those she'd
interacted with] as a misuse of power.
2:26:40 PM
MARY A. FRANCIS, Executive Director, Alaska Council of School
Administrators (ACSA), mentioned that the ACSA has provided the
committee with its resolution on this topic, and relayed that it
is the responsibility of school administrators to seek and
perpetuate a nonviolent climate in schools, adding that most
assaults of the nature the bill proposes to address occur
against school administrators. She pointed out that as
educators, [school employees] are not trained to deal with some
of the types of situations they are confronted with, and thus
feel the need for additional protection.
2:27:58 PM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, one of the
prime sponsors of HB 41, noted that there has been a lot of
interesting testimony, offered his belief that there is a broad
range of support for HB 41, and said that HB 41 and HB 88 are
complementary. In conclusion, he asked the committee for
favorable consideration of HB 41.
2:28:53 PM
GARDNER COBB, Lieutenant, Patrol Commander, Anchorage Police
Department (APD), Municipality of Anchorage (MOA), indicated
that he is familiar with Ms. Meister's circumstances, noted that
the bill would only apply to those convicted of assault, and
assured the committee that the APD and the prosecutor would use
their discretion to ensure that such is the case. He pointed
out that the bill is intended to address the type of
circumstance that arose three years ago, wherein the mother of
an elementary school student came to school, issued threats
towards a teacher and then severely and repeatedly assaulted the
teacher while the children watched.
LIEUTENANT COBB relayed that at the time, the APD's policy in
such a situation was to cite the person for misdemeanor assault,
and since the woman was calm by the time police arrived, she was
cited and allowed to leave the school. He opined that this sent
the wrong message as far as APD was concerned, and the APD has
since changed its policy so that anytime there is an assault on
a teacher on school grounds, the perpetrator is removed from the
school in handcuffs so as to send the message that such behavior
will not be tolerated. Noting that current law provides
protection against assaults for police officers, paramedics,
firemen, and other emergency responders because they are
sometimes called upon to do dangerous things, he asked that the
bill be passed with a minimum mandatory sentence so as to send
the message that violence in schools is unacceptable - students
can't learn and teachers can't teach if they aren't safe.
LIEUTENANT COBB mentioned a couple of other similar situations
in which the courts imposed significant sentences, and one the
reasons for this, he surmised, had to do with the APD's close
working relationship with the prosecutor's office and the judge.
But those relationships can change, he remarked, and so it would
be appropriate to institute a [statewide] standard so as to send
the message that violence in schools is unacceptable.
2:33:39 PM
CHAIR McGUIRE mentioned that at a meeting she'd attended with
Close Up Foundation students, the children expressed support for
HB 41 and relayed that violence against teachers occurs more
often than is heard about. She remarked that the legislature
wants to be careful not to create a special class of victims,
and mentioned that an amendment she'll be proposing specifies
that the assault must occur on school grounds or at a school-
sponsored event; this will send the message that schools are to
be free from violence. Policy has already been set with regard
to violent behavior towards police officers, and the bill sends
the same message about school employees. She acknowledged that
in the recent cases used as examples, the sentences have been
greater than those proposed in the bill, but pointed out that
the question then becomes whether such will occur in all future
cases; setting public policy on this issue via the change
proposed in HB 41 will ensure consistency in sentencing. In
conclusion, she opined that adoption of HB 41 will not result in
great numbers of people being incarcerated for the crime
specified therein.
2:37:43 PM
CHAIR McGUIRE made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 2, Line 4:
After "school duties"
Insert "while on school grounds or at a school-
sponsored event"
CHAIR McGUIRE said Amendment 1 narrows the set of circumstances
that the bill would apply to such that a school employee must be
on school grounds or at a school-sponsored event and must be
engaged in his/her school duties; the bill, then, would not
apply to assaults that occur off school grounds or while an
employee is on his/her own time. She suggested that this
distinction will ensure that a separate class of victims is not
being created.
CHAIR McGUIRE, in response to a question, relayed that although
she'd originally thought the committee might meld the waiver
provision of HB 88 into HB 41, she feels that the public
testimony on and the committee's questions regarding HB 88 have
indicated to her that it might be better to keep each bill
separate.
REPRESENTATIVE GRUENBERG referred to his proposed amendment to
HB 88, labeled 24-GH1096\A.1, Luckhaupt, 2/7/05, which read:
Page 1, line 2:
Delete "against a school employee"
Insert "on school grounds, on a school bus, at a
school-sponsored event, or in administrative offices
of a school district"
Page 2, lines 16 - 18:
Delete all material and insert:
"(31) the offense is a violation of
AS 11.41 or AS 11.46.400 and the defendant directed
the conduct constituting the offense against a person
while the person was on school grounds, on a school
bus, at a school-sponsored event, or in the
administrative offices of a school district; in this
paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900."
REPRESENTATIVE GRUENBERG also referred to his proposed amendment
to HB 41, labeled 24-LS0307\A.1, Luckhaupt, 2/7/05, which read:
Page 1, line 4, following "assault":
Insert "; relating to aggravating factors in
sentencing for certain offenses committed against
persons while on school grounds, on a school bus, at a
school-sponsored event, or in the administrative
offices of a school district"
Page 2, following line 6:
Insert a new bill section to read:
"* Sec. 2. AS 12.55.155(c) is amended by adding a
new paragraph to read:
(31) the offense is a violation of AS 11.41
or AS 11.46.400 and the defendant directed the conduct
constituting the offense against a person while the
person was on school grounds, on a school bus, at a
school-sponsored event, or in the administrative
offices of a school district; in this paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900."
REPRESENTATIVE GRUENBERG said he would prefer to take the parts
of HB 88 that the committee likes and [add them to HB 41]. He
opined that there are two questions: whether to make "this" a
separate crime, or whether to make "it" an aggravator.
Whichever method is chosen, he remarked, the language [in the
amendment] is not directed at whether the person is an employee
but, rather, where the conduct takes place. In this way,
teachers - both local and visiting - students, and contractors
would be covered, the key point being the location where the
conduct takes place, since the desire is to ensure that schools,
school facilities, and school buses are safe.
CHAIR McGUIRE said she likes that approach but feels that making
the behavior an aggravator is fruitless at this point due to the
Blakely decision, since resource limitations would make separate
trials for aggravators, as would be required under Blakely,
prohibitive.
2:44:25 PM
REPRESENTATIVE GRUENBERG suggested using the language in his
amendment that pertains to location so as to stipulate that the
bill applies to whomever the conduct is directed at as long as
he/she is on school grounds, on a school bus, at a school-
sponsored event, or in the administrative offices of a school
district.
CHAIR McGUIRE indicated that she was amenable to the concept [of
stipulating location].
2:44:53 PM
CHAIR McGUIRE withdrew Amendment 1.
CHAIR McGUIRE said she would like to offer a conceptual
amendment to implement Representative Gruenberg's suggestion.
She asked whether the committee still wants to include the
stipulation that the person the conduct is directed at be an
employee, noting that the statute HB 41 proposes to amend
already specifies uniformed groups of people.
REPRESENTATIVE GRUENBERG urged the committee to adopt the
language in his amendment that reads:
against a person while the person was on
school grounds, on a school bus, at a school-sponsored
event, or in the administrative offices of a school
district; in this paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900."
REPRESENTATIVE GRUENBERG noted, however, that he would like to
ensure that the current statutory definition of "school grounds"
includes preschools.
2:48:04 PM
REPRESENTATIVE COGHILL pointed out that school sports activities
can sometimes engender heated behavior, and said he would not
want to include the locations of such activities in the bill.
He offered his belief that the intent of the bill is to make
schools safer, and asked whether the committee wanted to make
the penalty proposed by the bill applicable only to behavior
that occurs on school grounds. He indicated that he would be
comfortable if the bill applies only to "those who are
protecting children" during the course of their employment
duties, rather than having the bill pertain to anyone on school
grounds.
REPRESENTATIVE DAHLSTROM offered an example of two parents
involved in the Parent Teacher Association (PTA) getting into a
fight; although such behavior is wrong, particularly if it
happens in front of children, she is not sure it rises to the
same level as conduct directed at a teacher.
REPRESENTATIVE GRUENBERG asked about conduct that is directed at
a child.
CHAIR McGUIRE offered her belief that such would be handled
differently.
2:50:14 PM
CHAIR McGUIRE pointed out that Amendment 1 does essentially the
same thing as Representative Gruenberg's suggested language
except that it doesn't specify school buses.
CHAIR McGUIRE made a motion to adopt an amended Amendment 1,
which would read [original punctuation provided]:
Page 2, Line 4:
After "school duties"
Insert "while on school grounds, a school bus, or at a
school-sponsored event"
CHAIR McGUIRE offered her belief that the definitions outlined
in Representative Gruenberg's amendment could also apply to
Amendment 1.
REPRESENTATIVE GRUENBERG asked about [the inclusion of]
preschools.
CHAIR McGUIRE said she is "not comfortable with that," and
suggested that he consider offering language to that effect in a
separate amendment.
2:51:48 PM
REPRESENTATIVE COGHILL objected for the purpose of discussion.
He asked how school districts employ bus drivers. If bus
drivers are contract workers, the employee stipulation may not
cover them.
CHAIR McGUIRE asked the representative from the Alaska branch of
the National Education Association (NEA-Alaska) whether people
on contract with the school would be considered school employees
while they are performing the duties they've been contracted to
perform.
TOM HARVEY, Executive Director, NEA-Alaska (National Education
Association, Alaska branch), said they would not be considered
school employees; instead they are employees of the company that
contracted the services.
CHAIR McGUIRE asked how many school bus drivers are on contract.
MR. HARVEY said he didn't have the exact number, but offered
that bus drivers in Anchorage and Kenai are on contract, and
indicated that elsewhere in the state there are folks performing
duties in schools on contract.
REPRESENTATIVE ANDERSON asked Mr. Harvey whether he has any
suggestions.
MR. HARVEY opined that adding the term "administrative offices
of the school district" would be an appropriate change because
personnel in such locations are not on school grounds, and
offered to provide the committee with a suggested definition of
school employee within 24 hours.
CHAIR McGUIRE suggested that the committee resolve the issue of
whether to adopt Amendment 1, as amended.
REPRESENTATIVE ANDERSON made a motion to amend Amendment 1, as
amended, to add a reference to administrative offices. There
being no objection, Amendment 1, as amended, was amended in that
fashion.
2:55:50 PM
CHAIR McGUIRE asked Representative Coghill if he was maintaining
his objection to Amendment 1, as amended.
REPRESENTATIVE COGHILL said he is struggling with the broader
language being used in conjunction with the mandatory minimum
sentence proposed by the bill, adding that although he did not
want to hold up Amendment 1, as amended, he would be maintaining
his objection.
2:57:14 PM
A roll call vote was taken. Representatives McGuire, Anderson,
Dahlstrom, Gruenberg, and Gara voted in favor of Amendment 1, as
amended. Representative Coghill voted against it. Therefore,
Amendment 1, as amended, was adopted by a vote of 5-1.
2:57:50 PM
CHAIR McGUIRE suggested the committee discuss the issue of
contract employees.
REPRESENTATIVE GRUENBERG said he is troubled with the concept of
elevating assaults against adults [who are school employees and
who are at the specified locations as part of their profession]
but not elevating assaults against children and other innocent
bystanders who are at those same locations. He again suggested
that the bill pertain to conduct at specified locations without
regard to particular classes of people. Such a stipulation
would address the issue of contract employees, he remarked, and
offered his belief that schools ought to be safe for everybody
including children and innocent bystanders. He offered an
example wherein a person assaults two people, a child and a
teacher. Under such a scenario, the assault on the teacher
would result in the imposition of the mandatory minimum sentence
proposed by the bill, whereas the assault on the child wouldn't.
He offered further similar examples wherein assaults on two
different people would result in two different sentences.
CHAIR McGUIRE pointed out that the bill proposes to alter a
statute that already pertains to assault in the forth degree
against certain classes of adults, not children. If the bill is
not limited to school employees, it could apply to situations in
which someone is assaulted while walking his/her dog on school
grounds. In response to a comment, she pointed out that if a
teacher chooses to walk his/her dog on school grounds and gets
assaulted, that teacher is not performing school duties as
stipulated in the bill, and therefore the bill should not apply
in such a situation.
REPRESENTATIVE ANDERSON offered his belief that the intent of
the bill is to address assaults directed at school employees,
and suggested that members who wish to address assaults directed
at other individuals while on school grounds do so via a
separate bill.
3:02:11 PM
REPRESENTATIVE GARA said he couldn't see where the bill only
applies to adults.
REPRESENTATIVE GRUENBERG pointed out that Title 47 applies to
sentences imposed on children, whereas the bill proposes to
alter Title 12, which only applies to sentences imposed on
adults.
REPRESENTATIVE GARA said he just wanted to be sure that the bill
only applies to [sentences imposed on] adults.
3:04:04 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
assured the committee that the mandatory minimum sentence
proposed by the bill would not apply to children.
REPRESENTATIVE ANDERSON moved to report HB 41, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
3:05:05 PM
REPRESENTATIVE GARA interjected with a motion to adopt Amendment
2, which read [original punctuation provided]:
The court may determine a shorter sentence is
justified upon proof, under AS 12.55.155, that any of
the factors in AS 12.55.155(d)(1-17) apply.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA opined that Amendment 2 accepts the premise
of the bill that assaulting a school employee is a serious
issue, and remarked that he is in favor sending that message.
However, since the courts are already imposing sentences greater
than that proposed by the bill, Amendment 2 give the court the
flexibility to impose a lesser sentence if a statutory mitigator
applies.
REPRESENTATIVE GARA again made the motion to adopt Amendment 2.
REPRESENTATIVE COGHILL said he tended to agree with
Representative Gara [on this issue].
REPRESENTATIVE ANDERSON indicated that he was maintaining his
objection.
REPRESENTATIVE GRUENBERG asked where Amendment 2 would be
inserted.
3:09:09 PM
REPRESENTATIVE GARA suggested that Amendment 2 be inserted after
the last line of the bill.
3:09:23 PM
A roll call vote was taken. Representatives Coghill, Gruenberg,
and Gara voted in favor of Amendment 2. Representatives
McGuire, Anderson, and Dahlstrom voted against it. Therefore,
Amendment 2 failed by a vote of 3-3.
CHAIR McGUIRE asked whether there were any objections to
Representative Anderson's motion to move HB 41, as amended, from
committee. There being none, CSHB 41 (JUD) was reported from
the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:10 p.m.
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