Legislature(2007 - 2008)SENATE FINANCE 532
03/28/2007 09:00 AM Senate FINANCE
| Audio | Topic |
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| Start | |
| SB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 5 | TELECONFERENCED | |
| + | TELECONFERENCED |
MINUTES
SENATE FINANCE COMMITTEE
March 28, 2007
9:03 a.m.
CALL TO ORDER
Co-Chair Bert Stedman convened the meeting at approximately
9:03:42 AM.
PRESENT
Senator Lyman Hoffman, Co-Chair
Senator Bert Stedman, Co-Chair
Senator Charlie Huggins, Vice Chair
Senator Kim Elton
Senator Joe Thomas
Senator Fred Dyson
Senator Donny Olson
Also Attending: SENATOR LESIL MCGUIRE, SENATOR GARY STEVENS,
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law;
Attending via Teleconference: From offnet locations: LISA
SOMMER, GERAD GODFREY, Chair, Violent Crimes Compensation Board,
Department of Administration; KATHY HANSON, Interim Director,
Office of Victims' Rights.
SUMMARY INFORMATION
SB 5-FAILURE TO REPORT CRIMES
The Committee heard from the bill's sponsor, the Department of
Law, the Violent Crimes Compensation Board, the Office of
Victims' Rights, and a member of the public. The bill was held
in Committee.
9:03:49 AM
CS FOR SENATE BILL NO. 5(JUD)
"An Act relating to reporting of certain crimes."
This was the first hearing for this bill in the Senate Finance
Committee.
9:04:56 AM
SENATOR LESIL MCGUIRE, sponsor of the bill, introduced her staff
member, Marit Carlson-Van Dort, as a policy aide who would be
available to answer questions.
Senator McGuire recounted that the impetus for this legislation
was the highly publicized death of Kiva Friedmann. Ms. Friedmann
was brutally beaten, raped and murdered by her boyfriend in 2003
in Anchorage. Three individuals, one of whom was the
perpetrator's brother, witnessed the extent of her injuries
while she was still alive, but did not report the crime. Ms.
Friedmann died as a result of her injuries hours later.
9:07:41 AM
Senator McGuire informed that this bill would add to existing
required reporting statute. The existing reporting requirements
were developed in reaction to a crime committed against an eight
year old girl in Nevada. Senator McGuire reminded that the child
was raped and killed in a casino bathroom. A friend of the
assailant witnessed the commission of the crime and did not
report it to authorities.
9:09:47 AM
Senator McGuire told that this bill would expand the definition
of required reporting to a crime committed against a "person",
as the existing legislation is limited to crimes committed
against a "child". An amendment made by the Senate Judiciary
Committee changed language in the bill requiring the report of a
crime "in a timely manner" to "as soon as reasonably
practicable". The bill retained the defenses for not reporting
that exist in statute. These included fear of harm to self or
family due to reporting the crime. She exampled an instance of a
small apartment complex, in which neighbors know each other, and
an individual might fear for their own safety if they reported a
suspected crime committed by a neighbor.
9:11:25 AM
Senator McGuire explained that the bill would "stagger" the
penalties that would apply to a violation of this bill to make
the ramifications relative to the crime itself. For example,
failure to report an unclassified felony would result in a
charge of a Class C felony under this bill. Failure to report a
classified felony or other crime would result in a charge of a
Class A misdemeanor. She considered this a "middle ground".
9:12:15 AM
Senator McGuire stated that the Department of Law would present
its concerns regarding immunity and prosecution. She advised
that the complications the Department anticipated were without
merit, as the original required reporting legislation had been
in statute since 1999 and had not produced such results. Similar
laws exist in the states of California, Nevada, Massachusetts,
Florida, Ohio, Rhode Island, Texas, Washington, and Wisconsin.
Senator McGuire addressed the "philosophical underpinnings" of
this legislation by referencing the 1964 murder of Kitty
Genovese in New York City. Ms. Genovese was stabbed as she
approached her home, and despite numerous witnesses, the police
were not notified. Senator McGuire stressed that this bill was
intended to address instances of imminent danger of bodily harm
or death, and not minor violations.
9:14:55 AM
Co-Chair Stedman asked the differentiation of classified and
unclassified felonies.
9:15:21 AM
Senator McGuire defined unclassified felonies as "serious
murders" which would carry a life sentence. Classified felonies
are delineated as class A, B, or C. The next step down in
severity is a misdemeanor offence, followed by a violation.
9:16:02 AM
Senator McGuire set forth that this bill would not be applicable
to average misdemeanor or white-collar offences. It would be
limited to very serious, visible crimes that would lead to
imminent physical harm and likely death.
9:16:52 AM
Co-Chair Stedman asked if this legislation could weaken the
original statutory intent by changing "child" to "person".
Senator McGuire responded negatively, adding that this bill
would strengthen the original legislation by expanding the class
of person covered by the reporting requirement from "child" to
any person.
9:17:22 AM
Co-Chair Stedman asked about charges brought under the original
statute.
Senator McGuire understood that no charges had been brought
under that law since its enactment. She specified that the bill
would be used where applicable, and characterized it as a
"hammer to have in the tool belt". It would raise public
awareness regarding the duty of individuals to report crimes
against others. The "defense" in the bill would not require a
person to put themselves in danger by reporting a crime.
Senator McGuire continued, summarizing a television news story
on bystander inaction when witnessing a kidnapping. This bill
would not require a person to intervene in a kidnapping, but
merely call police to report the event.
9:20:39 AM
Senator Thomas asked the location of the exemption to the
reporting requirement.
9:21:04 AM
Senator McGuire identified that provision as AS 11.56.765.
Failure to report a violent crime committed against a child.,
subsection (b).
9:22:52 AM
Senator Huggins exampled a reporter embedded with a sniper
filming the shooting of a US military officer in Afghanistan. He
asked how a reporting requirement would apply in that situation.
He opined that the culture was moving in a direction counter to
the intent of this legislation, and asked how people could be
required conform.
9:24:47 AM
Senator McGuire responded that war circumstances were different
than "average daily life in America", and were governed by
different laws. This bill would encourage citizens to act
responsibly. She suggested that the laws created and implemented
by adults have a "trickle down effect" on children, and exampled
marijuana laws.
9:26:37 AM
Senator Huggins offered that he would likely support the bill,
but stated that the legislation would not encourage people, it
would criminalize them. He asked the predominance of "accessory"
charges in these types of cases.
9:27:40 AM
Senator Dyson related that the friend of the man convicted in
the Nevada case was not charged as an accessory to the murder
due to the fact that he had not been a participant the
commission of the crime. There existed a "common law assumption"
that an individual was obligated to render assistance to a crime
victim. This legislation would codify common law, and clearly
state the expected standards of society.
Senator Dyson had had discussions regarding the possible legal
options available to charge a hotel employee who is aware of an
underage prostitute at the location, and he indicated that this
bill would be an appropriate medium. The bill would also have
been applicable to the "gang rape" of two girls, during which 10
to 15 people observed the crime. At that time, the original
legislation had not yet been signed in to law.
Senator Dyson told that he had not advocated for a more
generally applicable law when drafting the original legislation
due to the fact that the legislation "was breaking new ground,"
and the crime was more clearly defined when limited to an
adult's duty to report a crime against a child.
9:32:11 AM
Co-Chair Stedman highlighted the indeterminate fiscal notes from
the Public Defender Agency and the Office of Public Advocacy. He
was unsure of the fiscal impact on the Department of
Administration, but would "explore" the issue. Fiscal note #3
from the Violent Crimes Compensation Board contained analysis
stating that the Board anticipated the legislation would
increase the number of violent crimes reported. He alluded that
in increase in reported crimes could also affect the Department
of Law.
9:33:14 AM
Senator Elton was concerned by the "slippery slope" of
criminalizing immoral behavior. He suspected that changing the
law to legally prohibit the "heinous" behavior detailed
previously would make it easier to change reporting requirements
related to other crimes. He was unsure where the line would be
drawn, and exampled a situation where a teenager who witnessed
friends smoking marijuana could be required to report the
offense.
9:35:27 AM
Senator McGuire opined that Alaskans were adamant regarding the
protection of their rights and privacy. She "would not agree to
go down a slippery slope". She assumed the legislative process
would prevent the erosion of personal rights. This bill would
address physical acts of: murder, attempted murder, kidnapping,
attempted kidnapping, sexual penetration and assault. It would
not be applicable to the example offered by Senator Elton, and
would not encourage "snooping". She stressed the "reasonability"
of the bill, and its intent to provide an "incentive" for an
individual to get involved to protect the life of another
citizen.
9:38:28 AM
Senator Elton remarked that the manufacture of methamphetamine
would have the effect of putting many lives at risk, including
drug users and members of the general public who may fall victim
to the crimes of drug users attempting to support their habit.
He struggled with this aspect of the bill, as it seemed to "lead
down the slippery slope."
9:39:21 AM
Senator McGuire responded that the bill contained very specific
definitions of the crimes that would fall under the purview of
this legislation, and did not include the situation described by
Senator Elton.
Senator Elton appreciated the efforts of the bill, but saw a
real possibility for the expansion of reporting requirements by
a future legislature.
9:40:21 AM
Senator Huggins was concerned with criminalizing inaction. He
offered an example of his daughter, a cadet at West Point
Academy, who voluntarily reported a misdoing of a fellow
classmate and friend. While he supported this type of
involvement, he questioned expanding the reporting requirement.
AT EASE 9:42:24 AM/9:42:47 AM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, expressed the Department's reservations about
the bill. She informed that the legislation would harm the
Department's ability to prosecute offenders. She understood the
"compelling moral obligation" to assist others, but told that
criminalizing non-reporting would make prosecution of
perpetrators more difficult.
9:44:45 AM
Ms. Carpeneti identified the practical problem of the potential
loss of a witness to testify against an offender. If a witness
had not reported crime within a "reasonably practicable time"
that person would be subject to criminal prosecution. In such a
case, the witness would hire or be appointed an attorney, and
that attorney would advise their client not to cooperate with
the prosecution to avoid self-incrimination.
Ms. Carpeneti explained that the prosecution would either lose
that person as a witness, or would have to grant immunity to the
witness for the entire crime their testimony would relate to.
The State of Alaska utilizes "transactional immunity," which
immunizes the witness from the entire crime they testify about.
Immunized testimony is not as persuasive as other testimony in
prosecuting the perpetrator of a crime.
9:46:38 AM
Ms. Carpeneti stressed the Department's trepidation regarding
immunized witnesses, and acknowledged that the same apprehension
existed when the original legislation was under consideration.
No cases had been brought under the original "failure to report
crimes against a child" legislation. Two arrests were made under
that law, but both were dismissed by prosecutors due to lack of
evidence.
Ms. Carpeneti communicated that the current law and the
legislation under consideration cover assault as well as murder,
kidnapping and rape. She exampled witnessing a car accident
involving drunk driver that resulted in a serious injury to
another passenger. That injury would be classified as an
assault, and every driver who passed that accident scene would
be required to report the assault, or would be subject to
prosecution under this bill for failure to do so.
Ms. Carpeneti stated that current law includes provisions to
address affirmative actions taken after the commission of a
crime to hinder prosecution. Hindering prosecution in the first
degree is a Class C felony under current law, and that provision
could be expanded to assist law enforcement. One possibility
would be the addition of language proscribing "acting with
intent to hinder the discovery of a crime", and adding a
provision to address lying to a police officer. Laws enacted by
other states typically are limited to the failure to report
crimes against a child. A federal law also existed pertaining to
misprision of a felony, but that law had been interpreted by the
courts to require some other "affirmative" act by the defendant,
not just failure to report.
Ms. Carpeneti concluded that the Department was willing to
assist in the development of a bill that would encourage the
reporting of criminal acts, but that this legislation would make
prosecution of perpetrators of crime more difficult. She
disclosed that in the case involving Ms. Friedmann's death, the
perpetrator called police and confessed to his crimes, thus no
witnesses were necessary. Future cases, however, could very well
require the cooperation of a witness in order to prosecute the
offenders.
9:51:41 AM
Senator Dyson recalled legislation passed the previous year to
allow police officers to gather information at the scene of a
crime.
Ms. Carpeneti clarified that the new law allowed officers to ask
the names of persons at the scene. A person refusing to provide
their name could be photographed for identification purposes.
Senator Dyson hypothesized a situation in which police respond
to a report of a crime, and upon arrival at the scene, everyone
present claims to have witnessed nothing. The police photograph
or otherwise identify those present, and subsequently learn that
a crime had been committed. He asked if in that case, the
prosecutors would be able to offer immunity against prosecution
under this bill in exchange for testimony from a witness.
9:53:35 AM
Ms. Carpeneti replied that a witness would have the right to
refuse to speak with authorities. If the witness was subject to
prosecution under this bill, they would recruit legal counsel.
If the case went to court, the witness' lawyer would request
immunity. If the witness had participated in the commission of
the crime in any way, immunization would disallow prosecution of
that witness for their involvement.
9:54:56 AM
Senator Dyson understood that timing was extremely important in
apprehending offenders, as a witness' "voracity" and ability to
recollect details diminished over time. He asked if a police
officer would have an obligation under Miranda to inform a
witness that admitting to having seen a crime may subject them
to prosecution. He also asked how long it would take a witness
to secure immunity before agreeing to testify.
Ms. Carpeneti answered that it could take weeks to grant
immunity to a witness. As to the question of Miranda warnings,
that would depend on whether or not the witness was in custody.
9:56:41 AM
Senator Dyson expounded, outlining an instance of an individual
approached by an officer and questioned regarding a crime. The
individual provided details of the commission, but had not
reported the crime, and was subsequently prosecuted under the
provisions of this bill. Senator Dyson asked if the witness
could claim that he had not been warned of his right to remain
silent and avoid self-incrimination, essentially a violation of
the Miranda rights.
Ms. Carpeneti replied that it would depend on the circumstances
of the questioning. If the witness was not in police custody, a
Miranda defense would not be applicable. If the witness was in
custody, failure to inform him or her of their Miranda rights
may be a plausible defense.
9:58:03 AM
LISA SOMMER testified via teleconference from an offnet location
that she was the mother of Kiva Friedmann. Ms. Sommer read her
testimony [copy on file] into the record, detailing the
circumstances of her daughter's death.
10:04:49 AM
GERAD GODFREY, Chair, Violent Crimes Compensation Board,
Department of Administration testified via teleconference from
an offnet location. He read a prepared statement into the
record, which was similar to the written comments he submitted
to the Committee [copy on file], which reads as follows.
Dear Senators:
My name is Gerad Godfrey and I chair Alaska's Violent
Crimes Compensation Board (VCCB). I am writing this letter
in support of SB5 with the perspective I have gained during
my tenure on the VCCB.
First and foremost I must preface this letter by stating
that I am as apprehensive about legislation requiring an
affirmative act of private citizens as anyone else. But
this legislation does not present a gross encroachment of
personal freedoms. This legislation is designed to save
people's lives not make criminals of apathetic citizens. If
one can be made a criminal by failing to file a tax return
where no one's life hangs ion the balance then surely, by
comparison, this legislation asks less than that of filing
a tax return yet provides a much greater benefit to the
public than a tax return, by saving lives.
The circumstances of the heinous crime committed on Kiva
Friedman which catalyzed this legislation, unfortunately,
are not unique in Alaska. As chair of the VCCB I have seen
the aftermath and details of thousands of violent crimes
committed on innocent Alaskans. Although the nature of the
crime perpetrated on Kiva was extreme, it is similar to
many other crimes in this state whereby uninvolved parties
were aware of the felony being perpetrated yet did not do
so much as make an anonymous call to 911. Based on
empirical data from the VCCB I estimate that 5-10 times a
year there are circumstances wherein an act of minimal
intervention by an uninvolved citizen, aware of a violent
felony perpetrated on an innocent victim, would have
mitigated the suffering of that victim or saved the
victim's life.
I have read the Department of Law's analysis and position
on this legislation. The DOL is doing what they should be
doing by viewing this from a pragmatic perspective and
reducing it to convictions and acquittals. However, that is
not the purpose of this legislation. The purpose of this
legislation is to compel one to act whereby he/she would
not have acted otherwise. If this legislation compels one
to act, thereby saving a life, but in the process costs the
state a conviction, so be it. Such an occurrence would be
entirely consistent with, and anchored in, one of the
foundational tenets of the American Criminal Justice
system. That tenet is: It is better for a guilty man to go
free than an innocent man to go to jail. In this parallel
the guilty man is the perpetrator of a violent felony and
the innocent man is the victim of such felony. DOL's
position on the unintended consequences is not well
supported by the history of comparable legislation in other
states. DOL cited the rarity of prosecution with such
legislation in other states and that it appeared to be
"token legislation" in some states. Generally, token
legislation is not legislative time well spent. That is not
the case in this instance.
Obscure laws are typically learned of through word of mouth
and time. Imagine 10 years from now if the exact same
scenario that happened to Kiva Friedman happens again. But
this time when the 3 witnesses leave and discuss what they
should do, one of the witnesses recalls from a high school
intro class, or such, that it would be a crime not to
report the torture. So he convinces his buddies that they
should make an anonymous 911 call just to cover their own
tails. By doing this, medical aid is rendered in time to
save Kiva's life. That is a plausible scenario not a myopic
one and when it comes to pass and saves one life, it will
have been worthwhile legislation, token or not.
One way DOL fears SB5 would cost convictions is when
material witnesses to the crime failed to report the crime
and either invoke the Fifth Amendment or are offered
immunity for their testimony. Again, although plausible,
the evidence appears to demonstrate this is a paper tiger.
In all reality, if this legislation was designed to
affirmatively and proactively prosecute apathetic
witnesses, it is poorly written for such, as the defenses
available and the ability to adequately prove the elements
of the crime would be problematic. This is probably another
reason prosecutions for this type of legislation are rarely
seen.
If in fact, in an isolated instance, such legislation makes
prosecution more arduous, yet in another isolated instance
such legislation saves one's life, it can reasonably be
said it is worthwhile legislation. It is only just that
saved lives trump convictions if one must occasionally
yield to the other.
All legislation does not boil down to prosecutions won and
lost and this is such legislation. I hope that Alaska's
Legislature maintains a broad perspective on SB5 and
remembers the intent within it which is to save lives not
make criminals of apathetic individuals.
10:06:44 AM
Co-Chair Stedman asked that Mr. Godfrey "paraphrase" his
testimony and submit his written comments to the Committee.
Mr. Godfrey, as Chair of the Violent Crimes Compensation Board,
had seen thousands of cases of violent crimes in the State, and
described the circumstances of a witness failing to report the
commission of a crime as it was transpiring as "more common than
one might think", occurring five to ten times per year.
10:08:00 AM
KATHY HANSON, Interim Director, Office of Victims Rights,
testified via teleconference from an offnet location in support
of the bill. She stated that concerns regarding immunity would
not apply if the original legislation had applied to crimes
committed against adults as well as children when initially
passed. She identified three reasons to support the bill. The
first was the "fundamental principle" that a society's laws
should reflect its morals. Secondly, the legislation would serve
an "educational function". Finally, the bill would serve as an
additional "tool" for prosecutors. If passed, the Department of
Law would retain sole discretion as to when and how to use the
provisions in the bill.
Ms. Hanson referred to the law review article "41 Brandeis Law
Journal 697" [copy on file] that compared existing similar laws
and suggested a "model statute". She reiterated that the
proposed legislation was limited to specific violent crimes. She
suggested that Section 2 (d)(2) of the bill read: "class A
misdemeanor if the crime not reported is a felony other than an
unclassified felony". That change would limit the duty to report
to witness of the commission of a violent felony.
10:11:10 AM
Ms. Hanson informed that the law review article explained
comparable laws in Europe, other US states and federal statute
as "more stringent" than the current proposal. Some of these
laws require a duty to assist, rather than simply to report. The
federal misprision laws had been "on the books" for ninety
years, and used rarely although successfully.
Ms. Hanson reported that in 2005 a woman was convicted under the
federal law after assisting her boyfriend in a bank robbery.
Prosecutors did not have enough evidence to convict the woman on
accomplice charges, but she was convicted of failure to report
the crime. An appeal was made on Fifth Amendment grounds, and
the court ruled that the Fifth Amendment does not afford a
"privilege to lie".
10:12:59 AM
Co-Chair Stedman asked Ms. Hanson to conclude her testimony.
Ms. Hanson, in a prior hearing, had proposed an exception be
added to subsection (b) of AS 11.56.765 that would provide an
exemption to the requirement to report when existing law
provided a privilege, such as the Fifth Amendment protection
against self-incrimination.
10:13:50 AM
Ms. Hanson understood that the VCCB had a limited fund source,
and thus had to select which victims to compensate. She expected
no additional costs from the VCCB.
10:14:44 AM
Senator McGuire set forth that she would present a committee
substitute for the bill at a later date. That version of the
bill would incorporate Ms. Hanson's recommendation regarding the
Fifth Amendment exception, and would remove reference to
"assault" from the bill as it related to crimes against adults.
Senator McGuire highlighted the law review article and a legal
opinion from Tamara Cook, Director of the Division of Legal and
Research Services.
ADJOURNMENT
Co-Chair Bert Stedman adjourned the meeting at 10:17:03 AM
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