Legislature(1997 - 1998)

02/21/1997 09:03 AM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
    SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE                     
                       February 21, 1997                                       
                           9:03 A.M.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Gary Wilken, Chairman                                                 
 Senator Loren Leman, Vice-Chairman                                            
 Senator Lyda Green                                                            
 Senator Jerry Ward                                                            
 Senator Johnny Ellis                                                          
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 All members present                                                           
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 SENATE BILL NO. 3                                                             
 "An Act authorizing prosecution and trial in the district court of            
 municipal curfew violations."                                                 
                                                                               
  -MOVED SB 3 OUT OF COMMITTEE                                                 
                                                                               
 SENATE BILL NO. 70                                                            
 "An Act defining the offenses of unlawful discharge of a firearm;             
 and relating to the commission of those offenses by minors."                  
                                                                               
  -MOVED SB 70 OUT OF COMMITTEE                                                
                                                                               
 SENATE BILL NO. 66                                                            
 "An Act relating to the collection by victims of restitution from             
 prisoners; relating to the definition of `serious provocation' as             
 a defense to murder; relating to the definition of `incapacitated'            
 for sexual offenses; creating the crime of interfering with a                 
 report of a crime involving domestic violence; relating to the                
 safety of victims, other persons, and the community in setting bail           
 or conditions of release; relating to mental examinations of                  
 victims in criminal prosecutions; relating to the rights of victims           
 of crimes under AS 12.61; relating to access to certain records of            
 the Violent Crimes Compensation Board; relating to medical death              
 investigations; amending Alaska Rules of Criminal Procedure 5 and             
 6, Alaska Rules of Evidence 404 and 615, and Alaska Delinquency               
 Rule 3; and providing for an effective date."                                 
                                                                               
  -SCHEDULED, BUT NOT HEARD                                                    
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 SB 3 - No previous action to record.                                          
 SB 70 - No previous action to record.                                         
                                                                               
 SB 66 - No previous action to record.                                         
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Senator Drue Pearce                                                           
 State Capitol Bldg.                                                           
 Juneau, AK 99811-1182                                                         
  POSITION STATEMENT:   Sponsor of SB 3.                                       
                                                                               
 Mr. Chris Christensen, Staff Counsel                                          
 Alaska Court System                                                           
 820 W 4th Ave.                                                                
 Anchorage, AK 99501-2005                                                      
  POSITION STATEMENT:   Commented on SB 3.                                     
                                                                               
 Mr. Elmer Lindstrom, Special Assistant                                        
 Department of Health and Social Services                                      
 P.O. Box 110601                                                               
 Juneau, AK 99811-0601                                                         
  POSITION STATEMENT:   Commented on SB 3.                                     
                                                                               
 Ms. Margot Knuth, Assistant Attorney General                                  
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
  POSITION STATEMENT:   Commented on SB 3 and SB 70.                           
                                                                               
 Ms. Anne Carpeneti, Assistant Attorney General                                
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
  POSITION STATEMENT:   Commented on SB 3.                                     
                                                                               
 Captain Ted Bachman, Commander                                                
 Administrative Services                                                       
 Alaska State Troopers                                                         
 5700 Tudor                                                                    
 Anchorage, AK 99507                                                           
  POSITION STATEMENT:   Commented on SB 70.                                    
                                                                               
 Mr. Blair McCune, Deputy Director                                             
 Alaska Public Defender                                                        
 900 W 5th, Ste 200                                                            
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Commented on SB 3 and SB 70.                           
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 97-16, SIDE A                                                           
 Number 001                                                                    
                                                                               
         SB   3 MINOR'S CURFEW VIOL. HEARD IN DIST. CT.                       
                                                                              
    CHAIRMAN WILKEN  called the Senate Health, Education and Social            
 Services (HESS) Committee to order at 9:03 a.m. and announced  SB 3           
  to be up for consideration.                                                  
                                                                               
  SENATOR PEARCE,  sponsor of SB 3, said her office became aware this          
 fall of a problem in Juneau when plans for a youth curfew were set            
 aside because the Borough had no avenue to prosecute offenders.               
 This bill seeks to relieve municipalities from the burden of                  
 prosecution and hopefully allow for more effective and expeditious            
 handling of these offenses.  She said there is an interest in                 
 Anchorage in having the same sort of relief.                                  
                                                                               
  SENATOR PEARCE  said currently, juvenile offenses other than                 
 traffic, tobacco, fish and game, parks and recreational facilities,           
 or alcohol violations, are handled through municipal courts where             
 they exist, or are not handled at all because of the Division of              
 Family and Youth Services caseload.                                           
                                                                               
 SB 3 would put a uniform approach in place to handle curfew                   
 violations.  It will enable those communities who so wish to put a            
 curfew ordinance into effect, with the ability to prosecute.  It              
 will mandate that all juvenile curfew violations be handled in                
 District Court.  Alaska Delinquency Rules will not apply and the              
 minor accused of the offense will be charged, prosecuted, and                 
 sentenced in the district court in the same manner as an adult.               
 When a minor is charged, prosecuted, and sentenced for an offense             
 under this subsection, the minor's parent, guardian, or legal                 
 custodian will be present at all proceedings.                                 
                                                                               
 She said there are letters of support from the City and Borough of            
 Juneau Mayor Dennis Eagan, the Mayor's Task Force on Youth in                 
 Juneau, and the Alaska Peace Officers Association.  The                       
 Municipality of Anchorage is very interested and have some                    
 suggestions along these lines.                                                
                                                                               
 She noted the Troopers have a $0 fiscal note, the Court System has            
 a $24,000 fiscal note, and the other fiscal notes are all $0.                 
                                                                               
 Anchorage Assemblyman Joe Murdy said he believes they should                  
 authorize community work as one of the penalties for violating the            
 curfew.  He thought the child might learn from that community                 
 service and also because there are some families who will not pay             
 the fine.                                                                     
                                                                               
 Number 102                                                                    
                                                                               
  SENATOR WARD   asked if the courts cannot already give community             
 service.   SENATOR PEARCE  thought Juneau found it could not even             
 prosecute the cases, but SB 3 would allow them to do so.                      
                                                                               
  SENATOR GREEN  asked how many cities presently have their own court.         
 Mat-Su does not have a local court and so this would not apply to             
 them.   SENATOR PEARCE  believed that was correct.                            
                                                                               
  SENATOR LEMAN  liked the concept, but noted that it requires action          
 to a minor the same as for an adult.  He said the Governor vetoed             
 his car theft bill that was similar because it would be too tough             
 on juveniles.  Is there any assurance that the Governor would find            
 a curfew violation so significant that he would want to prosecute             
 juveniles in an adult court?                                                  
                                                                               
  SENATOR PEARCE  said she had not sought such an assurance.  She              
 thought the Legislature should go forward with the idea, however.             
                                                                               
 Number 168                                                                    
                                                                               
  CHRIS CHRISTENSEN ,     Staff Counsel, Alaska Court System, said the         
 idea of curfew violations for juveniles is a popular one.                     
 Anchorage adopted a municipal ordinance making curfew violations a            
 civil offense rather than a criminal one a little over a year ago.            
 During the first 12 months of Anchorage's system about 1,500 curfew           
 citations to juveniles were issued and a total of 2,000 over the              
 first full year in operation is expected.  Since this is a civil              
 system Anchorage uses a municipal hearing officer to hear the                 
 cases.  The juveniles have the right to appeal the decision, but              
 thus far there has been only one appeal.  Currently the Anchorage             
 system is not having any impact at all on the court system.                   
                                                                               
 Mr. Christensen anticipated that the major municipalities will                
 enact curfew ordinances as a way of dealing with an increase in               
 juvenile crime and gang activity.  SB 3 would allow municipalities            
 to adopt criminal ordinances for which the penalty can be jail                
 time, mandatory community service, or loss of a valuable license.             
 Such ordinances would require the state to provide a jury trial.              
 In addition, SB 3 would allow municipalities to require mandatory             
 court appearances by juveniles.  All citations which are contested            
 will come before the court system, unless the municipality decides            
 to pay for its own municipal hearing officer.                                 
                                                                               
 Based upon statistics generated during the first year of                      
 Anchorage's civil curfew system, the Court System fiscal note                 
 assumes 3,000 citations per year would be generated statewide.                
 Noncontested citations may be applied directly to the                         
 municipalities; however, defendants may contest citations or enter            
 guilty pleas at court.  Thus, many persons subject to this section            
 will come before a district judge and/or pay citations through the            
 court's accounting system.  This note assumes that no municipality            
 will require a mandatory court appearance(probably an incorrect               
 assumption), and that one-third of juvenile citations will be run             
 through the court system; this is the rate at which the courts deal           
 with other municipal citations.  It should be kept in mind that the           
 rate at which juveniles contest citations will depend on the size             
 of fines set by the municipalities in their ordinances.  The note             
 assumes that no municipality will criminalize curfew violations and           
 will not require six-person jury trials.  This last assumption is             
 probably optimistic, in that some municipalities will likely                  
 criminalize repeat offenders or offenses by business owners who               
 allow minors to remain on-premises after curfew, if only to impose            
 community service on the offenders.                                           
                                                                               
  SENATOR PEARCE  said the intent was to give communities tools to             
 deal with juvenile crime.  She understood that there are cost                 
 implications, but hoped SB 3 would save money in the long run.                
                                                                               
  MR. CHRISTENSEN    said statistics show that keeping kids off the            
 streets effectively cuts down on crime.                                       
                                                                               
 Number 335                                                                    
                                                                               
  MS. MARGOT KNUTH,  Assistant Attorney General, said this year one of         
 her principle functions is representing the Governor's Children's             
 Cabinet on legislation that relates to youth and justice.  This               
 last year she worked with the Governor's Conference on Youth and              
 Justice, acknowledging Senator Green's participation, and said she            
 ended up being the reporter for the Conference which produced two             
 reports.  The Conference was a bi-partisan effort to address                  
 juvenile crime.  There is a sense in Alaska that there is a problem           
 that needs to be addressed.  The Conference focused on three                  
 courses of action: prevention, intervention, and prosecution.                 
                                                                               
 One item they heard most from communities was that Alaska is                  
 responding only to the serious juvenile offenders and there have              
 been no swift appropriate consequences for low-level offenders.  It           
 makes sense that limited resources would be applied to only the               
 most serious cases.  However, there is a whole population receiving           
 no punishment which creates a sense that nobody is watching, that             
 it does not matter, and that leads to the possibility of the                  
 escalation of offenses.  The major message from the Conference was            
 that it is appropriate for the state to delegate to communities the           
 ability to respond, in particular, to the low-level offenses.                 
 SB 3 attempts to address "at risk" kids, not serious offenders.               
 Ms. Knuth offered a conceptual amendment to the effect that DHSS be           
 able to delegate to communities the ability to respond to low-level           
 offenses.  She said this concept is embodied in SB 69.                        
                                                                               
 Ms. Knuth said it makes a great deal of sense to let communities              
 take action that seems appropriate and to not necessarily specify             
 what the community should do because they favor different                     
 approaches.                                                                   
                                                                               
 Number 392                                                                    
                                                                               
  SENATOR GREEN  commented that Ms. Knuth said just the opposite of            
 what the bill does which is sending the issue to the state.   MS.             
 KNUTH  responded that this bill does send it to the court system and          
 that is part of the problem rather than the solution.  Mr.                    
 Christensen testified and DHSS will testify that they are over-               
 burdened in most areas already.  There are children who are already           
 being sent to detention for tobacco violations and other minor                
 offenses which creates a problem in terms of very limited space and           
 the need for that space to be used by the more serious offenders.             
                                                                               
 Ms. Knuth said the conceptual amendment would be a diversionary               
 system from court intervention.  She thought the court system                 
 needed to be used and reserved for prosecuting criminals.  At-risk            
 youth need to have a tool in the state system allowing communities            
 to address the youth in an intervention setting.                              
                                                                               
 Number 410                                                                    
                                                                               
  SENATOR WARD  asked what would be the biggest deterrent,                     
 intervention or treating it as a crime.   MS. KNUTH  said there is a          
 deterrent effect to criminalizing behavior, but in terms of                   
 effectively responding to a child's particular circumstances,                 
 intervention is a lot more effective in the long-run.                         
                                                                               
 Nation-wide criminal laws are effective only when the perpetrator             
 believes they will be caught and there will be sanctions.  Simply             
 having a law on the books does not do anything.  That is what the             
 idea of community empowerment is getting to.  When the state is in            
 control there has not been enforcement nor consequences.  If                  
 communities are allowed to respond, a level of commitment will                
 result in a much higher percentage of responses.  This is what the            
 communities want.                                                             
                                                                               
 Number 437                                                                    
                                                                               
  SENATOR PEARCE  said she could see empowering local communities for          
 intervention, if they need statutory authority to do that.                    
 However, that might not get to the whole problem and perhaps, a two           
 tier system might work.  A community would have the authority to              
 intervene with maybe a first curfew offense.  If there is a second            
 offense, the community would have the ability to go to a                      
 prosecution at the state level.  Taken together this might be an              
 even greater deterrent.                                                       
                                                                               
    SENATOR WARD  asked how many juveniles had been incarcerated for th        
 possession of tobacco.   MS. KNUTH  deferred to someone from HESS to          
 answer that.                                                                  
                                                                               
  SENATOR PEARCE  said she had spoken with Judge Froehlich in Juneau           
 who estimated that in Juneau District Court about 75% of the youth            
 who are curfew violators are also violators of the alcohol and                
 tobacco subsection.  Judge Froehlich did not think there would be             
 the pyramid effect because many of the children are the same.                 
                                                                               
 Number 479                                                                    
                                                                               
  MR. ELMER LINDSTROM , Department of Health and Social Services, said         
 that SB 3 would add curfew violations to those offenses placed                
 under the authority of the District Court.  This creates a possible           
 concern that violators who fail to appear in court under a citation           
 may be subject to detention for failure to appear, or contempt of             
 court, or non-compliance with a sentence order.                               
                                                                               
 Mr. Lindstrom said in the calendar year of 1996 there were 68                 
 instances where youth were detained in a youth facility for minor             
 consuming or a tobacco offense.  The most significant impact has              
 occurred here in Juneau at the Johnson Youth Center where                     
 approximately 14% of its total admissions were related to minor               
 consuming and tobacco cases.  The detention staff in each facility            
 assumes the responsibility of transporting the youth to court,                
 maintaining supervision during the court proceedings, and                     
 processing discharges if the youth is released. Although the                  
 statute places authority for these cases outside the department, by           
 default, the department's detention resources are used to                     
 facilitate the judicial process for these youth.                              
                                                                               
 In calendar year 1996, Anchorage police issued over 1,000 curfew              
 citations under municipal ordinance which took effect in January              
 1996.  At present these cases are processed as a civil matter                 
 through an administrative hearing officer.  Transferring these                
 cases to the district court could have a significant impact on the            
 department's detention resources.                                             
                                                                               
 Mr. Lindstrom explained that an undetermined fiscal note was                  
 submitted because it is difficult to estimate what will happen                
 within different municipalities.  The department does not know                
 which ones will put in place a new curfew ordinance, to what extent           
 local police departments will enforce the curfew and the behavior             
 of individual district court judges.  As a cautionary note, there             
 may well be an impact on our already over-crowded detention                   
 facilities.  He supported Ms. Knuth's testimony and her comments on           
 the Governor's Conference on Youth and Justice.                               
                                                                               
  SENATOR WARD  asked about the youths who were recently fined $50             
 here in Juneau for smoking; was it a state or local fine.   MR.               
 LINDSTROM  said that the youths probably received citations issued            
 by the local police department and the fine would be paid to the              
 City and Borough of Juneau.  If the fine is not paid, the youth               
 will have a court appearance; and if the youth fails to appear, the           
 youth may well be cited for contempt.  At that point the youth                
 would become a resident of our youth facility for a period of time.           
                                                                               
  SENATOR WARD  noted that it had a chilling affect on two kids he             
 knows.  He asked if there were figures for the number of minors who           
 were charged with possession of tobacco in Alaska.   MR. LINDSTROM            
 did not have the number with him, but repeated that in 1996 there             
 were 68 detention admissions related to minor consuming or                    
 possession of tobacco.                                                        
                                                                               
 SENATOR WARD  said it appeared to him that Juneau, by far, is                 
 enforcing the $50 fine.  He suggested that fines reduced the                  
 numbers of those at risk for smoking and the same theory would                
 likely work for a curfew on a statewide basis.   MR. LINDSTROM                
 agreed that Juneau has been very aggressive in the last year and              
 certainly Judge Froehlich has been very aggressive in dealing with            
 the tobacco use issue.  However, the method of dealing with these             
 issues has some impacts and one is that it now represents 14% of              
 admissions in the Johnson's Youth Center.  The Governor's                     
 Conference suggests there may be other ways to have an impact that            
 will not have those consequences on our detention facilities.                 
                                                                               
  SENATOR PEARCE  asked what acts actually put them in the Johnson             
 Youth Center.   MR. LINDSTROM  replied that the youth probably did            
 not pay the fine or did not appear in court and were found in                 
 contempt of court.                                                            
                                                                               
  SENATOR PEARCE  asked what power the Conference recommended to               
 delegate to local authorities that would have more impact.  If                
 youth are already ignoring fines or not showing up in courts, being           
 softer on them would not do much good.                                        
                                                                               
  SENATOR GREEN  said this was addressed last year in a bill that              
 pertained to issuing citations to youth for smoking.  Then it was             
 said to be too much trouble and the "kids on the street" were more            
 of a problem.   SENATOR PEARCE  asked if citations are not used, how          
 do 14% of Johnson's admissions come from these youth.   SENATOR               
 GREEN  assumed that happened since the hearings last year.                    
                                                                               
  MS. KNUTH  explained that Juneau is an anomaly in the State and              
 Judge Froehlich is on a one person crusade for juvenile tobacco and           
 alcohol offenders.  He is exceptional in the diligence with which             
 he is pursuing these kids and there is no one else who is throwing            
 children into detention for tobacco violations.  She said there is            
 the question of whether you can put these children into detention             
 without offering them a jury trial on the contempt proceedings.               
 She did not know whether his responsiveness would be able to                  
 continue necessarily.                                                         
                                                                               
  MS. KNUTH  said that when the sanction is available at the court             
 level, it is very effective.  The problem is that it is not being             
 used for most offenders and therefore there is no impact on the               
 behavior in the manner desired.  So the concept of community                  
 intervention is that a much higher percentage of the violators                
 would be held accountable in order to impact the behavior.                    
 She agreed with the need for a stair-step approach to be available.           
 Community work service was raised as an available sanction for                
 this, but Ms. Carpeneti in the Criminal Division, said that                   
 currently in Alaska, if community work service can be ordered, the            
 penalty is sufficient to have the right to a jury trial.                      
                                                                               
   Number 538                                                                  
                                                                               
  MS. ANNE CARPENETI,  Assistant Attorney General, said that last year         
 the zero tolerance for children drinking and driving had                      
 alternative penalties.  The Booth decision holds that the                     
 possibility of community work service did give rise to the right to           
 a jury trial and court appointed counsel.                                     
                                                                               
  MR. CHRISTENSEN  commented that there are two kinds of work service.         
 One is when you give someone a fine with the option of doing work             
 service instead of the fine.  What is talked about here is an                 
 actual order to do the work.  In the eyes of the law ordering                 
 someone to work, essentially involuntary servitude, is considered             
 the legal equivalent of putting them in jail.                                 
                                                                               
  SENATOR LEMAN  wondered if that was consistent with the                      
 constitutional change made in 1994 when restitution was put in                
 place as one of the five conditions for corresponding to victims'             
 rights.  Community work service could be used in the same vein to             
 pay back society.   MS. CARPENETI  did not think that issue had been          
 raised in the Booth case.  She assumed that would be different from           
 restitution, because that is paying back an individual rather than            
 doing work for the good of the community.   SENATOR LEMAN  thought            
 restitution could be in different forms other than money.                     
                                                                               
  CHAIRMAN WILKEN  indicated the need to act on the amendment before           
 the committee.  If action on the Health and Social Service                    
 component is desired, that could be considered in Judiciary.                  
                                                                               
 Number 500                                                                    
                                                                               
  CAPTAIN TED BACHMAN , Alaska State Troopers, said he was available           
 to answer questions.                                                          
                                                                               
  MR. BLAIR MCCUNE,  Deputy Director, Alaska Public Defenders,                 
 identified municipal prosecutions as one of the impacts on the                
 agency which he expected to be minimal.  In most areas,                       
 municipalities contract with private attorneys who represent                  
 children or adults.  If the prosecution is in Superior Court for a            
 juvenile delinquency action, he would represent the child even if             
 a municipal ordinance is at issue.  Currently, the curfew                     
 violations in Anchorage are handled as civil penalties and as Ms.             
 Knuth and Ms. Carpeneti mentioned, it is difficult to say just what           
 civil penalties are.                                                          
                                                                               
 Number 478                                                                    
  SENATOR WARD  moved to pass SB 3 from committee.   SENATOR LEMAN             
  objected.  Senator Leman wanted to include with a note to the                
 Judiciary Committee to consider the issues discussed today.  He,              
 then, removed his objection.  There were no further objections and            
 is was so ordered.                                                            
             SB  70 UNLAWFUL DISCHARGE OF A FIREARM                           
                                                                              
  CHAIRMAN WILKEN  introduced  SB 70  as the next order of business.           
                                                                               
  SENATOR DONLEY,  sponsor, said SB 70 addresses a gap in our current          
 criminal justice laws.  Currently it is only a misdemeanor in                 
 Alaska to discharge a firearm into a building, even if there's a              
 high possibility that someone is living in that building.  SB 70              
 elevates that particular misuse of a firearm to a felony.  Under              
 existing law a felony assault requires proving the person knew                
 someone was inside the structure.                                             
                                                                               
 The first section exempts peace officers from the scope of this               
 legislation.  The second section restructures the unlawful                    
 discharge of firearm laws.  Senator Donley explained that the word            
 "building" and not just "dwelling" is necessary in order to cover             
 the circumstances of someone shooting into a store or a place where           
 people work.  The real change appears on page 2, lines 1-4 that               
 makes unlawful discharge of a firearm in the second degree a Class            
 B felony.                                                                     
                                                                               
 Senator Donley acknowledged that when statutes are amended,                   
 especially in criminal law, there are a lot of other impacts.  He             
 tried to look at othere areas where it would be appropriate to                
 modify due to the existence of this new crime.  One that seemed               
 appropriate to him was the most serious felony definition which is            
 the trigger for the "three strikes, you're out."  It seems                    
 appropriate that shooting a firearm into a building or dwelling               
 where someone may be should fall under a serious felony in the                
 first degree where there is risk to people.                                   
                                                                               
 Section 4 is a list of all the misdemeanors and felonies that                 
 disqualify people from having a concealed weapon permit and he felt           
 shooting into a building that probably has people in it should be             
 on the list.  Section 5 deals with juveniles and is the reason                
 SB 70 is in the HESS Committee.  This section adds unlawful                   
 discharge of a firearm in the first and second degree to the list             
 of felonies that create an automatic waiver situation for juveniles           
 over 16 years of age.                                                         
                                                                               
 Senator Donley believed these are very serious crimes and seem to             
 parallel the existing provision of arson in the first degree which            
 has the imminent threat to safety of the people involved.                     
                                                                               
 Section 6 is conforming also with the existing law.                           
 Number 356                                                                    
                                                                               
  SENATOR WARD  asked him to comment on the cost of the bill.   SENATOR        
 DONLEY  responded that due to the automatic waiver provisions in the          
 legislation, it is a frequent policy of the Department of                     
 Corrections that any time the department see a juvenile waiver bill           
 they request new facility.  The estimates for the actual number of            
 juveniles who would be waived is approximately two per year.  These           
 are pretty bad kids and there are not a lot of them. Others who               
 would be waived under the Class B provision numbered about six, for           
 an impact of possibly eight additional juveniles per year.  The               
 Department of Corrections is asking for a new 34 bed facility to              
 deal with that number.  Senator Donley acknowledged the need for              
 additional beds in Alaska in both the juvenile system and the adult           
 correctional system; but he thought the issue of overcrowding                 
 should be dealt with separately.                                              
                                                                               
 Number 324                                                                    
                                                                               
  CHAIRMAN WILKEN  asked him to explain a possible automatic waiver.           
  SENATOR DONLEY  explained that two or three years ago the                    
 legislature adopted an automatic waiver for juveniles over the age            
 of 16 who commit unclassified or Class A felony crimes against a              
 person.  It was decided that as a policy matter that these youth              
 should automatically be treated as adults, if the youth are charged           
 with those serious crimes.  Included in that category is arson in             
 the first degree.  This legislation includes in that category                 
 unlawful discharge in the first degree which includes drive-by                
 shootings and unlawful discharge in the second degree which is                
 shooting in a building with a reckless disregard for the risk that            
 the building is occupied.                                                     
                                                                               
  CHAIRMAN WILKEN  asked who decides if the building is occupied.              
  SENATOR DONLEY  stated that it is an automatic waiver if the person          
 is over 16 and is charged with these crimes.  It becomes a                    
 possibility that the youth would be waived to adult court if under            
 16 and the youth fail, by a preponderance of evidence, to indicate            
 that they are amenable for treatment by their age of majority.                
                                                                               
  MS. KNUTH,  Department of Law, again appeared representing the               
 Governor's Childrens' Cabinet.  An automatic waiver was one of the            
 tools that was discussed by them as a means of responding to                  
 escalating juvenile crime.  The Conference concluded that                     
 increasing the automatic waiver offenses is inappropriate and  a              
 dual sentencing option was recommended.  In dual sentencing a                 
 juvenile receives both the juvenile sentence disposition that the             
 judge believes is appropriate for that offense and simultaneously             
 receives an adult sentence for the offense.  If the juvenile                  
 complies with the terms of the juvenile sentence, that's all that             
 happens.  If the juvenile commits a new felony offense or does not            
 comply with the terms and conditions of the juvenile sentence, then           
 the juvenile can be brought back before the court and have the                
 adult sentence imposed.  Therefore instead of making a decision at            
 the outset of basically giving up on the kid, it sets up a                    
 situation where the responsibility for what happens with the                  
 juvenile is placed back with the juvenile.                                    
                                                                               
 Ms. Knuth said that Senator Donley's bill has two automatic waiver            
 offenses that are under consideration.  One is the unlawful                   
 discharge of a firearm in the first degree which is a Class A                 
 felony and the other is the unlawful discharge in the second                  
 degree.  She thought it was a policy call within this body whether            
 unlawful discharge of a firearm in the first degree is so like                
 crimes against a person in arson that it is appropriate for it to             
 be on the automatic waiver list.  What is of concern is unlawful              
 discharge of a firearm in the second degree because that is just a            
 Class B felony offense and there are no automatic waiver provisions           
 for any Class B felony offenses.  That would be a new direction to            
 turn to in automatic waiver.  She suggested that offense would be             
 more appropriate for the dual sentencing option in the Governor's             
 bill.                                                                         
                                                                               
  SENATOR DONLEY  agreed with her analysis, but he had not been sold           
 on the dual sentencing concept.  He thought an automatic waiver was           
 appropriate, even though it is listed as a Class B felony, because            
 it is such a serious crime to discharge a firearm towards a                   
 building when there is a high probability of people being inside.             
 The distinction between the first and second degree is whether or             
 not you are in a vehicle when you shoot at that building.  It seems           
 that the actual threat to people is the same between the two.                 
                                                                               
  SENATOR LEMAN  said one of the other options would be to make a              
 walk-by shooting equivalent to a drive-by shooting.                           
                                                                               
  MS. KNUTH  noted that currently first degree offenses are committed          
 under circumstances manifesting substantial and unjustifiable risk            
 of physical injury to a person which is a higher standard than we             
 now have in the second degree offense which is committed with                 
 reckless disregard for the fact that the building is occupied.  You           
 would lose some class of offenses if you were to elevate it to the            
 first degree.  There would be some conduct that could not be                  
 prosecuted and as a felony it would fall back down to the current             
 misdemeanor level.                                                            
                                                                               
  SENATOR DONLEY  said he thought it was up to the Committee to                
 decide.  He tried to find other areas of the statute to make                  
 consistent with this.                                                         
                                                                               
  CAPTAIN TED BACHMAN , State Troopers, said he wanted to comment on           
 Section 2 which creates the new crime.  He supported any tools                
 available to stop what seems to be an ever increasing incidence of            
 drive-by shootings in urban areas and other criminal uses of                  
 firearms.  His only reservation about this section is that all the            
 crimes that are created are presently covered by existing statute.            
 He thought it was much simpler to not create new crimes, but if               
 there are new provisions, to add those to existing misconduct                 
 involving weapons crimes.                                                     
                                                                               
  MR. MCCUNE,  Public Defenders Office, favored a two-tier approach.           
 Whether it is appropriate to make unlawful discharge of a firearm             
 in the first or second degree is a policy decision.  He asked the             
 committee to consider whether it was appropriate to make an                   
 automatic waiver or whether it should be considered in conjunction            
 with the other legislation.  Mr. McCune was concerned with how the            
 new Section 2 would fit into the existing assault statutes.                   
 Assault in the third degree says if a person recklessly places                
 another person in fear of imminent serious physical injury by means           
 of a dangerous instrument, they are guilty of a Class C felony and            
 he was not sure how making it a Class B would fit in.  He was also            
 concerned with the "three strikes" provision.                                 
                                                                               
  SENATOR DONLEY  responded that assault in the third degree is                
 shooting in the direction of somebody.  There has to be intent and            
 a victim.  That is why he wants to raise shooting at a structure              
 when there is a probability that someone is in it to a felony.                
                                                                               
  SENATOR LEMAN  moved to pass SB 70 from committee with individual            
 recommendations and with the accompanying fiscal notes.   SENATOR             
 ELLIS  asked if the committee was going along with the way the bill           
 was written in relation to the juvenile aspect of things.     CHAIRMAN        
 WILKEN    said he did not understand the trade-offs between first and         
 second degree and how they lose in prosecution.   SENATOR LEMAN  said         
 he thought that even though it is a Class B felony which is a new             
 category, it is serious enough to elevate it, in his mind, to the             
 automatic waiver level.  He noted that he served on the conference            
 committee that dealt with the automatic waiver bill.  He preferred            
 to see the bill stay the way it is.                                           
                                                                               
  SENATOR ELLIS  asked Senator Donley to go through the burden of              
 proof that is placed on juveniles to prove if they are under the              
 age of 16 they are amenable to treatment.  He thought this bill               
 deserved more discussion.                                                     
                                                                               
  TAPE 97-17, SIDE A                                                           
 Number 001                                                                    
                                                                               
  SENATOR DONLEY  said in the past it was very difficult for the State         
 to prove that someone will not change.  The problem worsened when             
 the courts determined a youth could not be forced to undergo any              
 kind of examination because that might violate the youth's fifth              
 amendment right against self incrimination.  Now there are judges             
 who have to make decisions about which juveniles could rehabilitate           
 themselves by the time they are 18.  Therefore the bill reversed              
 the presumption, putting it on the person who committed the                   
 criminal act, only for the most serious ones, to show that the                
 youth can be rehabilitated before reaching the age of majority.               
 Because of that, it is in the juvenile's own self interest to get             
 a psychological examination, to talk to counselors, to talk to                
 potential advisors, to talk to the judge about how it is possible             
 to help the youth become rehabilitated.                                       
                                                                               
 That is what is meant on page 4 of the bill.  If the juvenile is              
 under age 16 and commits an unclassified or Class A felony that is            
 a crime against a person, then, under existing law, the burden                
 switches to the juvenile who committed the crime.  The state                  
 provides a defense attorney and an expert witnesses.  This                    
 legislation includes in that list of where that presumption would             
 reverse unlawful use of a firearm in the first and second degree              
 which are the drive-by shootings and the shooting at building where           
 there is disregard for risk that it might be occupied.                        
                                                                               
  CHAIRMAN WILKEN  said he appreciated the clarification.  He asked if         
 there were any objections to passing it out of committee.  There              
 were none and it was so ordered.                                              
                                                                               
                 SB  66 CRIMES & CRIME VICTIMS                                
                                                                              
   CHAIRMAN WILKEN  introduced  SB 66  as the final order of business          
 before the committee.                                                         
                                                                               
  MS. CARPENETI,  Criminal Division, Department of Law, said in 1994           
 voters of Alaska overwhelmingly adopted the victims rights                    
 amendments, Article 1, Section 24 of our Constitution.  It is very            
 specific in setting forth criminal rights and procedures.  It also            
 sets forth rights of victims of crime.  Since that time the                   
 Criminal Division has learned of instances where rights guaranteed            
 in that particular provision have not been uniformly applied to               
 victims in Alaska.  So the Governor's office started an                       
 investigation that resulted with SB 66.                                       
                                                                               
 Ms. Carpeneti said one provision that a number of victims are                 
 concerned with is the right to be present at every preceding where            
 a juvenile delinquent or a criminal defendant has a right to be               
 present.  One of the rationales for the denial is the fact that               
 courts say it should be defined in law which this bill does.  In              
 terms of the right to restitution, it adopts an amendment to our              
 civil statutes dealing with when a person can levy on an order of             
 restitution to allow a victim to levy on assets held by a criminal            
 defendant outside the criminal institution.  At present the law               
 allows a victim to levy on an account held by a prisoner inside an            
 institution, but not outside.                                                 
                                                                               
 Section 6 of the bill amends the definition of serious provocation            
 for purpose of the heat-of-passion defense to murder in the first             
 degree and murder in the second degree.  The heat-of-passion                  
 defense usually allows a charge of murder in the first and second             
 degree to be reduced to manslaughter.  There have been a few                  
 instances where courts allow an instruction in a criminal trial               
 allowing an imperfect or mistaken belief in the need for self                 
 defense to be considered serious provocation and then allowing the            
 jury to consider it as a heat-of-passion defense.  In 1980 the law            
 was amended to disallow that possibility.  The defense of self                
 defense when it's a reasonable defense is a complete defense to               
 murder if that can be established.  A mistaken belief in the need             
 for self defense is not a defense to a homicide and should not be             
 allowed in through the back door as being considered serious                  
 provocation.                                                                  
                                                                               
  CHAIRMAN WILKEN  interrupted Ms. Carpeneti saying he wanted the              
 entire committee to hear what she had to say and asked her if she             
 could come back Monday.  Ms. Carpeneti agreed.                                
   There being no further business before the committee, the meeting           
 was adjourned at 10:55 p.m.                                                   
                                                                               

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