Legislature(1997 - 1998)
02/21/1997 09:03 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.