Legislature(1997 - 1998)

02/09/1998 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                       
                   February 9, 1998                                            
                      1:40 p.m.                                                
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Robin Taylor, Chairman                                                 
Senator Mike Miller                                                            
Senator Sean Parnell                                                           
Senator Johnny Ellis                                                           
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Senator Drue Pearce, Vice-Chairman                                             
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SENATE BILL NO. 218                                                            
"An Act relating to the crime of murder and to murder of children."            
                                                                               
     -HEARD AND HELD                                                           
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
No previous action to record.                                                  
                                                                               
WITNESS REGISTER                                                               
                                                                               
Senator Rick Halford                                                           
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Sponsor of SB 218                                       
                                                                               
Mr. Dean Guaneli                                                               
Department of Law                                                              
PO Box 110300                                                                  
Juneau, Ak 99811-0300                                                          
   POSITION STATEMENT: Commented on SB 218                                     
                                                                               
Mr. Blair McCune                                                               
Alaska Public Defender                                                         
900 West 5th Avenue #200                                                       
Anchorage, Ak 99501                                                            
   POSITION STATEMENT: Commented on SB 218                                     
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-6, SIDE A                                                              
Number 001                                                                     
                                                                               
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                
order at 1:40 and noted the presence of Senators Miller and Ellis.             
He brought up SB 218 as the first order of business.                           
           SB 218 - CRIMES OF MURDER & CHILD MURDERS                           
                                                                               
SENATOR HALFORD, sponsor of SB 218, came forward to present the                
bill. He said his office had just received a committee substitute              
work draft that incorporated several changes into the bill.                    
                                                                               
SENATOR MILLER moved the committee to adopt the work draft (version            
F dated 2/9/98) for discussion purposes. Without an objection, the             
work draft was adopted.                                                        
                                                                               
SENATOR PARNELL asked if the sponsor could provide a synopsis of               
the original bill.                                                             
                                                                               
SENATOR HALFORD stated that the original bill deals with the                   
minimum treatment of crimes that result in the murder of a child.              
It also increases penalties for crimes less than murder against                
children. It imposes a 20-year minimum mandatory sentence for                  
murder and a 10-year minimum mandatory sentence for manslaughter               
when the victim is less than 16 years old. He said this bill is                
consistent with the Administration's package of legislation on the             
same topic.                                                                    
                                                                               
CHAIRMAN TAYLOR asked how the bill dealt with negligent homicide of            
a child. He asked if the sentence was accelerated only in the case             
that a previous offense had occurred. He referred to section two of            
the bill. SENATOR HALFORD agreed that sentencing was accelerated               
when the perpetrator had been convicted of a previous crime                    
involving a child under 16.                                                    
                                                                               
MR. BLAIR MCCUNE, Alaska Public Defender, gave testimony from                  
Anchorage via teleconference. He said his office had submitted an              
asterisk fiscal note on the bill because it was difficult to say               
what type of fiscal impact would be felt. He said the bill would               
increase the severity of some cases but not increase the overall               
case load. He spoke generally about murder in the first degree,                
saying traditionally malice aforethought or premeditation had to be            
proved but that standard had been lowered to intentional killing               
and he says section three of this bill goes a bit farther. He                  
wanted the Legislature to be aware they were moving away from the              
traditional definition of first degree murder. He expressed concern            
that section one of the bill, a felony murder provision, and                   
section two, sexual abuse of a minor, might already be covered in              
the traditional felony murder section and perhaps leave too much               
discretion for a prosecutor to charge someone under either                     
subsection. He said this may result in an equal protection problem             
if the charging authority has too much discretion to choose between            
similar offenses. He said this was merely a technical thing that               
the committee might want to look at.                                           
                                                                               
MR. DEAN GUANELI, representing the Department of Law, came forward             
and said that this is a good bill. He said this bill fills holes in            
the current laws covering murder of children. He believes it is now            
a better bill as it goes further and also deals with manslaughter              
and criminally negligent homicide. He concluded that it was                    
appropriate these things are covered under the same bill as the                
mental state involved in these crimes is very similar. He had some             
suggested changes and presented them to the committee.                         
                                                                               
MR. GUANELI suggested some language be deleted from section one. He            
said the phrase "knowingly inflicts serious injury" might result in            
the situation where the person had to know they were inflicting                
serious physical injury rather than just commit a crime which                  
results in serious physical injury. MR. GUANELI said it would be               
difficult to prosecute under that statute. He suggested the                    
substitution of something like "knowingly engages in conduct                   
directed toward a person under 16 . . . resulting in serious injury            
due to recklessness or negligence."  He thinks this would be easier            
to prosecute.                                                                  
                                                                               
SENATOR PARNELL asked MR. GUANELI if he had specific language to               
propose and MR. GUANELI said he did. He said after the word                    
knowingly on  page 1 line 9, insert: "engages in conduct directed              
toward a child under 16, and the person recklessly or with criminal            
negligence inflicts . . . " He said this would apply only when a               
person is aware that their conduct is directed toward a child.                 
                                                                               
SENATOR PARNELL asked what the law is now regarding reckless                   
conduct. He asked if extreme indifference is the same thing as                 
reckless and MR. GUANELI replied that extreme indifference is a                
higher mental state than recklessness, requiring more proof. He                
said if extreme indifference to human life could be proved that                
could be charged as second degree murder; if reckless conduct                  
caused death that would be manslaughter. He added that this was not            
an easy thing to prove but with evidence of a prior history of                 
assault, a case could be elevated to second degree murder.                     
                                                                               
MR. GUANELI's second recommended change was in section 4 of the                
work draft on page 3. He said as the bill is currently, if the                 
state can prove by clear and convincing evidence that it was a                 
parent or guardian who committed the offense, or the crime was an              
assault, the minimum mandatory sentence would be twenty years as               
opposed to the present mandatory minimum of five years. However, on            
line 20 where it refers to clear and convincing evidence of                    
neglect of a duty of care, MR. GUANELI thinks the important part of            
this is that the person is the parent or legal guardian of the                 
child. He suggested taking out "neglect of a duty of care," and                
simply require that the state prove by clear and convincing                    
evidence that the person is a legal guardian or a person occupying             
a position of authority.                                                       
                                                                               
SENATOR PARNELL asked why the standard of evidence was "clear and              
convincing," rather than "reasonable doubt" and MR. GUANELI replied            
that it is a sentencing provision used to show aggravating factors             
during the sentencing phase. MR. GUANELI stated his last suggested             
change would be by striking the phrase "by an assault" in line 22              
and inserting "by committing a crime against a person under AS                 
11.41", which covers a range of offenses. He believes this would               
also cover all the situations the sponsor wanted to include.                   
                                                                               
SENATOR ELLIS asked if this bill was going to be moved today and               
CHAIRMAN TAYLOR said he would like to move it if the changes were              
minor. He added that the bill carried a fiscal note, requiring a               
finance hearing.                                                               
                                                                               
MR. GUANELI conferred with the sponsor and suggested he give                   
written changes to CHAIRMAN TAYLOR but CHAIRMAN TAYLOR preferred he            
read the changes into the record for clarity and out of                        
consideration to the committee secretary. MR. GUANELI began with               
page 3, line 19, and suggested deletion of everything after the                
word "defendant" down through "to the child as" on line 21 and                 
insertion of "(1) was" so it would read: "defendant (1) was a legal            
guardian or a person occupying a position of authority in relation             
to the child." Next, on line 22 after the Roman numeral II, MR.                
GUANELI suggested the committee strike the phrase "by an assault"              
and insert "caused the death of the child by committing a crime                
against a person under AS 11.41". This specific wording would                  
accomplish the changes he previously described.                                
                                                                               
CHAIRMAN TAYLOR moved the changes described above by MR. GUANELI as            
amendment #1. Without objection, these changes were adopted.                   
                                                                               
MR. GUANELI said, as good as this bill is, it is important to know             
that child homicides are a small fraction of the crimes committed              
against children in the state. He said these are difficult cases to            
prevent but that the Governor's bill addresses the remainder of                
more preventable crimes against kids. He stated that early                     
identification of at-risk children and quick action to care for                
them are appropriate provisions. He said the current system needs              
change in several areas and he hopes the committee will carefully              
consider the remainder of the Governor's bill.                                 
                                                                               
CHAIRMAN TAYLOR expressed his regret that he was unable to attend              
the Health, Education and Social Services Department audit by the              
Finance committee but was shocked to learn that the front-line                 
position of social worker requires a high school diploma. He thinks            
these people are making very important decisions and he would hope             
to see them with more education and background and even experience             
raising their own family. He assured MR. GUANELI that the committee            
would look at this question further.                                           
SENATOR HALFORD agreed with MR. GUANELI and believed the committee             
needed to adopt MR. GUANELI'S first suggested change.                          
                                                                               
CHAIRMAN TAYLOR clarified the first suggestion as, page 1 line 10,             
inserting the words (after knowingly): "...engages in conduct                  
directed toward a child under the age of 16, and the person                    
recklessly or with criminal negligence . . . "  CHAIRMAN TAYLOR                
moved this as amendment #2 and, without objection, the amendment               
passed.                                                                        
                                                                               
CHAIRMAN TAYLOR asked if MR. MCCUNE'S concerns had been taken care             
of. MR. GUANELI said he did not believe so. He said one of the                 
reasons it is appropriate to amend the second degree murder                    
statutes to incorporate sexual abuse of a minor is due to a                    
revision of the criminal code in 1980. When the code was revised,              
rape and sexual abuse of a minor were split apart and the felony               
murder statutes were not revised to cover both. He answered MR.                
MCCUNE'S question about prosecutorial discretion by saying there is            
a differentiation between sexual abuse of a minor in the first                 
degree and second degree that could apply also to crimes against 16            
or 17-year-old victims. He concluded that he was not terribly                  
concerned with the prosecutorial discretion.                                   
                                                                               
MR. BLAIR MCCUNE responded that he agreed with MR. GUANELI's second            
suggestion responding to the recodification of the offense of                  
sexual assault. He is, however, concerned that the legislature be              
careful in outlawing one type of conduct in two very similar                   
offenses.                                                                      
                                                                               
SENATOR ELLIS mentioned that he appreciates CHAIRMAN TAYLOR's                  
pledge to give close consideration to the Governor's bills. He said            
the Governor's bills are a comprehensive approach to the problem               
and the bill before them is an important piece in that puzzle.                 
                                                                               
SENATOR MILLER moved CSSB 218(JUD) as amended from committee with              
individual recommendations. Without objection, the bill moved and              
with no further business to come before the committee, CHAIRMAN                
TAYLOR adjourned the meeting at 2:15p.m.                                       
                                                                               
                                                                               

Document Name Date/Time Subjects