Legislature(1999 - 2000)
02/03/1999 01:30 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 3, 1999
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5
"An Act relating to the crime of misprision of felony."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 5 - No previous action to report.
WITNESS REGISTER
Senator Drue Pearce
Prime Sponsor SB 5
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 5
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99801-0300
POSITION STATEMENT: Commented on SB 5
Mr. Blair McCune
Deputy Director
Alaska Public Defender Agency
900 West 5th suite 200
Anchorage, AK 99501
POSITION STATEMENT: Commented on SB 5
ACTION NARRATIVE
TAPE 99-6, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:32 and announced SB 5 as the first and only order of
business.
SB 5 - MISPRISION OF FELONY
SENATOR DRUE PEARCE, prime sponsor of SB 5, explained the bill
arose out of a case in Nevada where a seven-year-old girl was raped
and murdered. The definition of misprision is to witness or to have
knowledge of a felony crime against a person and fail to report
that crime immediately to a peace officer or a law enforcement
agency. SENATOR PEARCE said this is sometimes referred to as "the
Good Samaritan Law."
SB 5 makes it a class C felony if the unreported crime is a violent
felony (as described in AS 11.41) or first degree arson. If the
unreported crime is any other felony offense, it is a class A
misdemeanor.
SENATOR PEARCE recognized that the focus of SB 5 may need to be
narrowed and perhaps the bill should apply only to the witnessing
of crimes such as murder, kidnaping, fist degree assault and arson
in the first degree. However, SENATOR PEARCE would also like the
bill to apply to sexual crimes against children.
SENATOR PEARCE noted there has been concern about the word
"immediate" within the bill and suggested it might be changed to
require the reporting of crimes "within a reasonable time."
SENATOR PEARCE also asked the committee to consider including in
the bill a defense for a battered wife who does not report battery
against her child out of fear for her life.
SENATOR PEARCE concluded SB 5 creates a tool that should be
available to law enforcement. SENATOR PEARCE said SENATOR DONLEY
had agreed to work on the legal issues of this bill in
subcommittee.
Number 082
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law, testified in support of the idea behind the bill
as it applies to the most serious crimes. However, the bill could
cause problems if applied to other types of crimes and may have
unintended negative consequences. MS. CARPENETI explained that the
current sponsor substitute covers property and drug crimes. Under
this bill, someone who signs a neighbor's Permanent Fund dividend
application with the knowledge their neighbor has been away for
longer than the allotted amount of time would be guilty of a class
A misdemeanor. Also, a parent of a child with a serious drug habit
would be guilty if they did anything other than report their child
to the police. MS. CARPENETI concluded it is simply not always
best for the situation to compel a person to report a crime, and
she cited rape victims as an additional example. Even in the case
of sexual abuse of a child, parents should have options for
treatment and not be mandated to report to law enforcement.
MS. CARPENETI proposed that even in cases of other serious crimes,
a law like this may affect the prosecution of perpetrators by
making witnesses unwilling to offer testimony at a later date or to
correct inaccuracies in their initial testimony.
MS. CARPENETI stated a concern that SB 5 may create some imbalances
when compared with other statutes. There is a law on the books
right now that makes it a class C felony to "hinder prosecution in
the first degree." This means anyone helping a felon hide his or
her crime, avoid criminal responsibility, or profit from his or her
crime, is guilty of a C felony. This crime seems more serious than
misprision to MS. CARPENETI. MS. CARPENETI concluded this is a good
idea for more serious crimes but bears examination for others.
Number 168
SENATOR HALFORD recalled a television documentary he had recently
seen which told the story of an 8-year-old boy and his mother who
were murdered as a result of the boy being a witness to a prior
murder. SENATOR HALFORD said this boy was a victim of the judicial
system and to make a felon out of someone who does not believe the
State can protect them is terrible, and compounds the failure of
the criminal justice system to protect victims and witnesses.
SENATOR HALFORD agrees with the intent but sees "awful problems
with implementation."
MS. CARPENETI agreed with SENATOR HALFORD. SENATOR HALFORD stated
that the Nevada case was horrible and there should be some
accountability, but, even for a good cause, SENATOR HALFORD thinks
this bill goes too far.
Number 208
MS. CARPENETI again agreed with SENATOR HALFORD and expressed her
hope that everyone will do the right thing and report crimes but
suggested they should proceed cautiously with this legislation. MS.
CARPENETI observed that this law would criminalize common teenage
behavior.
SENATOR TORGERSON asked MS. CARPENETI if including an act of
concealment within the definition of SB 5 would be a better
approach. MS. CARPENETI replied this would narrow the scope of the
bill a bit but explained there is a similar law in statute now.
Number 226
SENATOR DONLEY asked if the bill only included unclassified
felonies and arson in the first degree whether it would have
covered the Nevada case. MS. CARPENETI did not know enough about
the case to answer definitively, but she believed it would have.
She told SENATOR DONLEY she would find out.
SENATOR HALFORD said he would like to know of any other ways to
attack this that might not create so many problems. He agreed the
restriction of misprision to unclassified felonies is less
problematic, but said even in our large cities citizens may be
endangered by reporting crimes that they may not be able to stop.
SENATOR HALFORD proposed adding a defense for people who do not
report crimes out of fear. He asked MS. CARPENETI to prepare a list
of existing law that could be used to prosecute this type of case.
Number 254
MS. CARPENETI replied that she would be happy to; she listed the
prohibition of solicitation of crime, aiding and abetting the
commission of a crime and other laws that prohibit this type of
behavior that occurs after the commission of a crime. MS. CARPENETI
remarked she believes that the sponsor is trying to get at the
person who merely witnesses a crime or learns about it after and
does not report it. This, she believes, cannot be criminalized.
SENATOR HALFORD asked what constitutes the crime of accessory
before the fact. MS. CARPENETI replied it requires knowledge of a
crime before the fact and some degree of complicity.
Number 270
SENATOR DONLEY suggested dropping the penalty for misprision to a
misdemeanor in order to fit with existing statute, limiting the
crime of misprision to unclassified felonies and first degree
arson, and adding an affirmative defense for people who do not
report crimes due to perceived personal danger.
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender
Agency, spoke to the problems he sees with the bill. He directed
attention to a handout from a legal textbook. The text cited a
similar statute adopted in South Dakota and MR. MCCUNE argued that
this law would only affect witnesses "pure as the driven snow," as
a person with any degree of culpability would be able to invoke the
privilege against self-incrimination afforded by the U.S.
Constitution. MR. MCCUNE said this privilege against self-
incrimination "would kind of trump this statute."
MR. MCCUNE said other privileges, such as the husband/wife
privilege might also apply to cases like this. MR. MCCUNE stated
there are statutes listed in AS 11.56 that deal with this type of
crime, and "accessory" and "complicity" statutes would also apply,
as well as the recently passed "conspiracy" laws.
Number 339
CHAIRMAN TAYLOR commented he was struck by a phrase used in the
article cited by MR. MCCUNE:
"While it may be the duty of a citizen to accuse every
offender and to proclaim every offense which comes to his
knowledge, the law which would punish him in every case
for not performing this duty is too harsh for man."
CHAIRMAN TAYLOR observed this quotation comes from a centuries-old
document; he proposed that misprision is a question that has been
under debate for quite some time.
CHAIRMAN TAYLOR announced he would set up a working group to
further consider SB 5.
Number 350
SENATOR HALFORD observed that it seems the privilege against self-
incrimination would be absolute and a person accused of misprision
would only have to invoke this privilege "and from there on, it is
silence." He concluded SB 5 may not work in the face of this
privilege, saying an accused person would not even have to invoke
the privilege in front of a jury, but he or she could simply not
answer questions. MR. MCCUNE agreed with SENATOR HALFORD. He said
if a reasonable possibility of self-incrimination exists, the
privilege can be asserted.
SENATOR HALFORD said he would be interested in reviewing cases of
any successful prosecution, anywhere in the U.S., under this type
of statute in the last decade.
CHAIRMAN TAYLOR, noting there were no further witnesses to testify,
appointed a subcommittee consisting of SENATOR DONLEY, SENATOR
HALFORD and himself, CHAIRMAN TAYLOR. He said the matter would be
back before the committee within a few weeks.
With nothing further to come before the committee, CHAIRMAN TAYLOR
adjourned at 2:00. p.m.
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