Legislature(1999 - 2000)

02/03/1999 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                                 
                  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                                                                   
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                                                                          
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                                                               
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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