Legislature(1997 - 1998)
02/09/1998 01:40 PM Senate JUD
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* first hearing in first committee of referral
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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.
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