Legislature(1999 - 2000)
03/08/1999 01:35 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 8, 1999
1:35 p.m.
MEMBERS PRESENT
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
Senator Robin Taylor, Chairman
COMMITTEE CALENDAR
SENATE BILL NO. 25
"An Act relating to sentences for misdemeanors."
-HEARD AND HELD
SENATE BILL NO. 26
"An Act relating to providing false information or reports to a
peace officer."
-HEARD AND HELD
SENATE BILL NO. 77
"An Act relating to civil actions by municipalities and certain
public corporations and prohibiting certain civil actions by them
against firearms or ammunition manufacturers and dealers."
-SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
SB 25 - No previous action to report
SB 26 - No previous action to report
SB 77 - No previous action to report
WITNESS REGISTER
Mr. Mike Pauley
Staff to Senator Loren Leman
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 26 and SB 25
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 26 and SB 25
Ms. Margot Knuth
Assistant Attorney General
Department of Corrections
240 Main St. suite 700
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 26 and SB 25
Mr. Blair McCune
Deputy Director
Alaska Public Defender Agency
900 West 5th #200
Anchorage, AK 99501
POSITION STATEMENT: Commented on SB 26 and SB 25
Mr. David Hudson
Alaska State Troopers
5700 East Tudor Road
Anchorage, AK 99507
POSITION STATEMENT: Supported SB 26 and SB 25
ACTION NARRATIVE
TAPE 99-16, SIDE A
Number 001
VICE-CHAIRMAN RICK HALFORD called the Judiciary Committee meeting
to order at 1:35 and announced SB 26 would be the first item for
consideration.
SB 26-FALSE INFORMATION/REPORT TO POLICE
MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 26. SB
26 creates a new crime of giving false information to a police
officer. Under current law, a person is guilty of a class A
misdemeanor for giving false information to a police officer with
the intent of implicating another in a crime. SB 26 would make it
a class A misdemeanor to give false identity information to a
police officer while under arrest or detention for a misdemeanor
offense. Any false identity information may hinder justice
regardless of intent.
MR. PAULEY explained SB 26 also creates a class C felony for
providing false identity information while under arrest or
detention for a felony offense.
MR. PAULEY said the bill emphasizes the gravity of providing false
identity or information to a peace officer in an attempt to avoid
prosecution. The severity of this crime is tantamount to physical
escape and should be punished accordingly, with more severe
punishment for more severe offenses. He also claimed false
information can derail investigations to the point they are stale
and cannot move forward.
MR. PAULEY concluded by saying SB 26 is supported by the Anchorage
Peace Officers Association, the Victims for Justice and the Alaska
Association of Chiefs of Police.
Number 050
SENATOR HALFORD asked if the bill applies only to a person who is
under arrest or detention or being served a warrant. MR. PAULEY
agreed it does. SENATOR HALFORD asked if the bill also covers
people being issued a citation. MR. PAULEY replied it does, but
that would be a misdemeanor.
SENATOR HALFORD clarified that until the point a person is issued
a citation, there is no violation. MR. PAULEY responded that he
believed that was correct, but would depend on the interpretation
of "under arrest or detention."
SENATOR HALFORD noted this bill includes making a false report to
the Department of Natural Resources (DNR) concerning the condition
of a dam or reservoir. MR. PAULEY claimed this was in existing
statute and he was unfamiliar with the history of this. SENATOR
HALFORD commented, "It was a very foolish bill we passed about a
decade ago."
Number 114
SENATOR DONLEY claimed "We have other laws to cover that particular
issue . . . "[false reports to DNR].
SENATOR DONLEY asked if it is a misdemeanor to give false identity
information to a police officer conducting an investigation,
without the intent to implicate another. He said this seems to
leave a gap; no crime is committed unless a person gives false
information with the intent of implicating another, or while under
arrest or detention, or being issued a citation.
SENATOR HALFORD explained if a person gives false identity
information when a police officer merely asks, "Who are you?",
there is no crime, as the person is not under arrest or detention.
He agreed there seems to be a gap. SENATOR DONLEY suggested there
could be public policy reasons why the sponsor does not want to
include this. MR. PAULEY replied the sponsor would not be likely to
object to broadening the scope of the bill.
Number 196
SENATOR ELLIS asked if the sponsor actually believes providing
false information is as serious a crime as physically eluding
arrest. He also asked if MR. PAULEY could provide examples of cases
that had gone stale due to false information. MR. PAULEY did not
have examples of stale cases, but said this concern had been
conveyed to him by the Anchorage Police Department. He said he was
comparing physical escape with false information in an analogy and
the point is that deception is being used to elude arrest and the
severity of the penalty should correlate with the severity of the
offense.
SENATOR ELLIS said he was surprised MR. PAULEY would equate the
two, as physical escape is an objective situation and a report of
false information seems more subjective.
SENATOR HALFORD said the false information given must be with the
intent to implicate another or regarding identity or to report a
false alarm. He asked if a correctional officer is considered a
peace officer and how this bill might apply to people who are
incarcerated.
MS. MARGOT KNUTH, representing the Department of Corrections,
remarked the Department of Law might be better suited to answer
questions about whether or not correctional officers fall under the
definitions of SB 26.
SENATOR HALFORD suggested "blaming it on somebody else" is probably
a regular occurrence in prison. MS. KNUTH replied the Department
has disciplinary procedures to deal with this.
Number 282
MS. ANNE CARPENETI, representing the Department of Law, said it
does not seem as if correctional officers are included under the
definitions in SB 26; she said she would research the question and
provide the committee with a definitive answer.
SENATOR HALFORD asked if Village Public Safety Officers (VPSOs) are
covered under the bill and MS. CARPENETI said they are.
SENATOR HALFORD asked what constitutes detention and how this bill
would apply if a citation is not actually issued. MS. CARPENETI
replied official detention is defined as arrest or something like
it. A person merely stopped for a citation probably would not be
under detention. She noted that the common definition of detention
might apply.
SENATOR HALFORD claimed the bill does not "reach what you are
trying to reach . . . the person who has given the false
information will have the defense 'but I wasn't arrested, I wasn't
cited'."
MS. CARPENETI said the Department's concern is that it is more
serious to falsely implicate another in a crime or create a false
alarm (both class A misdemeanors) than to give false identity
information (a C felony under SB 26). SENATOR DONLEY asked if the
latter crime should be an A misdemeanor. MS. CARPENETI concurred,
noting that criminally negligent homicide is a C felony offense.
Number 348
SENATOR HALFORD reported fiscal notes had been received for the
bill.
SENATOR DONLEY considered the possibility of reducing Section 1 to
a class A misdemeanor and allowing it to encompass all class A
misdemeanors. Additionally, he proposed including the simple crime
of providing false information to a peace officer (while not under
arrest, detention, etc.) as a class B misdemeanor.
MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency,
said the Agency's main concern is how well the C felony created in
SB 26 fits with existing C felonies such as resisting arrest.
MR. MCCUNE suggested adding a requirement for providing false
information "with intent to avoid prosecution" would bring that
provision in line with the others that require the same type of
mental state.
MR. MCCUNE reported "official detention" is used as a term of art,
and is not the same as the common definition.
MR. MCCUNE agreed that this bill does not appear to apply to
correctional officers.
Number 454
SENATOR HALFORD asked if the bill would apply to probation officers
who could have cause to ask the identity of a person in the company
of someone on probation. He commented the Agency knows false
information is given in 2% of police cases, showing this is a valid
problem to address. MR. MCCUNE said juveniles might give false
information initially, but "change their tune" after a stern look.
This charge is for people who persistently give false information.
SENATOR DONLEY commented if the bill does not define "detention,"
the Public Defender Agency will argue it is not specific enough and
the term needs to be defined.
Number 483
MR. DAVID HUDSON, representing the Alaska State Troopers, supported
SB 26 as an aid to police investigations. He asked the sponsor to
consider including false information given to an officer conducting
an investigation. He said by the time a suspect is under arrest,
making a positive identification is relatively easy. He also
suggested the committee might consider including an "intent to
avoid arrest" provision to the bill.
SENATOR ELLIS asked MR. HUDSON when an investigation starts and
when it stops. MR. HUDSON explained investigating officers identify
themselves and explain they are conducting an investigation before
they ask for a person's identification. They then provide the
person's name to a dispatcher for a background check. A person who
has a warrant out for their arrest may give false information at
this time; however, if an officer doubts the veracity of the
information provided, he or she may remind the person it is a crime
to give false information to a peace officer.
Number 540
SENATOR ELLIS asked if expanding the bill to include investigations
would widely broaden the bill's scope. MR. HUDSON said such a
change would encompass many aspects of police work and "strengthen
the ability of law enforcement to provide positive public contact."
SENATOR HALFORD asked if a person contacted in an investigation is
required to give information to police. MR. HUDSON replied a person
has the right to remain silent.
Number 571
SENATOR HALFORD said the committee would hold SB 26 and take it up
in the future.
SB 25-THREE-TIME LOSER: VIOLENT MISDEMEANORS
MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 25. SB
25 is a bill designed to address people who commit repeated violent
misdemeanors. MR. PAULEY said it is common for felony offenses to
be reduced to misdemeanors during the plea bargain process. Under
SB 25, a person convicted of a third violent misdemeanor in a ten-
year period will be prosecuted for the third offense as if it was
a violent felony.
TAPE 99-16, Side B
Number 582
MR. PAULEY explained SB 25 covers eight offenses (class A and B
misdemeanors). Multiple offenses within a single criminal episode
are considered single offenses for the purpose of this bill. If the
defendant does not concede prior conviction, the prosecution must
provide the court with proof of the convictions at least 20 days
before sentencing. If the defendant disputes the accuracy or
relevancy of the prior record, he or she must serve the prosecutor
with a notice of denial 10 days before sentencing.
MR. PAULEY said SB 25 will provide an additional tool to keep
dangerous offenders off the street and send a message that the
state will not tolerate violence as a means to settle disputes.
MR. PAULEY indicated the sponsor met with a representative of the
Department of Law to address the department's concern over a
possible equal protection challenge to the bill. MR. PAULEY said
the challenge would arise from the sentencing difference between
two defendants who commit a violent misdemeanor, one who has two
prior violent misdemeanor convictions and is sentenced as a felon,
and the other who has two prior felony convictions and is sentenced
as a misdemeanant. MR. PAULEY said the opinion of the drafting
attorney is that the state could present a legitimate argument to
the "rational basis" test and the bill would be constitutional.
However, the sponsor would prefer a bill without any question of
constitutionality and is working toward an alternative.
MR. PAULEY commented that one alternative under scrutiny might
lower the bill's substantial fiscal note.
Number 543
SENATOR HALFORD asked how the bill would apply in situations where
offenses occur in such quick succession that there may not be a
conviction for them by the time the third offense is brought
forward. MR. PAULEY said that situation had not been anticipated.
Number 528
SENATOR ELLIS asked for an explanation of stalking in the second
degree. MR. PAULEY read the definition: "[to] knowingly engage in
a course of conduct that recklessly places another person in fear
of death or physical injury or in fear of the death or physical
injury of a family member." SENATOR HALFORD noted this crime can be
committed verbally "from 1,000 miles away."
SENATOR ELLIS assumed that a defendant facing conviction under SB
25 will be entitled to a full jury trial. MR. PAULEY agreed.
SENATOR ELLIS asked if the bulk of the costs reflected in the
fiscal notes comes from additional jury trials. MR. PAULEY said
that, and the cost of additional incarceration, comprise the bulk
of the fiscal notes.
SENATOR HALFORD asked what constitutes misconduct involving weapons
in the fifth degree. MR. PAULEY replied it is the possession of a
weapon on premises where liquor is sold for on-site consumption or
possession of a weapon by a minor without permission or possession
of a weapon in a parking lot adjacent to a child-care or domestic
violence/sexual assault shelter. This offense includes possession
of a switchblade or "gravity" knife.
SENATOR HALFORD asked if this means, "Three gravity knives and
you're out?" He suggested, "maybe that one should come off."
Number 460
MS. ANNE CARPENETI, representing the Department of Law, said the
equal protection challenge would result from a person with two
prior misdemeanor convictions being treated more seriously than a
person with two prior felony convictions. SENATOR DONLEY said the
argument could be made that a repeat or an escalation of a type of
criminal conduct is worse than a decreasing level of criminal
conduct.
MS. CARPENETI stated the Department is also concerned an increase
in grand jury indictments would require a big step up in the level
of prosecution; this is reflected in the Department's fiscal note.
Another concern is the effect this bill will have on the
prosecution of first and second violent misdemeanor offenses,
according to MS. CARPENETI.
MS. CARPENETI explained the Legislature last year adopted mandatory
minimum sentences for second and third degree domestic violence and
fourth degree assault. These are the most serious offenses covered
by SB 25 and she suggested the committee consider waiting for these
new laws to take effect, in order to see how prosecutions are
affected. She suggested they wait one year, saying "it sounds like
a good idea to get tough on people who continue to commit violent
misdemeanors . . . but this bill has some problems and we would
recommend waiting and getting more information on what we just did
last year . . . "
SENATOR ELLIS asked if the Anchorage Prosecutor's office has
submitted their concerns in writing. MS. CARPENETI did not know but
said she would ask them to do so.
Number 385
MS. MARGOT KNUTH, representing the Department of Corrections,
remarked that SB 25 keeps the actual offense a misdemeanor and only
considers it a felony for the purposes of sentencing. She asked if
the bill will allow presumptive sentencing and allow these crimes
to be prosecuted by municipalities. She said this may be a step
away from encouraging municipalities to deal with public services.
SENATOR DONLEY asked how many municipalities currently prosecute
misdemeanors. MS. KNUTH answered Anchorage and Juneau do. She
stated than John Richards estimated there would be a thousand
convictions under this law per year. The fiscal note was determined
using fewer than 250 cases.
MS. KNUTH said the Department assumed for the fiscal note a
sentence double the length of time currently served, and probation
for misdemeanant. Additional expenses would include pre-sentence
reports for these cases.
Number 346
SENATOR HALFORD commented that the number of people who fall into
this category is disturbing.
SENATOR DONLEY asked what the number would be if the bill was
narrowed to include only physically violent (contact) felonies. MS.
KNUTH reported the majority of cases are assault and violation of
domestic violence orders.
SENATOR DONLEY asked if aggravating and mitigating circumstances
are considered for misdemeanors. MS. KNUTH replied prior offenses
as well as the length of prior sentences and a statement by the
prosecutor are considered by the court.
MS. KNUTH explained there are 35,000 people who go through the
system annually; most are misdemeanants.
SENATOR DONLEY asked about the possibility of a mandatory one-year
sentence. MS. KNUTH replied the current 1.3 million dollar fiscal
note assumes 60 extra days of incarceration per person; a mandatory
one-year sentence would raise the amount to 6.8 million dollars.
SENATOR DONLEY commented that he is disturbed by how violence is
undervalued through plea bargaining. He said, "Ooh, what about
taking their Permanent Fund Dividend if they're three times
[offenders]- that would send them a message."
SENATOR HALFORD observed that the bill could be boiled down to
adding "60 days to serve for the person that's done this."
Number 269
MS. KNUTH said a new Anchorage jail with a 400 person capacity is
currently under construction, and "if the Legislature were
considering six months to serve on a third time violent offender,
we're going to have to up that right away." SENATOR DONLEY said
this presumes no deterrent factor at all. MS. KNUTH replied all
studies show the deterrent for these types of crime is the
certainty that they will be caught and suffer consequences.
According to MS. KNUTH, "Our system isn't good at that - we're good
at throwing the book at people once we get them." SENATOR DONLEY
said part of the problem is that these crimes are not taken
seriously enough.
SENATOR HALFORD remarked, "I'd like to see us do as much as we can
afford, but sometimes I think we hit these people just harder than
I can stand with my nose on their fist."
SENATOR DONLEY suggested if "we pull all their Permanent Fund
Dividends (PFDs)" this bill could be funded. MS. KNUTH reminded
the committee that the offender's PFD is the source of restitution
for the victim of the case. She mentioned PFDs are also often the
only source of child support collected from offenders.
SENATOR HALFORD asked SENATOR DONLEY if he would work with the
sponsor on SB 25. SENATOR DONLEY replied, "I'd pass it the way it
is - I like the bill."
Number 228
MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency,
expressed concern with prosecuting a crime "as if" it were another
crime. The Legislature has passed many bills over the past few
years that make a recidivist offense a more serious crime. This is
well established, but prosecuting a crime "as if" it were another
crime is not.
MR. MCCUNE said it would be difficult to administer the provision
that determines if prior offenses were elements of the same crime
committed for the third time.
Number 205
MR MCCUNE argued there are harsh sentences given now to people
convicted of a third domestic violence offense. Usually judges
include a big suspended sentence along with any time to serve, and
in case of an additional offense, the judge can impose a sentence
of up to one year in addition to the accumulated time that had been
previously suspended.
MR. MCCUNE said many of these cases involve people with mental
health problems and the Department of Corrections is the largest
mental health care provider in the state. A program to track these
people and provide them with mental health services has begun in
Anchorage; MR. MCCUNE thought that "real strict mandatory minimums
might hurt some of those programs." In the future, he hopes to see
strong substance abuse programs in jails and follow up substance
abuse treatment as a part of probation.
MR. MCCUNE expressed concern regarding the ability of
municipalities to prosecute these cases.
Number 142
MR. DAVID HUDSON testified the Alaska State Troopers support SB 25.
MR. MIKE PAULEY suggested there are alternatives to the current
bill such as mandatory minimum sentences that avoid the equal
protection challenge. He said this alternative would also reduce
the fiscal note from the court system, though it might increase the
fiscal note from the Department of Corrections.
SENATOR HALFORD said the bill will remain before the committee for
scheduling at the chairman's convenience. He said they would not
get to SB 77 today. SENATOR DONLEY said SB 77 is "a pretty
straightforward bill - I'd love to go ahead and move it out of here
today." SENATOR HALFORD indicated the sponsor of the bill would
prefer to wait.
With no further business to come before the committee, VICE-
CHAIRMAN HALFORD adjourned at 3:03.
| Document Name | Date/Time | Subjects |
|---|