HOUSE BILL NO. 56 "An Act making arson in the first degree and arson in the second degree serious felonies for purposes of application of the crime of conspiracy." 1:43:46 PM MIKE SICA, STAFF, REPRESENTATIVE BOB LYNN, explained that HB 56 added first and second degree arson to Alaska's conspiracy statute. The sponsors believed that the implementation of the bill closed a loophole in current law and would act as strong deterrent to the serious crimes. He provided a definition for conspiracy: "when two or more people agree to commit a crime with at least one overt act to further the conspiracy." He expounded that it would be considered an overt act if two or more people agreed to set fire to a building and one of the people bought a match to further the crime. Mr. Sica explained that arson in the first degree was a class A felony; defined as an incident in which a person intentionally damages property by fire explosion and recklessly places another person, including the responders in danger of serious injury. He delineated that under the legislation conspiracy to commit arson would be a class B felony. He detailed that arson in the second degree took place when a person knowingly damages a building by fire or explosion and was currently a class B felony; under the legislation the crime would be changed to a class C felony. He relayed that the bill was strongly supported by Alaska fire departments, the Alaska Fire Chiefs Association, the Alaska Peace Officers Association, and the Alaska Association of Fire and Arson Investigators. The sponsors felt that it was important to align charges for the offense with other similar serious offenses. 1:46:13 PM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, believed arson was a reasonable offense to add to the definition of serious felony for conspiracy because the act of making the agreement and intent to commit the crime made it more likely for a crime to take place. Vice-chair Fairclough asked about the number of arsons committed annually. She wondered how the addition to statute would impact Court System caseload. Ms. Carpeneti replied that arson and conspiracy were not common crimes. She referenced the decisions under the conspiracy statute that had been enacted in the early 1980s and explained that there had only been two or three cases. She would follow up with the figure at a later time. Vice-chair Fairclough hoped to understand the impact on the Court System and the correctional facilities. She pointed to incidents of personal property damage caused by arson related to domestic violence and sexual assault. Ms. Carpeneti referred to data showing that there had been 111 occurrences in Anchorage in 2009. Co-Chair Stoltze asked whether the occurrences represented suspicious fires or arsons. Mr. Sica responded that the figure had been listed as arson under the Anchorage crime rate statistics. Based on the figure he suspected there had been hundreds of cases throughout the state. Representative Doogan asked whether the provision included under the bill would allow a person to be charged with conspiracy without having committed arson. Ms. Carpeneti replied in the affirmative. The conspiracy law allowed for a separate charge for conspiracy to commit a crime even though the target crime had not been committed. 1:49:54 PM Co-Chair Stoltze pointed to the intent to commit murder as another crime where intent was punishable. Ms. Carpeneti agreed. She furthered that there were laws for attempt to commit murder and laws that prohibited solicitation to commit certain "unfinished" crimes. Current statute included attempt, solicitation, and conspiracy to commit crimes. Representative Gara queried the difference between arson in the first degree and arson in the second degree. Mr. Sica replied that arson in the first degree involved recklessly placing another person in danger of serious physical injury. Representative Gara asked for the definition of arson in the second degree. Mr. Sica communicated that arson in the second degree involved a person who knowingly damaged a building by starting a fire or causing an explosion. Representative Gara wondered whether a group of kids that did not follow through with a crime after a conversation about burning down an unoccupied house could be charged with arson in the second degree under the legislation. Ms. Carpeneti replied in the negative. She did not believe the situation would fall under conspiracy either because there had been no culpable mental state, no overt act, and no furtherance of the conspiracy. Representative Gara asked for verification that in order for a crime to be categorized as conspiracy there had to be discussion of a crime and at least one overt act towards committing the crime. Ms. Carpeneti agreed. She reiterated that there had to be discussion of a crime, intent, and an overt act in furtherance of the crime. 1:52:14 PM Representative Wilson referred to the hypothetical situation presented by Representative Gara and asked whether all of the kids would be charged with conspiracy if only two out of the group followed through with the crime. Ms. Carpeneti replied in the negative. She clarified that the culpable mental state for conspiracy required intention of the result. The act of talking about it or being present when others are talking about it did not meet the elements of conspiracy. Vice-chair Fairclough asked whether HB 56 limited the definition of arson to buildings. Mr. Sica replied that arson in the first degree included any property. Under current law, arson in the second degree related to buildings only. Ms. Carpeneti added that the statute relating to arson in the first degree had existed since 1983. Co-Chair Stoltze referred to a case in which a person had lit a boat on fire that subsequently burnt down the adjacent 100-year-old church. Ms. Carpeneti replied that the incident fell under arson in the first degree. Vice-chair Fairclough wondered whether the Department of Law had concerns that the definition of arson in the second degree was limited to buildings. Ms. Carpeneti was not aware of any concerns, but noted that there may be fire marshals with different opinions. Co-Chair Stoltze noted there would be arson investigators testifying on the legislation. Representative Costello wondered whether starting a forest fire applied to the law. Ms. Carpeneti responded that the land qualified as property and it would be arson in the first degree if the fire caused a person harm or the risk of serious physical injury. Representative Costello asked whether a camp fire that resulted in a forest fire because it had not been properly extinguished would fall under the law. Ms. Carpeneti replied in the negative; accidentally or negligently leaving a fire would not apply. She explained that for conspiracy the intent for a fire to take place was required, for arson in the first degree a person had to intentionally damage property, and for arson in the second degree a person had to knowingly damage a building. 1:55:43 PM Representative Costello asked how the state dealt with minors who committed a felony. Ms. Carpeneti replied that minors under the age of 18 who committed crimes were typically treated as juveniles; they were charged with delinquent acts and were not charged with or convicted of crimes. She relayed that there was an automatic waiver for 16 and 17-year-olds who committed very serious crimes. Representative Gara queried whether minors were judged as delinquents if they committed a lower level crime such as a misdemeanor. Ms. Carpeneti replied that for certain traffic offenses juveniles could be charged and convicted, such as driving under the influence; however, most offenses for kids under the age of 18 were delinquent acts and did not result in conviction. BRIAN BALEGA, FIRE INVESTIGATOR, MUNICIPALITY OF ANCHORAGE AND PRESIDENT, ALASKA ASSOCIATION OF FIRE AND ARSON INVESTIGATORS, ANCHORAGE (via teleconference), voiced strong support for the legislation. He believed that arson was a valid concern for public safety in the state. He stated that there were many cases in Alaska that were not properly identified as arson. There were hundreds of fires in Anchorage annually and because he was the sole investigator he was only able to investigate an average of 50 to 60 fires per year. He detailed that approximately 25 of his cases in 2010 and 50 of his cases in 2011 had been arson. He discussed that juvenile fire setting was a concern; he had arrested 16 juveniles for arson and wildland fires during the summer of 2009. He explained if two people conspired to burn a building and one encouraged the other to commit the crime, under current law it was probable that only the person actually setting the fire would be charged. Mr. Balega believed that the legislation fixed a loophole in the system and would deter fires by holding all involved parties accountable for their actions. He opined that the crime of arson affected all residents of the state on a personal and financial level. In reference to a prior question by Representative Wilson he responded that he would look at holding the kids responsible for setting the fire accountable, but he would look to determine whether the other kids helped to plan or had participated in any other way; he stressed that an overt act would include them in the conspiracy. He thought the state's arson laws were narrow in their application, given that they specifically dealt with property and did not extend to cars and other items. He had recently talked with the association's vice president about modifying the arson in the third degree law; currently setting a vehicle on fire on state or municipal lands was a class C felony; however, if the vehicle was in a person's private driveway the offender could only be charged with something like criminal damage, criminal mischief, or vandalism. He stressed that his resources were limited and that there were many vehicle fires in Anchorage that he had to rely on fire department officers to deal with. Mr. Balega explained that the issue of unattended camp fires turning into wildland fires would most likely be included in one of the crimes associated with forested lands currently listed in statute; depending on its severity the crime could reach the felony level. He detailed that forested lands had civil attachments that would allow for double restitution related to the suppression and other activities of a fire. 2:04:28 PM Co-Chair Stoltze recalled a prior conversation with Mr. Balega and asked whether he believed the bill should be amended. Mr. Balega replied that there had been discussion about changing the law to apply to "propelled vehicles" instead of "motor vehicles"; however, there had been concern from a district attorney that the change may create constitutional challenges on prior convictions. He wondered whether DOL thought the law could be changed to read "motor vehicle and/or propelled vehicle." Co-Chair Stoltze communicated that the bill would remain as it was. He communicated that work could be done to determine another route for the additional item. He asked whether Ms. Carpeneti concurred. Ms. Carpeneti agreed. Representative Gara shared that he did not necessarily have a problem with the bill, given that arson seemed to be serious enough to fit in with conspiracy crimes. He referred to the crime of aiding and abetting. He surmised that a person was already covered under the aiding and abetting crime if they purchased materials and provided them to the arsonist. He surmised that conspiracy would apply to all of the individuals that talked about committing the crime; whereas, aiding and abetting covered the person who purchased the materials. Ms. Carpeneti replied in the affirmative. She expounded that conspiracy applied to the individuals that talked about the crime and intended for it to take place. She explained that whether or not a person could be considered an accomplice depended on the facts. Other offences included solicitation and attempt. She discussed that the harm in conspiracy is that the act of making the agreement and intent to commit the crime make it more likely for a crime to take place. 2:08:10 PM Representative Gara asked for verification that aiding and abetting resulted from an action, but that conspiracy occurred when a person just agreed that something should happen. Ms. Carpeneti replied that the explanation was correct in most circumstances. JOHN BOND, DEPUTY FIRE MARSHAL AND VICE PRESIDENT, ALASKA ASSOCIATION OF FIRE AND ARSON INVESTIGATORS, ANCHORAGE (via teleconference), spoke in support of the legislation. He communicated that currently there was no way to charge a person who conspired to commit arson if they did not actually take any action related to the crime. JEFF TUCKER, FIRE CHIEF, NORTH STAR FIRE DEPARTMENT AND FORMER PRESIDENT, ALASKA STATE FIRE CHIEFS ASSOCIATION, NORTH POLE (via teleconference), vocalized support for the bill. The association felt that the legislation closed a loophole in current statute and could provide a deterrent for individuals who may consider committing arson. LESLIE HOUSTON, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, DEPARTMENT OF CORRECTIONS (DOC), JUNEAU (via teleconference), relayed that DOC would monitor its database to determine whether there were any increases in arson offences going forward. Co-Chair Stoltze queried whether DOC had any expectations or projections related to the indeterminate fiscal note. Ms. Houston answered that it was not possible for the department to have any projections at the present time. There were currently twelve people incarcerated for arson in the first degree, one person incarcerated for arson in the second degree, and two people incarcerated for attempted arson in the first degree. She explained that if the legislation passed, the department would monitor the incarceration rates to determine whether it led to any significant increases to the prison population. 2:12:29 PM DOUGLAS MOODY, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION, ANCHORAGE (via teleconference), did not believe the bill would have a significant impact on the department, given that there were not many arson or conspiracy cases. He confirmed that in most cases involving more than one arsonist the extra people involved were charged with accomplice liability or aiding and abetting. He did not expect additional cases if DOL made no changes to its practices because the crime of conspiracy would just get filed in with the arson cases. He acknowledged the potential for a case increase and the possibility that young people could get roped into conspiracy charges where the extent of their involvement was not clear. He believed that it would be difficult for a kid to prove that they did not intend for a crime to actually happen after they had been present when the idea had been hatched. He relayed that proving intent was very difficult to discern because intent could only be inferred, unless both parties specifically stated that they planned to carry through with the crime. He discussed that in the case of wildland fires children could intend to start a fire, but not necessarily to start a wildland fire. He elaborated that conspiracy could just grow; there was the potential to apply the charge to a large group of kids that did not really mean to start a fire. He relayed that arson in the first degree was automatically waived for 16 and 17-year-olds. Arson in the second degree would only be automatically waived under certain conditions (e.g. if a person used explosives or had "priors"). 2:17:26 PM Representative Edgmon believed the bill might have more impact on the juvenile justice system than previously thought. He wondered whether there would be an impact to the fiscal note. Mr. Sica was not aware of the bill having an impact on the juvenile justice system. Representative Edgmon pointed to prior testimony and thought there could be potential costs due to increased cases. He communicated that he could have been missing some of the information on the issue. Co-Chair Stoltze noted that it was the departments' responsibility to provide fiscal notes if they believed a bill would cause a financial impact. Ms. Carpeneti confirmed that arson in the first degree was an automatic waiver for 16 and 17-year-olds. She clarified that the bill should not have a disparate impact on juvenile justice procedures. She elaborated that there were not many conspiracy prosecutions in Alaska potentially due to a lack of evidence or conspiracies. She detailed that "chest beating" by young kids was not the same as intent for a crime to be committed. She agreed that it was unlikely that a significant number of prosecutions would result from the passage of the bill. Representative Gara believed there were positive and negative aspects of the conspiracy law. The negative component was that a child would have a hard time convincing a jury that they did not intend to commit conspiracy. The positive aspect was that it was more likely the prosecution would succeed if there was a conspiracy law, given that there was a larger pool of people to provide evidence. 2:21:23 PM Mr. Moody explained that it all depended on the perspective. The advantage of a conspiracy statute was that it could be broad; the defendant did not have to be the person that committed the act; an agreement that could be inferred from conduct was all that was necessary. He did not know whether there would be a substantial advantage added related to "rolling individual defendants from the group." He believed that the police were effective investigators because they were capable of "rolling people" during the course of their investigations. Ms. Carpeneti added that the prosecution had to prove that a person committed a crime beyond a reasonable doubt; the defendant did not have to say or prove anything. Co-Chair Stoltze CLOSED public testimony. Representative Wilson discussed that it was hard to know the impact of the bill when the number of arson cases were not readily available. Ms. Carpeneti replied that she could follow up with the data. She referenced Leslie Houston's testimony that there were twelve individuals currently incarcerated for arson in the first degree and one incarcerated for second degree. She thought it was fairly clear that Alaska did not have many prosecutions for arson; the cases were difficult to prove because many times the evidence was destroyed in the fire. Representative Wilson was concerned about the intent portion of the conspiracy law. Ms. Carpeneti replied that there was a provision in statute for renunciation of a crime, which was a defense against the crime of arson. 2:26:03 PM Representative Doogan found it almost impossible that there was no legal recourse against someone who hired a person to burn a building down. He understood that it could be easier if the bill passed, but he opined that many things would be easier in the criminal justice system if the law allowed it. He believed the issue was a balancing act and discussed whether the benefit outweighed the gain to individuals' civil rights. He did not believe a solid case had been made for the proposed change. He discussed that the legislature had been stiffening up the penalties for many of the items it had been presented with. He believed that at some point the practice needed to be stopped and surmised that given the facts and numbers that had been presented perhaps the current bill was the place to start. Co-Chair Stoltze remarked that the discussion was relevant. Representative Gara referred to the federal government conspiracy law "RICO" that had been passed in order to get a person to come forward with information about a crime (specifically related to mafia crime). He believed that the legislature should take a look at the conspiracy law at some point in the future. He believed that arson was serious enough that it should fit under the conspiracy law. He wondered whether all property crimes were second degree felonies. He thought it could be possible to save money related to jail time and prosecution on the second degree arson cases. Co-Chair Stoltze asked whether the charges related to the value of property and also the risk of life. Representative Gara clarified that risk of life fell under arson in the first degree. He wondered whether the penalty for arson in the second degree could be reduced for properties that were worth a small amount. Ms. Carpeneti replied that arson in the second degree dealt with damages to a building from a fire or explosion. Arson in the third degree related to exploding a vehicle and criminally negligent burning related to crimes that caused less damage. She communicated that statutes did not include monetary values under the various arson crimes. She furthered that criminally negligent burning in the second degree occurred when a person with "the culpable mental state of criminal negligence damages property by fire or an explosion," which was a class A misdemeanor. Criminally negligent burning in the first degree applied to individuals who had a prior offence in the previous ten- year period. She believed a crime that involved a small amount of damage would be charged as a misdemeanor under criminally negligent burning. 2:31:41 PM Co-Chair Thomas MOVED to report HB 56 out of committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. HB 56 was REPORTED out of committee with a "no recommendation" and with one new indeterminate fiscal note from the Department of Corrections, one new zero fiscal note from the Department of Public Safety, and one new zero fiscal note from the Department of Law. 2:32:36 PM AT EASE 2:34:50 PM RECONVENED