03/30/2012 01:30 PM Senate JUDICIARY

          HB  56-INCLUDE ARSON IN CRIMES OF CONSPIRACY                                                                      
                                                                                                                                
1:48:14 PM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 56.                                                                              
                                                                                                                                
REPRESENTATIVE MAX  GRUENBERG, prime sponsor  of HB 56,  said his                                                               
staff  member would  present the  bill, which  adds arson  in the                                                               
first degree  and arson  in the second  degree to  the conspiracy                                                               
statute.                                                                                                                        
                                                                                                                                
1:48:49 PM                                                                                                                    
MILES BROOKES, staff to  Representative Max Gruenberg, introduced                                                               
HB 56 by speaking to the following sponsor statement:                                                                           
                                                                                                                                
     House Bill  56 adds  first and  second degree  arson to                                                                    
     Alaska's conspiracy statute,  which will provide strong                                                                    
     deterrents to committing arson and  close a loophole in                                                                    
     current  law.  HB  56  was   drafted  after  it  became                                                                    
     apparent during  a committee hearing last  session that                                                                    
     arson is not currently  included in Alaska's conspiracy                                                                    
     statute.  Because  of  this,   arsonists  may  only  be                                                                    
     charged  with a  crime  if the  arson  is attempted  or                                                                    
     completed,  and   they  cannot  be  charged   with  the                                                                    
     separate crime of conspiracy if  two or more people are                                                                    
     involved in  the arson. This  bill only adds  first and                                                                    
     second  degree arson  [to the  list  of serious  felony                                                                    
     offenses for which  a person could be  charged with the                                                                    
     crime of conspiracy.]                                                                                                      
                                                                                                                                
         ¾Conspiracy: an agreement by two or more people to                                                                    
           commit a crime with at least one overt act                                                                           
           committed towards the completion of the crime.                                                                       
         ¾Arson in the first degree: damaging property by                                                                      
           fire or explosion and recklessly placing another                                                                     
           person (including emergency personnel) in danger                                                                     
          or serious physical injury. (Class A Felony)                                                                          
         ¾Arson in the second degree: knowingly damages a                                                                      
           building by fire or explosion. (Class B Felony)                                                                      
         ¾Conspiracy to commit a Class A Felony (Arson One)                                                                    
           is a Class B Felony.                                                                                                 
         ¾Conspiracy to commit a Class B Felony (Arson Two)                                                                    
           is a Class C Felony.                                                                                                 
                                                                                                                                
      HB 56 will fix those  problems. Including arson in the                                                                    
      conspiracy statute will  provide stronger punishments,                                                                    
      whether  or  not  conspirators actually  complete  the                                                                    
      arson.  Under  HB  56,  if  arson  is  committed,  the                                                                    
      conspiring arsonists can [be]  charged with both arson                                                                    
      and  conspiracy,  rather  than just  arson  under  the                                                                    
      current law.  If the arson is  not completed, however,                                                                    
      this  bill will  allow conspirators  to be  prosecuted                                                                    
      for  conspiracy   to  commit   arson,  which   is  not                                                                    
      punishable under current law.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  added  that  a  charge  of  conspiracy                                                               
requires  a   criminal  agreement   and  one  act   towards  that                                                               
agreement.  He highlighted  that much  less of  an actus  reus is                                                               
required than for  an attempt, which requires  a substantial step                                                               
towards the final crime.                                                                                                        
                                                                                                                                
CHAIR FRENCH asked  Ms. Carpeneti to remind the  committee of the                                                               
difference between attempt and conspiracy.                                                                                      
                                                                                                                                
1:51:40 PM                                                                                                                    
ANNE CARPENETI,  Assistant District Attorney,  Criminal Division,                                                               
Legal Services  Section, Department of Law  (DOL), explained that                                                               
the elements of conspiracy are  an agreement between at least two                                                               
people with  the specific intent to  commit a crime, and  one act                                                               
in furtherance of that agreement.                                                                                               
                                                                                                                                
CHAIR  FRENCH   recalled  that  there  could   not  be  attempted                                                               
conspiracy.                                                                                                                     
                                                                                                                                
MS. CARPENETI agreed.                                                                                                           
                                                                                                                                
CHAIR FRENCH asked  why Alaska law had a specific  list of crimes                                                               
that can be subject to a conspiracy charge.                                                                                     
                                                                                                                                
MS.  CARPENETI explained  that when  the Legislature  revised the                                                               
criminal  code  in 1978  it  decided  not  to have  a  conspiracy                                                               
provision in  the substantive criminal  law. In the  early 1980s,                                                               
the  Legislature  changed  its   collective  mind  and  passed  a                                                               
conspiracy  provision that  was limited  to certain  very serious                                                               
crimes,  each of  which  would more  likely  happen by  agreement                                                               
among people.                                                                                                                   
                                                                                                                                
CHAIR FRENCH commented  that there can't be  conspiracy to commit                                                               
theft, for example.                                                                                                             
                                                                                                                                
MS. CARPENETI  agreed, and added  that the least  serious offense                                                               
on the list of crimes that  can be subject to a conspiracy charge                                                               
is a  class B  felony. HB 56  would add a  class A  felony crime,                                                               
[arson in  the first degree] and  a class B felony  crime, [arson                                                               
in the second degree].                                                                                                          
                                                                                                                                
1:53:47 PM                                                                                                                    
SENATOR  COGHILL  asked  about  the  difference  between  proving                                                               
attempted arson versus conspiracy to commit arson.                                                                              
                                                                                                                                
MS. CARPENETI explained that to  prove conspiracy to commit arson                                                               
the evidence  would have to show,  for example, that two  or more                                                               
people conspired  and agreed to burn  a building to make  a claim                                                               
for  insurance. The  evidence would  also  have to  show that  in                                                               
furtherance of  that agreement,  one or more  of the  people went                                                               
out and purchased  incendiary materials. The two  acts together -                                                               
the agreement  to burn the  building and  the purchase of  fuel -                                                               
prove conspiracy.                                                                                                               
                                                                                                                                
An example  of attempted arson would  be a person who  decides to                                                               
burn his  or her  house for insurance.  The person  purchased the                                                               
fuel, spread it  around the house, and lit a  match, but for some                                                               
reason the  fire did not catch  and the house was  not destroyed.                                                               
To prove attempted arson, proof of specific intent is required.                                                                 
                                                                                                                                
SENATOR  COGHILL asked  if a  charge  of conspiracy  would be  in                                                               
addition to other charges.                                                                                                      
                                                                                                                                
MS.  CARPENETI  replied it  depends,  but  it  is unique  to  the                                                               
conspiracy law that a person  can be convicted of both conspiracy                                                               
and  the completed  crime. The  probable rationale  is that  once                                                               
people agree to  commit a crime, it's more likely  to happen than                                                               
if just one person thinks about it.                                                                                             
                                                                                                                                
SENATOR  COGHILL  commented that  if  somebody  was suspected  of                                                               
arson,  an investigation  would  likely ensue  to  look for  some                                                               
conspiratorial action.                                                                                                          
                                                                                                                                
MS.  CARPENETI said  yes  and reiterated  that  these crimes  are                                                               
difficult to prove and the prosecutions are rare.                                                                               
                                                                                                                                
1:57:19 PM                                                                                                                    
DAN JAGER,  Fire Marshall, Capital City  Fire/Rescue, Juneau, AK,                                                               
testified in support of HB 56.  He informed the committee that he                                                               
was  a  member  of  the  Alaska Association  of  Fire  and  Arson                                                               
Investigators  and had  actively  investigated  fires across  the                                                               
state for  10 years. He said  the crime of arson  is difficult to                                                               
investigate and  catching the person responsible  is even harder.                                                               
The  2011  statistics   for  Juneau  show  more   than  30  fires                                                               
classified as  arson or suspicious  in nature, and  suspects have                                                               
been identified in just three cases.                                                                                            
                                                                                                                                
MR. JAGER said it was  his experience that arson usually involves                                                               
planning and  execution by  more than  one person.  Under current                                                               
law,  arsonists can  only be  charged with  a crime  if arson  is                                                               
completed or  attempted, and attempted arson  requires proof that                                                               
a substantial step towards arson  occurred. Without HB 56, two or                                                               
more  people  who conspire  and  act  to  commit arson  can't  be                                                               
charged with  conspiracy. Passing the bill  will provide stronger                                                               
punishment whether or not the conspirators complete the arson.                                                                  
                                                                                                                                
2:00:00 PM                                                                                                                    
REPRESENTATIVE GRUENBERG supplemented  Ms. Carpeneti's history of                                                               
the conspiracy statute  and said he didn't know  why arson wasn't                                                               
included when the statute passed initially.                                                                                     
                                                                                                                                
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
HB 56 in committee.