Legislature(2005 - 2006)FAHRENKAMP 203
03/31/2005 09:00 AM House RULES
| Audio | Topic |
|---|---|
| Start | |
| HB95 | |
| HB88 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HB 95 | |||
| HB 88 | |||
HB 88-OFFENSES BY MINORS/AGAINST TEACHERS CHAIR ROKEBERG announced that the final order of business would be HOUSE BILL NO. 88, "An Act relating to certain weapons offenses involving minors; to aggravating factors in sentencing for certain offenses committed against a school employee; and providing for an effective date." 9:57:10 AM RANDY RUARO, Assistant Attorney General, Legislation & Regulations Section, Office of the Attorney General, Department of Law, informed the committee that the Anchorage school District supports HB 88. He related his understanding that the Fairbanks School District has submitted a letter of support for the Senate's [companion] legislation. Mr. Ruaro said that there are three substantive sections of HB 88, Sections 2-4. Section 2 creates a new aggravating factor for certain crimes against a person or arson committed on school grounds or a school bus. Section 3 limits an existing mitigator that has been applied in at least one [Alaska] Superior Court in a manner not believed to be as it was originally intended. He explained that in one superior court, the mitigator for assisting authorities determined that it can apply that mitigator, even in subsequent cases. Therefore, a person who assisted authorities, say five or more years ago and received credit for an offense at that time, can claim that credit again in future cases. However, [the department] doesn't believe that was the intent of the original language. This provision clarifies that the mitigator only applies for the offense before the court at the time. Section 4 automatically waives 16-17 year olds charged with certain serious crimes, such as misconduct involving weapons, using a firearm at a drug deal, or shooting at someone in a drive-by shooting. The criminal division has reviewed Representative Hawker's proposed amendment and supports it. 9:59:26 AM REPRESENTATIVE MCGUIRE moved that the committee adopt Amendment 1, 24-GH1096\I.1, Luckhaupt, 3/24/05, which read: Page 1, line 1, following "minors;": Insert "relating to the definition of 'recreation or youth center' for purposes of misconduct involving a controlled substance;" Page 1, line 9: Delete "Sections 1, 2, and 4" Insert "Sections 1, 3, and 5" Page 1, following line 10: Insert a new bill section to read: "* Sec. 2. AS 11.71.900(20) is amended to read: (20) "recreation or youth center" means a building, structure, athletic playing field, or playground (A) run or created by a municipality or the state to provide athletic, recreational, or leisure activities for minors; or (B) operated by a public or private agency to provide shelter, training, or guidance for minors." Renumber the following bill sections accordingly. Page 3, line 12: Delete "Sections 2 - 4" Insert "Sections 2 - 5" REPRESENTATIVE BERKOWITZ objected. He turned attention to subparagraph (B) of Amendment 1, and opined that "operated by a public or private agency" encompasses practically everything and everyone. MR. RUARO explained that the genesis for Amendment 1 was the Covenant House, which houses many youth in treatment for drug issues. Apparently, dealers are aware of the aforementioned and hang around such treatment facilities and try to sell drugs to the youth residing there. REPRESENTATIVE BERKOWITZ said that he is supportive of the intent. However, he expressed concern with the loose language of Amendment 1 because a public or private agency encompasses everything. He related the need for the language to be more precise. MR. RUARO related his understanding that because these treatment facilities are operated by both private and public entities, the language was broadly stated in order to cover all the various types of organizations that offer assistance to youth. REPRESENTATIVE BERKOWITZ asked if this language would include his [private residence]. MR. RUARO said that he wasn't sure that a private residence would qualify as an agency. Certainly, the legislation isn't intended to apply to private residences. 10:02:32 AM REPRESENTATIVE MCGUIRE suggested adding language to subparagraph (B) of Amendment 1 so that it would read: "operated by a public or private agency licensed to provide". She suggested that the facilities being [discussed] have to obtain a license. MR. RUARO assumed that such facilities would at least have to have a business license. 10:03:28 AM CHAIR ROKEBERG suggested inserting the following language: "formally organized and operated" to [subparagraph (B)]. REPRESENTATIVE BERKOWITZ pointed out that "agent" is defined in AS 11.71.900 where it means an authorized person who acts on behalf or or at the direction of a manufacturer, distributor, and dispenser. Therefore, he suggested changing the reference from "agency" to "entity." CHAIR ROKEBERG suggested the word "organization." 10:04:35 AM CHAIR ROKEBERG opined that purveyors and sellers of drugs and so forth actually target school buildings and [rehabilitation/treatment facilities] because of the lack of an aggravator. The intention [of the amendment] is meritorious and the committee just needs to wordsmith the language. REPRESENTATIVE MCGUIRE suggested using the following language: "operated by a public or private entity that specifically provides". CHAIR ROKEBERG suggested the following language: "formally organized" which relates the legislative intent. REPRESENTATIVE MCGUIRE suggested that the language [in subparagraph (B) in Amendment 1] could read as follows: "formally organized public or private entity that specifically provides ...". REPRESENTATIVE BERKOWITZ pointed out that "organization" has a definition specified in AS 11.81.900. Representative Berkowitz related his preference to utilize words that are already [used]. He then suggested the following language: "operated by an organization that is licensed to provide". CHAIR ROKEBERG commented that "licensed" is of concern because as Mr. Ruaro mentioned one could say that having a business license means the entity is licensed. REPRESENTATIVE HARRIS interjected that a business license may be all that some of the facilities being discussed have. REPRESENTATIVE BERKOWITZ maintained that he is leery about including private homes [residences]. 10:06:35 AM REPRESENTATIVE COGHILL highlighted that [in the Fairbanks area] there are shelters that are nothing more than residences that open their doors for local youth. 10:06:48 AM CHAIR ROKEBERG related his understanding that the language in subparagraph (B) of Amendment 1 would read: "operated by a public or private organization licensed to provide shelter, training, or guidance for minors." REPRESENTATIVE HARRIS asked if the aforementioned language would exclude a residence from being licensed, as mentioned by Representative Coghill. CHAIR ROKEBERG should be able to do so. 10:07:45 AM CHAIR ROKEBERG moved that the committee adopt an amendment to Amendment 1, as follows: Line 16 [as numbered on Amendment 1], after "private": Delete "agency" Insert "organization licensed" There being no objection, the amendment to Amendment 1 was adopted. Therefore, Amendment 1, as amended, was before the committee. There being no objection, Amendment 1, as amended, was adopted. 10:08:26 AM REPRESENTATIVE BERKOWITZ moved that the committee adopt Conceptual Amendment 2, which would delete Section 3 and the portion of the title that reflects it. REPRESENTATIVE HARRIS objected. REPRESENTATIVE BERKOWITZ expressed concern that often law enforcement officers are able to make deals that may or may not be related to the offense. Without fully hearing the impact this amendment would have on law enforcement's ability (indisc.), he said he didn't believe it needs to be changed, especially if this is based on a single case. In response to Chair Rokeberg, Representative Berkowitz pointed out that Section 3 adds the following language, "after commission of the offense for which the defendant is being sentenced". He then posed a situation in which someone tells [law enforcement] about a crime, with which he or she is going to be involved, that is going to happen. 10:10:31 AM MR. RUARO informed the committee that the language has been vetted by District Attorney Bob Linton in Anchorage, who believes the language will work. He related that [District Attorney Linton didn't believe law enforcement's] ability to obtain information would be compromised by this. The concern is that other superior court judges could apply mitigators to cases when individuals assisted authorities several years prior. The intent is to stop doubling and tripling of credit for the mitigator. 10:11:36 AM REPRESENTATIVE MCGUIRE suggested that [the language in Section 3] might even allow a defendant on the hook for a separate crime to provide information about a crime and receive a mitigated sentence. REPRESENTATIVE BERKOWITZ said he would feel better if District Attorney Linton were present in order to field some hypothetical situations. 10:12:19 AM CHAIR ROKEBERG related his understanding that there is case law or actions of the judiciary that give rise to this particular provision. MR. RUARO replied yes, [Section 3] arose out of an Alaska Superior Court decision in a felony case in Ketchikan. One of the superior court judges gave the defendant credit for a mitigator for an act of assisting authorities, the act was prior to the time the offense was committed and it related to a different case. CHAIR ROKEBERG said that he shared Representative Berkowitz's concern that an individual shouldn't receive a mitigator for a an action that hasn't taken place because that's prevention of a crime. 10:13:19 AM REPRESENTATIVE MCGUIRE opined that there is enough "wiggle room" to get at what is desired. She characterized this as a philosophical question regarding whether one wants more crimes mitigated or not. Although a mitigator should be allowed when someone is assisting, the problem is that the legislation is broadened with the earlier mentioned superior court decision. It's disconcerting, she opined, that [a judge] could look back in time and apply a mitigator to a completely separate occasion. Therefore, she expressed the desire to clean it up. She related her philosophical belief that the fewer mitigators, the better. CHAIR ROKEBERG noted that the objections to Conceptual Amendment 2 were maintained. 10:14:37 AM A roll call vote was taken. Representatives Kohring and Berkowitz voted in favor of adopting Conceptual Amendment 2. Representatives McGuire, Harris, Coghill, and Rokeberg voted against it. Therefore, Conceptual Amendment 2 failed by a vote of 2-4. 10:15:14 AM REPRESENTATIVE BERKOWITZ turned attention to Section 4 of CSHB 88(FIN), and inquired as to why the bolded language doesn't track with AS 11.61.190. MR. RUARO explained that it doesn't track with AS [11.61].190 because it includes a section about shooting at property. The House Judiciary Standing Committee amended [Section 4] such that the situation should be limited to factual cases in which there is a person who was threatened by the shooting. 10:16:07 AM REPRESENTATIVE BERKOWITZ pointed out that the language missing from AS [11.61].190 refers to the "discharge of firearm from a propelled vehicle while the vehicle is being operated". MR. RUARO clarified that he was referring to the deletion of "or damage to property", which was the language that was dropped in the House Judiciary Standing Committee REPRESENTATIVE MCGUIRE highlighted that the underlying point of this legislation is that it's an auto waiver of a minor into the adult system, which is very serious. The concern is that when discharging a weapon at property is involved, there are circumstances that she didn't believe one would want to include for auto waivers. Therefore, the language deviated from the original statute and was made more narrow. REPRESENTATIVE COGHILL recalled that part of the discussion [in the House Judiciary Standing Committee] was that the crime against the person rose to the level of an auto waiver while a crime against property didn't. 10:18:10 AM REPRESENTATIVE MCGUIRE moved to report CSHB 88(FIN), as amended, out of committee with individual recommendations and the accompanying fiscal notes numbered 3 and 4. REPRESENTATIVE BERKOWITZ noted that his committee packet didn't include a fiscal note from the Department of Corrections. Furthermore, some of the fiscal notes said that the legislation may or may not lead to increased costs, which could be said of anything at any time. REPRESENTATIVE MCGUIRE interjected that the fiscal note to which Representative Berkowitz is referring is from the House Finance Committee, and noted that this [legislation] is not that committee's area of expertise. There being no objection, CSHB 88(RLS) was reported from the House Rules Standing Committee.
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