Legislature(2001 - 2002)
05/08/2002 03:14 PM Senate JUD
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* first hearing in first committee of referral
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CSHB 350(FIN)am-TERRORISTIC THREATS & OTHER CRIMES
REPRESENTATIVE LESIL MAGUIRE, sponsor of CSHB 350(FIN)am
explained that this legislation is an omnibus homeland security
bill. Alaska statutes address issues that relate to terrorism,
but they do not take a comprehensive approach to provide tools
for prosecutors. CSHB 350(FIN)am is an effort to provide those
responsible for homeland security in Alaska the legal tools they
need to discourage false threats and to punish actual attempts to
practice terrorism in Alaska. Under CSHB 350(FIN)am, it will be
a class A felony, punishable by up to 20 years in prison, to
intentionally damage oil or gas pipelines or associated
facilities. She noted that specific facilities have been
identified and damage to them would cause widespread panic and
chaos. In addition to oil and gas pipelines, the crime would
apply to damage to water utilities, water mains, power, gas or
electrical distribution systems, or elements of the emergency
responder system. Any unsuccessful attempt to damage those
systems or an attempt to damage airplanes or helicopters would be
a class B felony. Finally, CSHB 350(FIN)am would raise
terroristic threatening from a class C to a class B felony, and
define the crime more clearly. The existing definition is
ambiguous; CSHB 350(FIN)am narrows it so that it will not apply
to a prankster. It also adds the act of making a false report of
releasing harmful chemical, biological, or explosive agents into
air, food or cosmetics. The current statute does not address air
and water so they were added.
SENATOR ELLIS asked for clarification of the reference to
cosmetics.
REPRESENTATIVE MAGUIRE explained that cosmetics and food are
named in the existing statutes but water and air are not.
SENATOR THERRIAULT referred to page 8, lines 29 and 30 of CSHB
350(FIN)am and asked why bacteriological, biological, chemical
and radiological substances were separated out since they are
inclusive of each other.
REPRESENTATIVE MAGUIRE said she and Ms. Carpeneti labored over
that question. Those substances were differentiated as the result
of a compromise with some minority members on the House Finance
Committee. Those members felt the original language (a toxic
agent that could cause serious bodily harm) was too broad so the
federal definition was used to narrow it. Those members were
concerned that the original language could apply to a person who
did not intend to do harm.
CHAIRMAN TAYLOR took public testimony.
MS. LINDA WILSON, Deputy Director of the Alaska Public Defender
Agency, said that since September 11, the federal and state
governments have felt the need to respond with appropriate
legislation to address terroristic threats and tighten up
loopholes to strengthen existing laws. The public defender's
agency certainly supports those efforts but it does not support
CSHB 350 (FIN)am for the following reasons.
CSHB 350 (FIN)am creates a "disproportionality" within the
criminal statutory scheme. Under Alaska's criminal code, crimes
are classified according to the type of injury caused and the
culpability of the defendant. Murder in the first degree is an
unclassified felony offense. Murder in the second degree is also
an unclassified felony that includes the crime of felony murder.
Within that felony murder aspect, many crimes are listed. If,
during the commission or the attempt to commit one of those
underlying crimes, or in fleeing from that crime, a person dies,
the person may be charged with second degree murder in addition
to the underlying offense. CSHB 350 (FIN)am leapfrogs two
underlying offenses - criminal mischief in the first degree and
terroristic threatening in the first degree as offenses that
would qualify under murder in the first degree for felony murder
that would otherwise appropriately belong in murder in the second
degree. The crimes delineated in the murder in the second degree
felony murder include arson in the first degree, kidnapping,
sexual assault in the first degree, sexual abuse of a minor in
the first degree, burglary in the first degree, escape in the
first degree, robbery in the first degree, and misconduct
involving controlled substances in the first degree. Yet CSHB 350
(FIN)am pulls out two crimes that were not even included in
murder in the second degree and elevates them to felony murder in
the first degree. She stated it is more appropriate that these
two crimes be included with all of the other serious crimes that
are in murder in the second degree.
MS. WILSON continued by informing members that class A felonies,
which are below unclassified felonies, are reserved for crimes
that involve conduct that actually results in serious physical
injury or a substantial risk of serious physical injury. Some
examples of crimes classified as class A felonies are arson in
the first degree, assault in the first degree, a weapons
misconduct offense in the first degree, and escape in the first
degree. Class B felonies are for the more serious or aggravated
property offenses and offenses against public administration or
order and conduct that results in less severe violence against a
person than would be in a class A felony. Some examples of class
B felonies are burglary in the first degree, perjury, bribery and
forgery. CSHB 350(FIN)am elevates criminal mischief in the first
degree to a class A felony for damage to property in excess of
$100,000. It also elevates, from a C to a B felony, tampering
with an airplane in addition to tampering with an oil or gas
pipeline or supporting facility. Increasing these four crimes
creates "disproportionality." These four crimes should remain
with the other sets of crimes more appropriately described as B
and C felonies as they better fit the overall classification
scheme.
MS. WILSON said she is specifically concerned about the new
offense created within terroristic threatening on page 8.
Terroristic threatening right now is a class B felony. CSHB 350
(FIN)am divides terroristic threatening into two degrees and
makes the more serious of the two, terroristic threatening in the
first degree, a class B felony. This particular section of the
bill was amended but the amendment did not make reference to the
mental state for this crime. The original language required that
the person intentionally placed a person in fear or caused
serious public inconvenience or evacuation. The House Finance
Committee amended that section so that a crime is committed if
the result is that a person was placed in fear, etcetera.
However, that amendment did not address the mental element of
intent. She suggested including that mental element within the
bill.
CHAIRMAN TAYLOR moved to amend page 8, line 28, to insert the
word "intentionally" after the word "person." He then asked Ms.
Carpeneti to comment.
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law, told members the reason the word
"intentionally" was removed by House members was that it
originally had been a specific intent crime to knowingly send
anthrax-type materials with the intent to cause various results.
The version under consideration by the House did not require the
prosecution to prove that the perpetrator had, in fact, caused
those results. The House considered that it wanted to have the
result as the element the state needed to prove and made a change
on page 9, by adding the results that were caused. Title 11 reads
into those circumstances a reckless culpable mental state,
meaning the person knew the risk and disregarded it. Therefore, a
culpable mental state is included already.
CHAIRMAN TAYLOR asked Ms. Carpeneti if she would object to
including the word "knowingly."
MS. CARPENETI said she did not.
CHAIRMAN TAYLOR withdrew his amendment and moved to insert, on
page 8, line 28, the word "knowingly" after the word "person." He
stated that he felt Ms. Wilson's comments were well founded.
There being no objection, CHAIRMAN TAYLOR's amendment was
adopted.
SENATOR THERRIAULT noted that Ms. Carpeneti had mentioned a
provision in the Senate version that was more artfully crafted
and asked her to direct him to it.
MS. CARPENETI referred to page 9, line 26, and said the problem
with changing it back to the Senate language at this time is that
the entire section would have to be rewritten because of the way
the lead-in reads.
SENATOR COWDERY moved SCS CSHB 350(FIN) am from committee with
its zero fiscal note.
CHAIRMAN TAYLOR announced that without objection, SCS CSHB
350(FIN) am moved from committee.
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