Legislature(1999 - 2000)
03/03/1999 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS
CHAIRMAN KOTT announced the next order of business is, CSSB 3(RLS),
"An Act relating to the crimes of murder, solicitation to commit
murder in the first degree, conspiracy to commit murder in the
first degree, manslaughter, and criminally negligent homicide;
relating to homicides of children; relating to registration as a
sex offender or child kidnapper; relating to the crime of
interference with custody of a child or incompetent person; and
providing for an effective date."
CHAIRMAN KOTT called on Juli Lucky, staff to Senator Rick Halford,
sponsor of the bill.
Number 1638
JULI LUCKY, Researcher for Senator Rick Halford, Alaska State
Legislature, stated the bill should be familiar to the committee
members. It was heard last year as SB 218 and received seven due
passes. It is basically the same bill. Senator Halford would like
to send a clear message with this bill, that being "if you kill a
child you will go to jail for a long time." She cited the
Tellsworth case whereby a child was killed by a day care provider
and the mother of that child had to go through a long trial,
pleading and sentencing. She referred to a letter dated July 23,
1998 from the Department of Law to Senator Randy Phillips that
says, "Indeed, were it not for the powerful and moving testimony
and letters of Linda Tellsworth and her family and friends, we
might not have gotten the sentence that we did in the recent case
of the murder of Kyle Tellsworth." The judge in this case stated
during sentencing that the criminal would probably get five and
one-half years due to good time and suspended sentencing. That was
the reason for sponsoring this type of legislation. Under SB 3,
the criminal would have to spend substantially more time. Ms.
Lucky stated the bill does the following:
- adds a new form of first-degree murder when the death
of a child results from the commission or attempt of
kidnapping or of a sexual offense;
- expands the crime of felony murder to include sexual
abuse of a minor in the first and second degrees;
- adds a new form of second-degree murder when a death of
a child was caused with criminal negligence and the
offender has a previous conviction of certain crimes
against a child;
- elevates criminally negligent homicide from a class C
to a class B felony;
- establishes a twenty year mandatory minimum sentence
for a person convicted of a murder of a child under the
age of sixteen;
- increases the mandatory minimum sentence from five to
seven years for manslaughter, when the victim is a child
under the age of sixteen;
- establishes a new sentencing provision, which allows
for a term of un-suspended imprisonment that exceeds the
presumptive term, for certain felony offenses if the
victim is a child under the age of sixteen;
- expands the crime of custodial interference in the
first degree to include the act of keeping a child or
incompetent person outside of the state; and
- elevates solicitation of murder to an unclassified
felony.
Number 1756
REPRESENTATIVE MURKOWSKI stated last year the bill enjoyed
unanimous bipartisan support, and asked Ms. Lucky what the
differences are between last year's bill and this year's bill.
MS. LUCKY replied there are a few inclusions in this year's bill.
The first inclusion ups solicitation of first-degree murder to an
unclassified felony bringing it in-line with crimes of conspiracy
to commit first-degree murder. Another inclusion deals with sex
offender registration. Senator Halford believes that an attempt to
commit a crime of sexual abuse or assault of a minor should be
registered in the sex offender registry. There are also some
applicability sections that were added.
Number 1812
REPRESENTATIVE CROFT asked Ms. Lucky which sections in the bill
refer to sex offender registration.
MS. LUCKY replied Sections 11, 12, and 13 add offenses to the
definitions that are now in the sex offender registry statute. The
the definition of "aggravated sex offense", "sex offense" and
"child kidnapping" are being added, respectively. The bill adds
felony murder one and two to those definitions. The applicability
is in Section 15.
CHAIRMAN KOTT noted that the language "shall register" in on page
9, line 6.
Number 1864
REPRESENTATIVE ROKEBERG stated he does not see a fiscal note in the
bill packet. He is curious about the elevation of criminally
negligent homicide from a class C to a class B felony, and the
increase in the mandatory minimum sentence from five to seven years
for manslaughter. He asked Ms. Lucky whether the theory behind the
bill is to create a special crime for violence against a child.
MS. LUCKY replied the criminally negligent homicide provision would
affect the statute for everyone by upping it from a class C to a
class B felony. The manslaughter provision was discussed last year
and ups the sentence for crimes committed against children under
the age of 16. In other words, if a person is guilty of a crime of
manslaughter and those action harmed a child under the age of 16,
the sentence would be the higher of the two.
REPRESENTATIVE ROKEBERG stated he is troubled that the provision
for a criminally negligent homicide is across the board and not
specifically towards a child. He noted when the bill was passed
last year the state was in a different financial situation. He is
concerned about the fiscal impact.
CHAIRMAN KOTT noted that the committee has requested fiscal notes
from the Administration which have not been received yet. The
committee aide will provide a copy of the fiscal notes that were
transmitted with the bill.
Number 1800
SENATOR RICK HALFORD, Alaska State Legislature, noted that the
Department of Law requested the change in manslaughter. [THE REST
OF HIS TESTIMONY IS INAUDIBLE DUE TO PAPER SHUFFLING]
Number 2024
REPRESENTATIVE CROFT referred to Section 2(a)(3) and asked Ms.
Lucky whether a person would be registered as a sex offender if
that person commits a crime of kidnapping that is not of a sexual
nature. The language reads, "...the person commits or attempts to
commit a sexual offense or kidnapping against a child under 16
years of age...".
MS. LUCKY replied the term "child kidnapping" is already defined in
statute, and Section 12 of the bill would add the crimes dealing
with kidnapping to that definition.
REPRESENTATIVE CROFT stated that even though it is referred to as
a sex offender registry it really is a child kidnapper or sex
offender registry.
MS. LUCKY replied correct and noted Section 12 (C) is the part that
already exists in statute.
Number 2080
REPRESENTATIVE ROKEBERG stated he was not aware that kidnapping is
a part of the sex offender registry. He wondered if a parent
kidnaps that parent's own child would that parent be a part of the
sex offender registry.
Number 2096
REPRESENTATIVE CROFT stated he believes there is a distinction
between child abduction and kidnapping.
REPRESENTATIVE ROKEBERG wondered whether that was litigated under
Megan's Law in the supreme court.
REPRESENTATIVE KOTT opened the meeting up to public testimony.
Number 2132
DAVID HUDSON, First Sergeant, Division of Alaska State Troopers,
Department of Public Safety, testified via teleconference from
Anchorage. He noted that Section 3 of the bill needs to be more
specific to consider a prior qualifying conviction to demonstrate
a clear nexus to the crime at hand. For example, AS 11.41 includes
indecent exposure, and a defendant could argue that a prior
conviction of indecent exposure has little to do with that
defendant's current conduct and it should not be used to enhance
that defendant's criminal liability.
Number 2193
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage.
The bill makes a significant change in homicide laws. Homicide has
traditionally been divided into different degrees of seriousness
based on mental states. The bill changes that and makes a
classification based on the status of a victim as a child.
Traditionally, first-degree murder was premeditated or intentional.
Second-degree murder was lesser but still a very serious type of
mental state. Felony murder was when a person not participating in
the crime died in the commission of a serious felony. Manslaughter
was reckless types of conduct, not intentional types of conduct.
Criminal negligent homicide was death caused by criminal
negligence. He reiterated the bill would change a well-ordered
system. In addition, there are others who deserve the type of
protection under the bill such as the elderly, infirm or any other
vulnerable victim. An "aggravator" is already defined in statute
and used to enhance sentencing when a victim is vulnerable. In
addition, Section 4 would raise all criminally negligent homicides
to a class B felony, such as a death from a traffic accident. This
is quite a change in the law. The division has submitted an
indeterminate fiscal note because there would be more trials and
pleas, but the fiscal impact is indeterminable.
Number 2324
REPRESENTATIVE KERTTULA referred to Section 2, lines 12-20, and
wondered whether the direction is changing from a person's mental
state to criminal negligence.
MR. McCUNE replied it makes a fairly restrictive offense involving
torture or physical assault a first-degree murder by virtue of
criminal negligence. The conduct language directed toward the
child was placed in the bill last year at the request of the
Department of Law so that it is clear it would only involve cases
directed towards a child and not just that a child died in the
course of another incident.
Number 2424
MR. T. CALDER testified via teleconference from Fairbanks. He
stated he is fascinated with the remarks by Mr. McCune. The
legislature doesn't have any business tampering with the criminal
code. He knows that it can do it, but the history of crimes
against children committed under the collar of the law is a much
more serious problem. He has witnessed criminal activity under the
collar of the law against his own child and has not been able to
find a state official to address the problem in spite of laws that
already exist. "We're just completely missing the boat here now to
shuffle around the criminal code and try to tighten things up and,
you know, up the ante on some of this." There are already laws on
the books for this...
TAPE 99-9, SIDE B
Number 0001
MR. T. CALDER continued. The difficulties that citizens have when
their rights have been violated by governmental entities should be
the top legislative priority and really the only purpose for the
existence of the legislature. He can appreciate the position of
the law enforcement officer who spoke earlier and understands the
frustration of making a criminal a defendant in a legal action that
is not fairly judged in the interest of the people. That is a real
problem, but shuffling the words around in the bill and essentially
using children for this type of legal manipulation is dangerous.
He stated he would be happy to provide further information on the
criminal kidnap and torture of his own son by the Department of
Health and Social Services, Department of Law, Department of
Revenue and the court system. In conclusion, he stated if someone
really wants to shuffle the criminal code around, the crime of
genocide should be defined and lesser offenses. That person would
be providing a valuable public service.
CHAIRMAN KOTT noted there is something going on with the existing
system which is why the bill is being taken up.
Number 0098
ROBIN LOWN, Vice President, Alaska Peace Officers Association
(APOA), testified in Juneau. The APOA supports SB 3. The
association consists of 1,100 members from all law enforcement
agencies in the state.
Number 0128
CHAIRMAN KOTT asked Mr. Lown whether the APOA has discussed any
part of the bill in detail.
MR. LOWN replied the association has reviewed the bill in general.
It has not focused on any specific area. However, in response to
today's testimony, he agrees with First Sergeant Hudson's opinion
and Mr. McCune's opinion relating to intent.
Number 0174
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, testified in
Juneau. The division supports SB 3. It is substantially similar
to provisions in the Governor's Child Protection Bill (HB 375) that
passed last year. The additions made to the bill since last year
are logical and make sense. In reference to child kidnapping, the
legislature adopted a bill last year in response to federal
requirements to add it to the sex offender registry. It is now
called the "Sex Offender and Child Kidnapping Registry".
Number 0215
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the Act was
called.
MS. CARPENETI replied it was called the Wetterling Act. In
addition, the reason for suggesting an increase in criminally
negligent homicide was because in statute homicides are either
murder in the first or second degree unclassified felonies.
Manslaughter is a class A felony, and criminally negligent homicide
is a class C felony. The gap is not appropriate, particularly when
car theft, failure to register as a child sex offender or kidnapper
in the first degree are class C felonies. It seemed that
criminally negligent homicide, causing the death of another person
through criminal negligence, is serious enough to be classified as
a class C felony. It also makes more sense in charging and
processing cases. When considering charges of manslaughter, a
class A felony, prosecutors think about resolving the case short of
a trial. Therefore, they would be more likely to resolve a case
with a charge of criminally negligent homicide if it was a class B
felony. It makes more sense. It would up some cases to a B felony
and many cases would come down from an A to a B felony. The effect
wouldn't be that great in terms of corrections and costs.
Number 0319
REPRESENTATIVE CROFT stated in reference to kidnapping one's own
child, AS 11.41.300 provides a defense if that person is a relative
and the victim is a child and the primary intent is to assume
custody. It criminalities it at a different level. It is still
criminal, but different than kidnapping. He asked Ms. Carpeneti
whether that would come under the sex abuse or kidnapping registry.
MS. CARPENETI replied no. It is treated as custodial interference
in the first degree - a class C felony.
Number 0350
REPRESENTATIVE CROFT referred to Section 3(5), and stated the bill
would punish criminally negligent homicide with the death of a
child and hook it to some of the fairly minor crimes in AS 11.41,
such as extortion and indecent exposure. He asked Ms. Carpeneti
for a good example of criminally negligent homicide.
MS. CARPENETI replied reckless driving and causing a death. AS
11.41 are crimes against a person and she agrees it is a broad
coverage and it is getting broader as offenses are added to it.
She suggested breaking down some of the more serious offenses. She
noted that assault in the fourth degree is the crime that most
domestic violence cases are resolved under. It can be very
serious.
Number 0443
CHAIRMAN KOTT referred to Section 2(2) and stated, according to his
understanding, it is a two-prong test.
MS. CARPENETI stated under the old common law intentional killings
were generally first-degree murders. In 1988, the legislature
passed AS 11.41.100(2), but it hasn't been used because it is
difficult to prove a pattern or torture. The purpose of the child
protection law is to elevate the safety of the children of the
state and make it more serious to cause their death. The changes
in the bill were suggested to make it easier to prove beyond a
reasonable doubt that a person causing serious physical injury
twice on the same child could be charged with first-degree murder.
Number 0508
REPRESENTATIVE CROFT noted that he sees how a pattern or practice
could be difficult to prosecute, and asked Ms. Carpeneti whether
changing the language from extreme indifference to criminally
negligent is substantial as well.
MS. CARPENETI replied it is two acts and the person must knowingly
engage in conduct directed towards a child. It is a big change,
but the working group felt that it justified persecution for
first-degree murder.
Number 0550
REPRESENTATIVE CROFT stated the language in Section 2, starting on
line 12, "...knowingly engages in conduct...", doesn't incorporate
a standard.
MS. CARPENETI noted the language reads, "...directed toward a
child...".
REPRESENTATIVE CROFT noted that the acts are separate, but the
language doesn't read, "knowingly engages in criminally negligent
conduct."
MS. CARPENETI replied the way the bill is drafted now the result of
the action must be criminal negligence.
Number 0598
REPRESENTATIVE ROKEBERG referred to Section 5, and asked Ms.
Carpeneti whether a person who knowingly takes a child out of the
state and that child is killed in a reckless manner, such as a car
accident, could that person be accused of second-degree murder in
the state of Alaska.
MS. CARPENETI replied no. There has to be two separate instances.
A conviction generally includes a person being charged, found
guilty, and sentenced. Thus, unless that person has been convicted
of a violation in the first degree it would not count under
second-degree murder.
Number 0677
REPRESENTATIVE CROFT asked whether a person could be charged with
second-degree murder if that person has been convicted of custodial
interference then under lawful custody drives recklessly with that
child.
MS. CARPENETI replied yes. She suggested going through AS 11.41
and deciding which person-crimes are serious enough to justify
this.
Number 0713
REPRESENTATIVE CROFT asked Ms. Carpeneti what is the punishment for
second-degree murder.
MS. CARPENETI replied a maximum of 99 years in jail.
Number 0720
REPRESENTATIVE ROKEBERG noted the bill ups second-degree murder
from a minimum of 5 years to a minimum of 20 years. It needs to be
looked at further. It might be an unintended consequence.
Number 0752
REPRESENTATIVE CROFT asked Ms. Carpeneti for more examples of
criminally negligent conduct that might cause a death. He wondered
whether drunk driving under certain conditions could be an example.
MS. CARPENETI replied generally drunk driving involving a death is
charged under manslaughter. Sometimes manslaughter is reduced to
criminally negligent homicide if a link cannot be proved to
manslaughter. There are other situations, not just vehicular
homicides, but she didn't feel comfortable giving further examples
before consulting with prosecutors.
Number 0827
REPRESENTATIVE ROKEBERG stated a drunken driving offense is
normally charged with manslaughter yet criminally negligent
homicide is below manslaughter. Therefore, drunk driving is a
higher level of criminally negligent homicide. He asked Ms.
Carpeneti whether a charge more than manslaughter would be included
in criminally negligent homicide.
MS. CARPENETI replied yes because it involves a degree of
negligence or recklessness. Recklessness is a higher degree...
REPRESENTATIVE ROKEBERG interjected and asked Ms. Carpeneti whether
there is an administrative term "greater included."
MS. CARPENETI replied no.
REPRESENTATIVE ROKEBERG stated he is not sure whether that is the
case here in the bill. He asked Ms. Carpeneti whether there is
anything that the committee should be aware of relating to this.
MS. CARPENETI replied the term "greater included" is not used, but
its concept is used because there are those that are lesser
included.
REPRESENTATIVE ROKEBERG said he doesn't want those instances that
are now typically charged as manslaughter to become de facto
second-degree murder because of the bill. He is not sure that is
the intent of the sponsor either.
MS. CARPENETI referred to Section 3(5) and noted the purpose is to
punish those more seriously who have caused the death of children
when in the past they have caused harm to children.
Number 0979
REPRESENTATIVE ROKEBERG said, "I thought you said earlier that if
we find there's been a custodial interference with taking out of
state and a separate instance occurs (indisc.) criminal negligence
involved or homicide under criminal negligence in combination that
there could be a charge of second-degree murder vice-a-vie
homicide, I mean, manslaughter."
MS. CARPENETI replied if a person has been convicted of custodial
interference and after a conviction has caused the death of a child
through criminal negligence then that person could be charged with
second-degree murder.
REPRESENTATIVE ROKEBERG wondered whether a driving while
intoxicated (DWI) homicide normally charged under manslaughter
could be shifted to second-degree murder. He is not sure whether
the legislature or the sponsor wants to do that.
Number 1051
REPRESENTATIVE KERTTULA asked Representative Rokeberg whether he
wants to leave it out.
REPRESENTATIVE ROKEBERG replied no. He stated in this case several
things are being combined to make a more severe penalty. He asked,
Do we want to make those types of things second-degree murder with
a 20 year presumptive minimum sentence? He said, "We ought to be
darn sure what we're putting together here warrants that high
minimum presumption." In other words, a conviction of vehicular
homicide then a conviction of taking one's child out of state on a
separate instance seems a little tough for 20 years.
CHAIRMAN KOTT called on Ms. Lucky to comment on any of the issues
discussed.
Number 1147
MS. LUCKY reiterated the intent of Senator Halford is to use a
higher penalty against those who have a past conviction of a crime
against a child and cause the death of a child. She believes
prosecutors will still have discretion in what they will charge
someone with.
Number 1180
REPRESENTATIVE ROKEBERG stated, if he was a noncustodial parent and
took his child to Hawaii for a week and got busted, he would hate
to think that he would turn into a second-degree murderer later on
because of a different fact pattern. He is not certain that is the
case, but he is very concerned about it.
CHAIRMAN KOTT noted that Representative Rokeberg is right on track.
Number 1210
MS. LUCKY offered to the committee members an index of the statutes
under AS 11.41 in terms of specifying particular crimes...
CHAIRMAN KOTT interjected and asked Ms. Lucky whether there has
been any discussion to separate those crimes.
MS. LUCKY replied it hasn't been a discussion until now, and she
has not talked with Senator Halford about it. She reiterated she
has a list of crimes under AS 11.41 if the committee wishes to
fine-tune certain things. There are a lot of crimes listed that
would merit a more detailed discussion than just a list of the
statutes.
CHAIRMAN KOTT asked Ms. Lucky to make that index available to the
committee members.
Number 1278
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the presumptive
minimum and maximum sentences are for class B and C felonies.
MS. CARPENETI replied the maximum for a class B felony is (indisc.)
and the maximum for a class C felony is five years.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what are the minimums.
MS. CARPENETI replied class B and C felonies don't have presumptive
terms for the first conviction. A presumptive term for a class C
felony for a second conviction is two years. A presumptive term
for a class B felony for a second conviction is four years.
Number 1332
CHAIRMAN KOTT closed the meeting to public testimony.
CHAIRMAN KOTT referred the bill to a subcommittee. He appointed
Representative Rokeberg as chairman, and Representatives Green and
Kerttula to the subcommittee and charged it with looking at these
issues further in cooperation with the sponsor. The subcommittee
is to report back to the full committee at the earliest time
possible.
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