Legislature(2003 - 2004)
03/12/2004 08:00 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 170-CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
MS. LINDA WILSON, Public Defender Agency, Department of
Administration (DOA), said she would complete the testimony she
began on Wednesday morning and would focus on the forfeiture
provisions in the bootlegging aspect of the bill. Members raised
questions about the interests of lien holders of property that
might be subject to forfeiture. She pointed out that Section 11
requires forfeiture of all aircraft and any vehicles or
watercraft if the offender had a prior conviction or is on
probation. She expressed concern that the person with a
legitimate interest in the property subject to mandatory
forfeiture will have to prove in court that he or she is an
innocent party. She expects, given the example discussed on
Wednesday of the forfeiture of a $10,000 truck with a $5,000
lien, the lien holder will probably have to pay the state for
the $5,000 difference in the value of the truck and try to
recoup the cost. She cautioned that it will require the lien
holder and others with a legitimate interest in property to
appear in court and result in more forfeiture hearings.
MS. WILSON turned to the self-defense provision and said she
spoke a little bit about the criminal objectives and the drug
transactions but the language in Section 18 (page 11) adds to
the list of circumstances for which a person cannot raise a
self-defense claim. She said subsection (B) is problematic
because she does not believe a "purported transaction" is
defined in statute. She finds that term to be vague and is not
sure why it was included.
MS. WILSON'S last concern was Section 32, which pertains to
disclosure of information about juvenile sex offender cases.
Section 32 would allow information that is now confidential to
be shared if requested for the purpose of protecting a child or
vulnerable adult. She echoed prior concerns expressed by
committee members that this provision will "open the door"
because of many opportunities for abuse of the provision. That
section contains no confidentiality protection once the
information is disclosed; it could be shared and publicized.
She said everyone agrees that sex offenders, even juveniles, do
not deserve sympathy, but the purpose of keeping information
confidential is to try to rehabilitate those juveniles.
Publicizing that information would be harmful to that goal.
CHAIR SEEKINS noted that the legal definition of "purported
transaction" would be to present the appearance, often false, of
being or intending to do something.
MR. JOSH FINK, Director of the Office of Public Advocacy, told
members that he finds the immunity sections most problematic. He
read a statement by the Alaska Supreme Court from the 1993
Gonzales case that encapsulates what that protection is:
The privilege against self-incrimination applies where
the answers elicited could support a conviction or
might furnish a link in the chain of evidence leading
to a conviction.
MR. FINK believes section 22(i) is patently unconstitutional,
according to that statement. To mandate that a judge inform the
prosecution what level of crime a potential witness would be
given protection from if testifying would allow the prosecution
to focus investigative resources on that individual via a
process of elimination. He said that information could create a
link in the chain that he believes would be struck down by the
Alaska Supreme Court after an expensive litigation process.
MR. FINK then pointed to Section 18, regarding self-defense, and
said he understands the intent but believes it is too broad. He
does not believe one should lose the right to self-defense for a
purported transaction - when one is in a situation that may have
the appearance of criminal activity but is not. He said an
example in which he does not believe the legislature would want
to take a person's right to a self-defense claim is shoplifting.
He has defended a number of cases in the Mat-Su Valley in which
over-zealous security guards assaulted teenagers shoplifting an
item such as candy. The state dismissed the charges after
reviewing the evidence of the assault. A second example is a 20-
year old who might enter a bar with a fake Id and is attacked by
a patron of the bar. He offered that one solution would be to
require that the criminal activity be felonious.
MR. FINK said that Section 19 also deals with the self-defense
claim and requires the judge to make a finding that the evidence
is plausible. His concern is that fact-finding is in the
providence of the jury; he does not believe judges should be
allowed to usurp the jury's fact-finding responsibilities.
He then expressed significant concern that Section 14 would
allow a felony prosecution when one is criminally negligent; the
current standard is reckless behavior. The reckless standard
requires the individual to be aware of and ignore the risk.
Under the criminal negligence standard, an individual does not
even have to be aware of the risk. He cautioned that the
committee may be criminalizing an accident and questioned
whether a person who hits a patch of black ice and goes off the
road is felonious if a passenger is injured. He felt that
section will criminalize behavior that Alaskans do not feel is
criminal.
MR. FINK recounted that his father, when a member of the House
in 1969, introduced the first legislation dealing with bail
conditions with third parties. His understanding of the purpose
of that legislation was to provide an alternative to those
individuals without the financial wherewithal to afford bail.
Since that time, it has morphed into a situation that involves a
cash bail and third party. He pointed out in many of these
cases, the requirements are already onerous; for example a third
party would have to get permission to bring the defendant to
work. Section 17 will make it more difficult to find a third
party. He suggested the current law is sufficient. A third party
who violates his or her duties can be held in contempt of court
and could receive a $300 fine and 6 months in jail. He felt that
the language regarding the immediate reporting of any violations
is also problematic. The third party may not be aware of a
violation at the exact time it occurred - such as when a child
sneaks out of the home while everyone is sleeping.
CHAIR SEEKINS asked Mr. Fink if he believes it will be harder to
find a third party custodian if the penalty for not reporting
violations is greater and whether one could interpret that to
mean that a number of third party custodians do not take their
responsibilities seriously.
MR. FINK said he believes most do take the responsibility
seriously. He has heard of individuals who are becoming
professional custodians but he has not seen any. He explained
that currently, a judge tells a third party custodian that if he
fails in his responsibilities, he is looking at the fine and
jail term. Most custodians hesitate but agree to go ahead. He
warned that if the fine and jail term increase, some third
parties will decide not to participate.
CHAIR SEEKINS pointed out the penalty applies if the custodian
does not report an activity the custodian knew was a violation
of the conditions, not for being unaware.
MR. FINK repeated the bill requires immediate reporting. He
would prefer that the section require immediate reporting when
the party becomes aware of the violation or adding the word
"knowingly" before "failed."
SENATOR FRENCH asked, in regard to Mr. Fink's objections to
Section 19, and the amount of evidence necessary for a judge to
allow a self-defense instruction to be given to the jury,
whether the judge must already engage in fact-finding because
the judge must find a scintilla of evidence. This provision
would require just a little bit more. He also asked Mr. Fink if
he thinks every time a self-defense jury instruction is
requested, the judge should give one.
MR. FINK said not in every case. Currently, some evidence must
be provided so the threshold is very, very low. He said the
system isn't broken. He believes allowing 12 minds to evaluate
the question is better than one. He repeated addressing the
question of self-defense is the jury's role.
CHAIR SEEKINS asked:
Mr. Fink, do you have any concern when you take a look
at this amendment? This specifically amends
11.81.330(a), the use of non-deadly force. But if I
look at 11.81.335, the justification for the use of
deadly force in self-defense is ... when to the extent
the use of non-deadly force is justified under
11.81.330. So those two statutes are kind of tied
together in that this also applies to the use of
deadly force as well. Am I reading that correctly?
MR. FINK said he believes so.
CHAIR SEEKINS asked if the new standard would apply to deadly or
non-deadly self-defense.
MR. FINK said that is correct.
There being no further questions of Mr. Fink, CHAIR SEEKINS
asked Susan Parkes to testify.
MS. SUSAN PARKES, Deputy Attorney General, Department of Law
(DOL), asked to respond to a few issues raised by testifiers.
First, regarding the immunity concerns, DOL has taken another
look at the Gonzales case. DOL believes the bill is
constitutional as written but has an amendment to offer that may
provide a "more conscious" approach. She said the amendment uses
more cautious language so that instead of the judge specifying
the level of the offense that the First and Fifth Amendment
would apply to, the judge would indicate whether it is a higher
level felony, meaning an unclassified or A felony, a lower level
felony, meaning a B or C felony, or a misdemeanor. DOL believes
with that amount of direction, the prosecution could responsibly
decide whether to grant immunity. DOL also believes that may
address the concern about the link in the chain of evidence.
CHAIR SEEKINS interjected that the proposed amendment was
distributed to members.
MS. PARKES continued by saying that regarding the assault in the
rd
3 degree provision that would create a felony assault using the
standard of criminal negligence, the state currently has a
felony homicide statute, AS 11.41.130, so that if a person's
criminally negligent behavior caused the death of another
person, that person would be prosecuted for a class B felony.
She pointed out that under existing statutes, a person who acts
in a criminally negligent manner can be prosecuted for a felony
so the change is not a huge leap. DOL is proposing to fill a gap
in the assault statutes as currently written.
MS. PARKES addressed the self-defense provision and informed
members that the current purpose of judges in the court is to
make decisions about what information will be put before a jury.
SB 170 does not propose to change a judge's role but creates a
higher standard for a self-defense claim to be put before a jury
to avoid unnecessary delays and unmeritorious claims. It is not
a burden-shifting proposal, it simply asks for plausible
evidence.
She said the purported transaction language was included in the
bill to address what is known as a "drug rip-off scenario." A
person may think s/he is arriving at a location to be involved
in a drug deal when in actuality there are no drugs on the
premises. The point is when people meet to engage in a drug
deal, they are engaging in a dangerous activity that often
results in an injury or death. If a person intends to engage in
a drug deal, whether it is real or purported, that person could
not claim self-defense. The purpose of the gang provision [would
be to disallow a claim of self-defense] if force was used to
further a criminal objective. Regarding its application to the
example of prostitution, a prostitute who is attacked by a
customer and defends herself would not be furthering her
prostitution, so a self-defense claim would be permissible.
However, if groups of individuals are fighting over territories
or retaliating over drug dealings or other similar scenarios,
then any force used would be inherent to the criminal
activities.
MS. PARKES responded to the concerns about the third party
custodian provision by saying that the common sense
interpretation of what is meant by that language is clear. In
this state, a judge would not allow charges to be filed against
a third party if it was impossible to report. She said in her
experience, the court tells third parties that it is not their
responsibility to control this person and keep them housebound;
they are simply expected to immediately report violations they
become aware of and if they do not, they are open to
prosecution. It has not been her experience that judges lay out
the specific penalties. DOL is proposing to make it a specific
statute in Title 11 for several reasons, not the least of which
is because it would create a clean, specific statute for third
parties, unlike the criminal intent statute. It will allow for a
cleaner prosecution and will clearly describe what was involved
on someone's record.
SENATOR FRENCH asked, with respect to subsection (a) in the self
defense provision, Ms. Parkes' opinion of the suggestion made by
Ms. Wilson and Mr. Fink that it apply only to felony charges so
that it would not apply to shoplifters, prostitutes or a person
with a small amount of marijuana.
MS. PARKES said she has concerns about that, as it would apply
to subsection (b). She noted that even marijuana deals often
turn deadly because drug dealers tend to carry guns. However,
she would be open to that consideration as it applies to
subsection (a). She noted DOL struggled with that language when
drafting the bill and looked to the statutory definition of
street gangs to try to find language that would be enforceable
and clear. She repeated the suggestion is worth consideration.
SENATOR FRENCH questioned how the plausible evidence standard
would work:
Under current law, a judge must ask him or herself
whether there is some evidence - or I think it's
frequently a scintilla of evidence, to support a self-
defense claim. The standard proposed by this bill is
that some plausible evidence - and just using
subsection (b) as an example to work my way through
how this would work should the law change, would the
judge ask whether there's some plausible evidence that
there was no drug deal in the works in order for a
self-defense claim to get to the jury? Is that the
logical way you'd sort of have to pose the question?
MS. PARKES answered that is her understanding of how it would
apply.
CHAIR SEEKINS asked if the word "purported" means that the jury
reasonably believed that a transaction was going to take place.
MS. PARKES agreed and explained, "We can see it both ways. We
see the seller who doesn't really come with the product to sell
planning to rob the buyer or the buyer coming to rob for the
drugs without ever planning to pay for them."
SENATOR FRENCH questioned whether Ms. Parkes had the chance to
talk to the folks who would draft the regulations on the
provision that allows disclosure of adjudication information for
a juvenile sex crime about which scenarios that would apply to.
MS. PARKES said she is involved in ongoing discussions with
Patty Ware, the Director of the Division of Juvenile Services in
DHSS, who has come up with some proposals. DOL feels confident
that it can provide an amendment that will satisfy its public
safety concerns and DHSS's concern to limit the scope of
disclosure.
CHAIR SEEKINS asked, under SB 170, if he attempted to engage in
an illegal transaction with Senator French and a fight ensued,
whether he could claim self-defense because Senator French
pulled his gun first.
MS. PARKES indicated she would need to know what the illegal
activity was but, if it was a drug deal or purported drug deal,
he could claim self-defense.
CHAIR SEEKINS asked, "Are we trying to get to some point where
we are saying the person knew there was dangerous activity that
would take place or could take place or just that they knew it
was an illegal transaction?"
MS. PARKES maintained that DOL is trying to get at situations in
which people know they are engaging in an inherently dangerous
activity where violence is often likely to occur.
SENATOR FRENCH commented that the drug-dealing scenario referred
to earlier could have been a situation where an experienced drug
dealer killed a more innocent individual but could not be
prosecuted because of a self-defense allegation, or one could
imagine that the younger, more vulnerable individual killed the
experienced drug dealer in an attempt to defend himself but
could not assert a self-defense claim. He acknowledged that he
is wrestling to find a way to maintain a self-defense claim for
a more culpable individual.
CHAIR SEEKINS then asked if this bill simply bars self-defense
versus making it an affirmative defense.
MS. PARKES said it would bar a self-defense claim if the
defendant cannot come up with some plausible evidence that
suggests otherwise.
CHAIR SEEKINS referred to Section 14, assault in the third
degree (page 9), and said line 2 reads, "causes physical injury"
while line 15 reads, "causes serious physical injury." He asked
the difference between the two terms.
MS. PARKES said physical injury is defined to mean physical pain
or an impairment of physical condition - often referred to as
bumps and bruises. Serious physical injury is defined as
"physical injury that causes serious and protracted
disfigurement, protracted impairment of health, protracted loss
or impairment of the function of a body member or organ or that
unlawfully terminate the pregnancy." She added that case law has
interpreted protracted impairment of health to mean an
impairment that takes six to eight weeks to heal.
CHAIR SEEKINS announced that the Senate was about to begin its
floor session so the committee would reschedule SB 170. He
adjourned the meeting at 9:55 a.m.
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