Legislature(1995 - 1996)
02/23/1996 04:00 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 194 GANG RELATED CRIMES
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 4:10 p.m.
SHERMAN ERNOUF, legislative aide to sponsor Senator Kelly, informed
committee members the most recent version of the committee
substitute is Version U (2/23/96) which was developed in
collaboration with the Department of Law. He explained the
following changes made to the proposed committee substitute. The
bill amends the crime of murder in the second degree to include a
felony murder provision for a death resulting from a drug offense
or gang related shooting. This provision would hold drug dealers
and gang members responsible when an innocent bystander is killed
during a shoot-out by eliminating the claim of self defense.
The bill criminalizes recruitment of a gang member (as a class C
felony) if force, or the threat of force, against a person or
property is used to induce a person to participate or commit a
crime on behalf of the street gang. The bill also establishes the
crime of recruitment in the second degree (as a class A
misdemeanor), for encouraging, without force, a person under the
age of 18 to participate in a gang by a person over the age of 18.
Additionally, the proposed committee substitute establishes an
elevated charge (to a class A felony) for weapons misconduct which
is applicable to drive-by shootings. The bill allows expert
testimony to be admissible in a criminal prosecution to show gang
affiliation, customs, rivalries, and other characteristics. It
provides for forfeiture to the state of motor vehicles, weapons,
electronic communications devices or other money or valuables, used
in, or obtained, through an offense that was committed for the
benefit of, at the direction of, or in association with a criminal
street gang. The last change allows for gang membership to be
considered as an aggravator for sentencing purposes in felonies,
and elevates misdemeanors when offenses are committed for the
benefit of, at the direction of, or in association with, a criminal
street gang; a person committing a class B misdemeanor would be
charged with a class A misdemeanor if the crime was associated with
gang activity.
Mr. Ernouf emphasized the committee substitute is the result of a
collaborative effort between Senator Kelly's office and the
Department of Law and asked for the committee's support.
Number 109
SENATOR ADAMS stated it appears the legislation was designed to
further the sponsor's re-election campaign and repeated his initial
concerns with the legislation. He questioned whether this version
of SB 194 is still too cumbersome to enforce; whether the dress
code contained as an identifying marker of a gang member could be
misused; how a previous gang member would prove no current
affiliation; and how the committee substitute would coordinate with
the existing juvenile justice system.
MR. ERNOUF replied the bill is the result of numerous constituent
complaints received by Senator Kelly's office as the number of
gang-related crimes in his district has increased. Second, the
criminal street gang definition is modelled after California law,
which contains the only successfully tried definition. The bill
does not punish a person for being a criminal street gang member,
only for committing a crime associated with a gang. The
definition contains two requirements that must both be met for
prosecution.
SENATOR ADAMS asked how a previous gang member would prove no
current affiliation. MR. ERNOUF clarified the definition requires
a person to have committed a gang-related crime within the previous
three years. A person who has not done so would not be charged and
sentenced according to this legislation.
Number 181
MICHAEL GRIMES, Supervisor of the Homicide, Assault, and Robbery
Unit of the Anchorage Police Department (APD), responded to Senator
Adams' questions. Regarding the possibility of a criminal
prosecution emanating from a group's style of dress, he did not
think that possible because criminal behavior must simultaneously
occur. The APD has gathered intelligence information from around
the municipality and state on gang members. The documentation
process is conservative and careful and is driven by reports of
criminal activity, for the most part arrests, or by self-admission.
Current statistics show 438 bona fide gang members operating in
Anchorage. In the past year and one half, since the information
has been compiled, 53 different gangs have been identified; 22 are
active and engage in criminal activity.
Number 232
SENATOR TAYLOR repeated Senator Adams' question about the
demographics of gang members, and how the legislation would
interact with the juvenile justice system. MR. GRIMES indicated a
significant number of gang members in Anchorage are under the age
of 18 and active recruitment is occurring in the junior high and
high schools. The measure covers both juveniles and adults
engaging in criminal gang activity and addresses statutes that
require automatic waivers for anyone aged 16 or over committing an
unclassified felony and class A felonies. The Department of Law
would have the ability, in extreme cases, to go through a waiver
process for persons under the age of 16.
SENATOR ADAMS stated previous testimony by a police enforcement
official revealed specific provisions of the bill to be too
cumbersome to enforce. He asked if the committee substitute
remedied those problems and asked Mr. Grimes if he had further
suggestions to the bill to help law enforcers decrease criminal
street gang activity.
MR. GRIMES pointed out the committee substitute amends the felony
murder statute to address drug dealing which will significantly aid
homicide investigations, apart from gang activity, because drugs
were a contributing factor in 20 murders since 1993. Criminal
gang activity would also fall under that statute. Current turf
battles between gangs over drug trafficking are occurring and
involve high caliber weapons. Eliminating the ability to claim
self defense when a bystander is involved will aid in prosecution.
Active recruitment by rival gangs led to a drive-by shooting last
week in Anchorage. The provision in the bill addressing drive-by
shootings will be most significant since those incidents are
occurring more frequently in Anchorage. For that offense, a 16
year old will be waived into adult court and charged with a class
A felony. He believes the stiffer sentences in the proposed
committee substitute will deter criminal gang activity.
SENATOR ADAMS asked if the APD believes it can enforce the
legislation as written. MR. GRIMES believed so, and that the
legislation will be a useful tool in combatting the problem of
criminal gang activity. Criminal gang investigators in other
states have affirmed that once criminal gang activity begins it
does not stop on its own.
Number 330
SENATOR TAYLOR commented that part of the concern about
enforceability during the last hearing centered around a police
officer's inability to immediately identify a gang member as a
person who committed a crime within the previous three years when
access to records is problematic. MR. GRIMES replied that past
legislative action has opened up the exchange of information
involving juveniles. The APD does have access to that information,
and is mandated to exchange information with school districts,
regarding students with records of violent behavior or firearm use.
SENATOR GREEN questioned whether the class A felony conviction for
a drive-by shooting applies to criminal gang members only. MR.
GRIMES answered it would apply to anyone shooting from a vehicle.
SENATOR ELLIS moved adoption of the committee substitute (Version
U). There being no objection, the motion carried.
Number 356
SENATOR ADAMS asked Mr. Grimes if the bill should contain any other
provisions to help law enforcement officials address the problem of
criminal street gang activity. MR. GRIMES stated he was unaware of
anything at this time.
LT. CASANOVAS, Alaska State Troopers, stated the Department of
Public Safety (DPS) believes CSSB 194 provides law enforcement
agencies with additional investigative and prosecutorial options.
He suspected the legislation will have more impact on urban law
enforcement agencies than on the Alaska State Troopers.
SENATOR ADAMS asked Lt. Casanovas if there is anything that could
be added to the legislation to help law enforcement officials. LT.
CASANOVAS indicated the legislation is very comprehensive.
CHRISTINE SOUR, testifying via teleconference from Fairbanks, asked
if a gang member would be held responsible if at the scene of a
gang crime, even though that member did not commit the crime.
SENATOR TAYLOR interpreted the language to mean the gang member
would have to be, in fact, involved in the commission of the crime,
and to have committed a previous crime as a gang member.
MS. SOUR questioned whether efforts would be made to disband the
gang after a crime was committed. SENATOR TAYLOR did not believe
the bill extends that far, as drafted. MS. CARPENETI stated if a
person wants to get out of a gang, he/she needs to stop committing
crimes with the gang. Language on page 2 of the bill requires the
gang member to act with the street gang in the commission of a
crime. SENATOR TAYLOR clarified that only those present and
involved would be prosecuted; the bill does not make a person
guilty by association. MS. CARPENETI emphasized the bill does not
criminalize membership in a gang: only active participation in
criminal activity by gang members would enhance charges and
sentences.
Number 420
MS. SOUR asked for further clarification of how CSSB 194 will
affect those under 18 years old, since many of the gang problems in
Anchorage are among high school students. SENATOR TAYLOR stated
the bill addresses very serious offenses. Two years ago, the
juvenile law was changed so that an automatic waiver of juvenile
jurisdiction occurs when a person over the age of 16 is accused of
those specific offenses which include class A felonies. If a 15
year old committed such a crime, he/she would be prosecuted under
the juvenile system, unless the prosecutor requested a waiver to
adult court.
MS. SOUR questioned when a person can claim self defense in a gang
war. SENATOR TAYLOR explained that claim cannot be made when an
innocent bystander is injured or killed during a gang activity.
MR. GRIMES and MS. CARPENETI agreed.
JACK CHENOWETH, Division of Legal Services, informed committee
members that when the law was amended several years ago, providing
for an automatic waiver of juveniles for offenses punishable as
unclassified felonies or class A felonies, the amendment added the
requirement that those offenses must be committed against a person.
Because of that limiting factor, only the offense against the
innocent bystander (page 2, lines 11-14) qualifies for automatic
waiver. The drive-by shooting offense (page 3, lines 1-3) would
not. SENATOR TAYLOR felt the bill should be amended to include
both offenses for qualification of automatic waivers.
Number 488
SENATOR ADAMS asked what the penalty for a class A felony is. MR.
CHENOWETH commented the penalty is serious and substantial but did
not provide details. He noted both AS 11.41.110(a), murder in the
second degree, and AS 11.61.190(a), misconduct involving weapons in
the first degree, are class A felonies. The difference is that one
is in AS 11.41, which is a crime against a person, the other is
not.
MS. CARPENETI noted that this legislation was not intended to
address juveniles, vis a vis adults. Juveniles, if appropriate or
under the law, would be required to be waived to adult court for
commission of class A felonies or unclassified felonies, however
will be dealt with in the juvenile justice system for other
offenses. SENATOR TAYLOR expressed concern that this bill will
only affect gang members 18 years or older, and to a very limited
extent, those 16 years or older.
MS. CARPENETI responded this bill would not affect the existing
juvenile justice system for those under 16. SENATOR TAYLOR stated
that is why the committee is concerned. If a juvenile discharged
a firearm and shot holes through buildings, he/she would be charged
as a juvenile. If the juvenile discharged a firearm and hit a
person, the automatic waiver would occur.
Number 527
LYNN STIMLER, representing the ACLU, stated the ACLU is concerned
about the language used in the description of gang activity.
Although the provision requires a person to have two kinds of
conduct, the language is too broad to pass a constitutional test.
Identifying markers in the definition describe groups such as girl
scouts; if those girl scouts committed a misdemeanor, such as
shoplifting, they would qualify for enhanced sentencing under CSSB
194.
MS. STIMLER discussed First Amendment concerns with the regulation
of forms of expression in the bill. She also expressed concern
with the forfeiture provision, and believed that provision will
complicate the bill, since cases are pending before the Ninth
Circuit Court. SENATOR ADAMS asked Ms. Stimler for suggestions to
avoid that problem. MS. STIMLER suggested removing the forfeiture
provision altogether and offered to provide written material.
MS. STIMLER questioned whether the Department of Law still believes
the bill would be too expensive and complicated to enforce. She
also questioned how CSSB 194 would affect HB 387, which proposes
revision of the Juvenile Justice Code, and HB 104 which addresses
confidentiality of records. She expressed concern that the three
bills will conflict with each other, or create a disjointed
approach toward the juvenile justice system. Her last comment was
directed to the lack of due process for juveniles, and juvenile
enforcement, created by CSSB 194.
Number 579
SENATOR ADAMS asked for a summary of HB 387. MS. STIMLER replied
HB 387 proposes a whole-scale revision of the juvenile code and is
moving quickly through the process.
SENATOR ELLIS questioned whether the definition used in SB 194 was
upheld under the California Constitution, or whether it was upheld
by the U.S. Supreme Court.
TAPE ONE, SIDE B
Number 000
MS. STIMLER stated she would submit written testimony on that
subject.
SENATOR TAYLOR commented that if the girl scouts were convicted of
a misdemeanor offense, the offense would be aggravated from a class
B to a class A offense. Second, if within a year and a half later,
the same group committed a murder, an automatic waiver might occur
based upon the offense itself. MS. STIMLER stated that the
misdemeanor offense would be enhanced because the girl scouts would
be considered a gang under the definition in CSSB 194. SENATOR
TAYLOR noted it is difficult to get petitions brought to prosecute
juveniles who commit misdemeanors. MS. STIMLER repeated her
concern that the definition is so broad as to include any group
dressed similarly and applies to misdemeanor offenses. She felt
the committee is the place to address the definition, rather than
a courtroom. She repeated her offer to provide suggestions to
tighten the definition.
SENATOR TAYLOR referred to the forfeiture provision and indicated
the Municipality of Anchorage can forfeit property in a DWI
offense, but that has not been accomplished at the state level
because of lien problems. MS. CARPENETI stated the bill was
drafted as is because the forfeiture provision is included in one
of the allowable sentences in Title 12, so that it is not an
automatic or mandatory forfeiture for a particular offense, but is
one of the choices the court can make when sentencing a person.
The court must take into consideration any liens on the property.
Number 530
SENATOR TAYLOR announced the bill would be held over until the
following week and asked MS. STIMLER to submit concerns and
suggestions to the committee before that time.
MS. CARPENETI clarified that the Department of Law did have serious
concerns about the way the original bill was drafted, but after
working with the sponsor and staff to address those concerns, the
Department of Law supports the measure as presently drafted.
There being no further testimony on CSSB 194, the committee took up
SB 177.
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