Legislature(2011 - 2012)HOUSE FINANCE 519
02/22/2012 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB279 | |
| HB56 | |
| HB216 | |
| HB264 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 56 | TELECONFERENCED | |
| + | HB 216 | TELECONFERENCED | |
| + | HB 253 | TELECONFERENCED | |
| + | HB 264 | TELECONFERENCED | |
| *+ | HB 302 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 279 | TELECONFERENCED | |
HOUSE BILL NO. 56
"An Act making arson in the first degree and arson in
the second degree serious felonies for purposes of
application of the crime of conspiracy."
1:43:46 PM
MIKE SICA, STAFF, REPRESENTATIVE BOB LYNN, explained that
HB 56 added first and second degree arson to Alaska's
conspiracy statute. The sponsors believed that the
implementation of the bill closed a loophole in current law
and would act as strong deterrent to the serious crimes. He
provided a definition for conspiracy: "when two or more
people agree to commit a crime with at least one overt act
to further the conspiracy." He expounded that it would be
considered an overt act if two or more people agreed to set
fire to a building and one of the people bought a match to
further the crime.
Mr. Sica explained that arson in the first degree was a
class A felony; defined as an incident in which a person
intentionally damages property by fire explosion and
recklessly places another person, including the responders
in danger of serious injury. He delineated that under the
legislation conspiracy to commit arson would be a class B
felony. He detailed that arson in the second degree took
place when a person knowingly damages a building by fire or
explosion and was currently a class B felony; under the
legislation the crime would be changed to a class C felony.
He relayed that the bill was strongly supported by Alaska
fire departments, the Alaska Fire Chiefs Association, the
Alaska Peace Officers Association, and the Alaska
Association of Fire and Arson Investigators. The sponsors
felt that it was important to align charges for the offense
with other similar serious offenses.
1:46:13 PM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
believed arson was a reasonable offense to add to the
definition of serious felony for conspiracy because the act
of making the agreement and intent to commit the crime made
it more likely for a crime to take place.
Vice-chair Fairclough asked about the number of arsons
committed annually. She wondered how the addition to
statute would impact Court System caseload.
Ms. Carpeneti replied that arson and conspiracy were not
common crimes. She referenced the decisions under the
conspiracy statute that had been enacted in the early 1980s
and explained that there had only been two or three cases.
She would follow up with the figure at a later time.
Vice-chair Fairclough hoped to understand the impact on the
Court System and the correctional facilities. She pointed
to incidents of personal property damage caused by arson
related to domestic violence and sexual assault.
Ms. Carpeneti referred to data showing that there had been
111 occurrences in Anchorage in 2009.
Co-Chair Stoltze asked whether the occurrences represented
suspicious fires or arsons. Mr. Sica responded that the
figure had been listed as arson under the Anchorage crime
rate statistics. Based on the figure he suspected there had
been hundreds of cases throughout the state.
Representative Doogan asked whether the provision included
under the bill would allow a person to be charged with
conspiracy without having committed arson. Ms. Carpeneti
replied in the affirmative. The conspiracy law allowed for
a separate charge for conspiracy to commit a crime even
though the target crime had not been committed.
1:49:54 PM
Co-Chair Stoltze pointed to the intent to commit murder as
another crime where intent was punishable. Ms. Carpeneti
agreed. She furthered that there were laws for attempt to
commit murder and laws that prohibited solicitation to
commit certain "unfinished" crimes. Current statute
included attempt, solicitation, and conspiracy to commit
crimes.
Representative Gara queried the difference between arson in
the first degree and arson in the second degree. Mr. Sica
replied that arson in the first degree involved recklessly
placing another person in danger of serious physical
injury.
Representative Gara asked for the definition of arson in
the second degree. Mr. Sica communicated that arson in the
second degree involved a person who knowingly damaged a
building by starting a fire or causing an explosion.
Representative Gara wondered whether a group of kids that
did not follow through with a crime after a conversation
about burning down an unoccupied house could be charged
with arson in the second degree under the legislation.
Ms. Carpeneti replied in the negative. She did not believe
the situation would fall under conspiracy either because
there had been no culpable mental state, no overt act, and
no furtherance of the conspiracy.
Representative Gara asked for verification that in order
for a crime to be categorized as conspiracy there had to be
discussion of a crime and at least one overt act towards
committing the crime. Ms. Carpeneti agreed. She reiterated
that there had to be discussion of a crime, intent, and an
overt act in furtherance of the crime.
1:52:14 PM
Representative Wilson referred to the hypothetical
situation presented by Representative Gara and asked
whether all of the kids would be charged with conspiracy if
only two out of the group followed through with the crime.
Ms. Carpeneti replied in the negative. She clarified that
the culpable mental state for conspiracy required intention
of the result. The act of talking about it or being present
when others are talking about it did not meet the elements
of conspiracy.
Vice-chair Fairclough asked whether HB 56 limited the
definition of arson to buildings. Mr. Sica replied that
arson in the first degree included any property. Under
current law, arson in the second degree related to
buildings only.
Ms. Carpeneti added that the statute relating to arson in
the first degree had existed since 1983.
Co-Chair Stoltze referred to a case in which a person had
lit a boat on fire that subsequently burnt down the
adjacent 100-year-old church. Ms. Carpeneti replied that
the incident fell under arson in the first degree.
Vice-chair Fairclough wondered whether the Department of
Law had concerns that the definition of arson in the second
degree was limited to buildings. Ms. Carpeneti was not
aware of any concerns, but noted that there may be fire
marshals with different opinions.
Co-Chair Stoltze noted there would be arson investigators
testifying on the legislation.
Representative Costello wondered whether starting a forest
fire applied to the law. Ms. Carpeneti responded that the
land qualified as property and it would be arson in the
first degree if the fire caused a person harm or the risk
of serious physical injury.
Representative Costello asked whether a camp fire that
resulted in a forest fire because it had not been properly
extinguished would fall under the law.
Ms. Carpeneti replied in the negative; accidentally or
negligently leaving a fire would not apply. She explained
that for conspiracy the intent for a fire to take place was
required, for arson in the first degree a person had to
intentionally damage property, and for arson in the second
degree a person had to knowingly damage a building.
1:55:43 PM
Representative Costello asked how the state dealt with
minors who committed a felony.
Ms. Carpeneti replied that minors under the age of 18 who
committed crimes were typically treated as juveniles; they
were charged with delinquent acts and were not charged with
or convicted of crimes. She relayed that there was an
automatic waiver for 16 and 17-year-olds who committed very
serious crimes.
Representative Gara queried whether minors were judged as
delinquents if they committed a lower level crime such as a
misdemeanor.
Ms. Carpeneti replied that for certain traffic offenses
juveniles could be charged and convicted, such as driving
under the influence; however, most offenses for kids under
the age of 18 were delinquent acts and did not result in
conviction.
BRIAN BALEGA, FIRE INVESTIGATOR, MUNICIPALITY OF ANCHORAGE
AND PRESIDENT, ALASKA ASSOCIATION OF FIRE AND ARSON
INVESTIGATORS, ANCHORAGE (via teleconference), voiced
strong support for the legislation. He believed that arson
was a valid concern for public safety in the state. He
stated that there were many cases in Alaska that were not
properly identified as arson. There were hundreds of fires
in Anchorage annually and because he was the sole
investigator he was only able to investigate an average of
50 to 60 fires per year. He detailed that approximately 25
of his cases in 2010 and 50 of his cases in 2011 had been
arson. He discussed that juvenile fire setting was a
concern; he had arrested 16 juveniles for arson and
wildland fires during the summer of 2009. He explained if
two people conspired to burn a building and one encouraged
the other to commit the crime, under current law it was
probable that only the person actually setting the fire
would be charged.
Mr. Balega believed that the legislation fixed a loophole
in the system and would deter fires by holding all involved
parties accountable for their actions. He opined that the
crime of arson affected all residents of the state on a
personal and financial level. In reference to a prior
question by Representative Wilson he responded that he
would look at holding the kids responsible for setting the
fire accountable, but he would look to determine whether
the other kids helped to plan or had participated in any
other way; he stressed that an overt act would include them
in the conspiracy. He thought the state's arson laws were
narrow in their application, given that they specifically
dealt with property and did not extend to cars and other
items. He had recently talked with the association's vice
president about modifying the arson in the third degree
law; currently setting a vehicle on fire on state or
municipal lands was a class C felony; however, if the
vehicle was in a person's private driveway the offender
could only be charged with something like criminal damage,
criminal mischief, or vandalism. He stressed that his
resources were limited and that there were many vehicle
fires in Anchorage that he had to rely on fire department
officers to deal with.
Mr. Balega explained that the issue of unattended camp
fires turning into wildland fires would most likely be
included in one of the crimes associated with forested
lands currently listed in statute; depending on its
severity the crime could reach the felony level. He
detailed that forested lands had civil attachments that
would allow for double restitution related to the
suppression and other activities of a fire.
2:04:28 PM
Co-Chair Stoltze recalled a prior conversation with Mr.
Balega and asked whether he believed the bill should be
amended. Mr. Balega replied that there had been discussion
about changing the law to apply to "propelled vehicles"
instead of "motor vehicles"; however, there had been
concern from a district attorney that the change may create
constitutional challenges on prior convictions. He wondered
whether DOL thought the law could be changed to read "motor
vehicle and/or propelled vehicle."
Co-Chair Stoltze communicated that the bill would remain as
it was. He communicated that work could be done to
determine another route for the additional item. He asked
whether Ms. Carpeneti concurred. Ms. Carpeneti agreed.
Representative Gara shared that he did not necessarily have
a problem with the bill, given that arson seemed to be
serious enough to fit in with conspiracy crimes. He
referred to the crime of aiding and abetting. He surmised
that a person was already covered under the aiding and
abetting crime if they purchased materials and provided
them to the arsonist. He surmised that conspiracy would
apply to all of the individuals that talked about
committing the crime; whereas, aiding and abetting covered
the person who purchased the materials.
Ms. Carpeneti replied in the affirmative. She expounded
that conspiracy applied to the individuals that talked
about the crime and intended for it to take place. She
explained that whether or not a person could be considered
an accomplice depended on the facts. Other offences
included solicitation and attempt. She discussed that the
harm in conspiracy is that the act of making the agreement
and intent to commit the crime make it more likely for a
crime to take place.
2:08:10 PM
Representative Gara asked for verification that aiding and
abetting resulted from an action, but that conspiracy
occurred when a person just agreed that something should
happen. Ms. Carpeneti replied that the explanation was
correct in most circumstances.
JOHN BOND, DEPUTY FIRE MARSHAL AND VICE PRESIDENT, ALASKA
ASSOCIATION OF FIRE AND ARSON INVESTIGATORS, ANCHORAGE (via
teleconference), spoke in support of the legislation. He
communicated that currently there was no way to charge a
person who conspired to commit arson if they did not
actually take any action related to the crime.
JEFF TUCKER, FIRE CHIEF, NORTH STAR FIRE DEPARTMENT AND
FORMER PRESIDENT, ALASKA STATE FIRE CHIEFS ASSOCIATION,
NORTH POLE (via teleconference), vocalized support for the
bill. The association felt that the legislation closed a
loophole in current statute and could provide a deterrent
for individuals who may consider committing arson.
LESLIE HOUSTON, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF CORRECTIONS (DOC), JUNEAU (via
teleconference), relayed that DOC would monitor its
database to determine whether there were any increases in
arson offences going forward.
Co-Chair Stoltze queried whether DOC had any expectations
or projections related to the indeterminate fiscal note.
Ms. Houston answered that it was not possible for the
department to have any projections at the present time.
There were currently twelve people incarcerated for arson
in the first degree, one person incarcerated for arson in
the second degree, and two people incarcerated for
attempted arson in the first degree. She explained that if
the legislation passed, the department would monitor the
incarceration rates to determine whether it led to any
significant increases to the prison population.
2:12:29 PM
DOUGLAS MOODY, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, ANCHORAGE (via teleconference), did not
believe the bill would have a significant impact on the
department, given that there were not many arson or
conspiracy cases. He confirmed that in most cases involving
more than one arsonist the extra people involved were
charged with accomplice liability or aiding and abetting.
He did not expect additional cases if DOL made no changes
to its practices because the crime of conspiracy would just
get filed in with the arson cases. He acknowledged the
potential for a case increase and the possibility that
young people could get roped into conspiracy charges where
the extent of their involvement was not clear. He believed
that it would be difficult for a kid to prove that they did
not intend for a crime to actually happen after they had
been present when the idea had been hatched. He relayed
that proving intent was very difficult to discern because
intent could only be inferred, unless both parties
specifically stated that they planned to carry through with
the crime. He discussed that in the case of wildland fires
children could intend to start a fire, but not necessarily
to start a wildland fire. He elaborated that conspiracy
could just grow; there was the potential to apply the
charge to a large group of kids that did not really mean to
start a fire. He relayed that arson in the first degree was
automatically waived for 16 and 17-year-olds. Arson in the
second degree would only be automatically waived under
certain conditions (e.g. if a person used explosives or had
"priors").
2:17:26 PM
Representative Edgmon believed the bill might have more
impact on the juvenile justice system than previously
thought. He wondered whether there would be an impact to
the fiscal note. Mr. Sica was not aware of the bill having
an impact on the juvenile justice system.
Representative Edgmon pointed to prior testimony and
thought there could be potential costs due to increased
cases. He communicated that he could have been missing some
of the information on the issue.
Co-Chair Stoltze noted that it was the departments'
responsibility to provide fiscal notes if they believed a
bill would cause a financial impact.
Ms. Carpeneti confirmed that arson in the first degree was
an automatic waiver for 16 and 17-year-olds. She clarified
that the bill should not have a disparate impact on
juvenile justice procedures. She elaborated that there were
not many conspiracy prosecutions in Alaska potentially due
to a lack of evidence or conspiracies. She detailed that
"chest beating" by young kids was not the same as intent
for a crime to be committed. She agreed that it was
unlikely that a significant number of prosecutions would
result from the passage of the bill.
Representative Gara believed there were positive and
negative aspects of the conspiracy law. The negative
component was that a child would have a hard time
convincing a jury that they did not intend to commit
conspiracy. The positive aspect was that it was more likely
the prosecution would succeed if there was a conspiracy
law, given that there was a larger pool of people to
provide evidence.
2:21:23 PM
Mr. Moody explained that it all depended on the
perspective. The advantage of a conspiracy statute was that
it could be broad; the defendant did not have to be the
person that committed the act; an agreement that could be
inferred from conduct was all that was necessary. He did
not know whether there would be a substantial advantage
added related to "rolling individual defendants from the
group." He believed that the police were effective
investigators because they were capable of "rolling people"
during the course of their investigations.
Ms. Carpeneti added that the prosecution had to prove that
a person committed a crime beyond a reasonable doubt; the
defendant did not have to say or prove anything.
Co-Chair Stoltze CLOSED public testimony.
Representative Wilson discussed that it was hard to know
the impact of the bill when the number of arson cases were
not readily available.
Ms. Carpeneti replied that she could follow up with the
data. She referenced Leslie Houston's testimony that there
were twelve individuals currently incarcerated for arson in
the first degree and one incarcerated for second degree.
She thought it was fairly clear that Alaska did not have
many prosecutions for arson; the cases were difficult to
prove because many times the evidence was destroyed in the
fire.
Representative Wilson was concerned about the intent
portion of the conspiracy law. Ms. Carpeneti replied that
there was a provision in statute for renunciation of a
crime, which was a defense against the crime of arson.
2:26:03 PM
Representative Doogan found it almost impossible that there
was no legal recourse against someone who hired a person to
burn a building down. He understood that it could be easier
if the bill passed, but he opined that many things would be
easier in the criminal justice system if the law allowed
it. He believed the issue was a balancing act and discussed
whether the benefit outweighed the gain to individuals'
civil rights. He did not believe a solid case had been made
for the proposed change. He discussed that the legislature
had been stiffening up the penalties for many of the items
it had been presented with. He believed that at some point
the practice needed to be stopped and surmised that given
the facts and numbers that had been presented perhaps the
current bill was the place to start.
Co-Chair Stoltze remarked that the discussion was relevant.
Representative Gara referred to the federal government
conspiracy law "RICO" that had been passed in order to get
a person to come forward with information about a crime
(specifically related to mafia crime). He believed that the
legislature should take a look at the conspiracy law at
some point in the future. He believed that arson was
serious enough that it should fit under the conspiracy law.
He wondered whether all property crimes were second degree
felonies. He thought it could be possible to save money
related to jail time and prosecution on the second degree
arson cases.
Co-Chair Stoltze asked whether the charges related to the
value of property and also the risk of life.
Representative Gara clarified that risk of life fell under
arson in the first degree. He wondered whether the penalty
for arson in the second degree could be reduced for
properties that were worth a small amount.
Ms. Carpeneti replied that arson in the second degree dealt
with damages to a building from a fire or explosion. Arson
in the third degree related to exploding a vehicle and
criminally negligent burning related to crimes that caused
less damage. She communicated that statutes did not include
monetary values under the various arson crimes. She
furthered that criminally negligent burning in the second
degree occurred when a person with "the culpable mental
state of criminal negligence damages property by fire or an
explosion," which was a class A misdemeanor. Criminally
negligent burning in the first degree applied to
individuals who had a prior offence in the previous ten-
year period. She believed a crime that involved a small
amount of damage would be charged as a misdemeanor under
criminally negligent burning.
2:31:41 PM
Co-Chair Thomas MOVED to report HB 56 out of committee with
individual recommendations and the accompanying fiscal
notes. There being NO OBJECTION, it was so ordered.
HB 56 was REPORTED out of committee with a "no
recommendation" and with one new indeterminate fiscal note
from the Department of Corrections, one new zero fiscal
note from the Department of Public Safety, and one new zero
fiscal note from the Department of Law.
2:32:36 PM
AT EASE
2:34:50 PM
RECONVENED