03/17/1995 01:22 PM House JUD

 HB 127 - 120 DAY JAIL: ASSAULT ON OFFICERS                                  
                                                                               
 Number 600                                                                    
                                                                               
 BRUCE CAMPBELL, Administrative Assistant to Representative Pete               
 Kelly, introduced CSHB 127, version F.  Sponsor statement:                    
                                                                               
 "It is the intent of this bill to enhance a serious tool for police           
 officers and others on the front line.  It will increase severity             
 of punishment for acts committed against a police officer while in            
 the performance of official duties.                                           
                                                                               
 "This bill sends a clear message to individuals that once the                 
 police arrive the fight must stop.  Alaska is not sending in our              
 `tag team blue' for the next round.  Expanding the fracas to                  
 include a police officer will result in jail time.                            
                                                                               
 "This bill also discourages an officer from `engaging in a fair               
 fight.'  There is no reason for such a fight to continue, and this            
 bill makes that quite clear.                                                  
                                                                               
 "Although initially intended as a tool for police, it has even more           
 meaning when applied to individuals with even less training or                
 expectation of dealing with persons physically.  Volunteers                   
 responding to a medical emergency or fire are neither equipped nor            
 trained to handle assault or violence directed against their                  
 persons."                                                                     
                                                                               
 MR. CAMPBELL explained that the essence of the committee substitute           
 is the same as the original bill, but they have expanded the                  
 language to include correctional nurses and parole/probation                  
 officers.  This language is better than that in the original bill,            
 which refers to peace officers and correctional officers.  In                 
 working with the Department of Law, it was found that those terms             
 did not actually address the issues they were considering.                    
                                                                               
 Number 690                                                                    
                                                                               
 FATE PUTMAN, Alaska State Employees Association (ASEA), stated that           
 ASEA is the organization who requested these changes.  They are in            
 support of the bill and of the committee substitute, which would              
 deter criminal behavior against members of their organization,                
 particularly people who work in correctional institutions, such as            
 nurses and probation officers.  The state is concerned with their             
 well-being, and believes there should be a punishment if they are             
 assaulted.                                                                    
                                                                               
 JERRY SHRINER, Special Assistant, Office of the Commissioner,                 
 Department of Corrections, noted that the previous two speakers had           
 said most of what he wanted to say.  The Department of Corrections            
 does support this bill, particularly as modified to include                   
 correctional employees.  He said people who may be prosecuted under           
 this bill would more likely fall into the peace officer and                   
 emergency responder categories than in the correctional employees             
 category.  Nevertheless, he believes it is important in terms of              
 employee morale to know that their employer is behind them in the             
 performance of duties that can be dangerous and certainly stressful           
 every day that they go to work.  We want them to know that we are             
 behind them.  In most incidents occurring in institutions, there              
 are a variety of ways in which these problems can be dealt with.              
 They can take good time away or isolate individuals without                   
 charging the person with an offense.  They probably will continue             
 to do that inside institutions, so he does not expect that there              
 will be a significant number of new cases.  But again, we want our            
 employees to know that we are behind them, and we are glad that               
 they are specifically named in this.                                          
                                                                               
 REPRESENTATIVE BUNDE felt that occurrences of this nature taking              
 place inside a correctional facility should not necessarily affect            
 the fiscal impact.                                                            
                                                                               
 REPRESENTATIVE TOOHEY asked if a contract employee would also fall            
 into this protected category.                                                 
                                                                               
 MR. CAMPBELL said he did not know, but perhaps Margot Knuth would             
 know.                                                                         
                                                                               
 Number 745                                                                    
                                                                               
 CHAIRMAN PORTER stated that if a person were not covered as an                
 employee, he/she would certainly still be covered as a private                
 citizen.                                                                      
                                                                               
 REPRESENTATIVE VEZEY asked what the maximum penalty is for assault            
 in the fourth degree.                                                         
                                                                               
 ANNE CARPENETI, Committee Aide, House Judiciary Committee,                    
 explained that it would have the same penalty as for a class A                
 misdemeanor, according to Mr. Luckhaupt, which is one year maximum            
 in prison.                                                                    
                                                                               
 REPRESENTATIVE VEZEY wondered what the need was to raise the                  
 minimum sentence from 30 days to 120.  If someone was found guilty            
 of a violent act, they could be given a year right now.                       
                                                                               
 MR. CAMPBELL said he would not pretend to be replacing something.             
 The questions seem to be relatively legal in nature here.  If                 
 somebody committed an act that was particularly egregious, then it            
 would be subject to a higher level of penalty, and would be under             
 either a felony assault or another higher penalty phase.  That is             
 why, in this amendment, we now have four pages, because we have               
 added and corrected the phrase "correctional employee" in the                 
 assault statutes, so we are not dealing just with the fourth degree           
 assault level that we were initially starting out with.  Those also           
 include the areas of specificity, those existing statutes for                 
 felonious assault, or whatever they are referred to in a legal                
 phrase.  Those have special sentencing sanctions and minimum                  
 sentencing for assaulting correctional officers, and this would               
 expand the language to include correctional employees.                        
                                                                               
 REPRESENTATIVE VEZEY said that did not answer his question, because           
 he was referring only to Section 5 where we are talking about                 
 assault in the fourth degree, which is already a class A                      
 misdemeanor.  He was curious why they only wanted to raise the                
 minimum sentence from 30 days to 120.  He could visualize some                
 situations of assault in the fourth degree which are not exactly              
 life threatening.  Would we really want to put somebody in jail for           
 120 days for assault in the fourth degree?  Punching someone in the           
 nose is an assault in the fourth degree.                                      
                                                                               
 MR. CAMPBELL said these issues are a little out of his realm, but             
 the initial discussion with the police officers they talked with,             
 particularly Chief Gunn, is that in their experience, something               
 like punching a police officer, in most jurisdictions, gave them an           
 automatic felony sentence.  It automatically jumped it from a                 
 misdemeanor into the felony category.  We did not go that far.  We            
 simply raised the minimum time of sentencing from 30 to 120 days,             
 rather than changing the issue from fourth degree assault to                  
 felonious assault, just because it was a police officer.  Deputy              
 Chief Gunn found this to be a particularly effective means of                 
 deterring and essentially bringing to a stop, fights.  When the               
 police arrived, the fight was over.  You were not throwing in `tag            
 team blue' to see who had the best wrestling match.  Not all                  
 people, but many people understood that because there was a police            
 officer arriving, to continue the issue and drag the police officer           
 into a fight or carry on in that fashion, is a much more serious              
 issue.                                                                        
                                                                               
 REPRESENTATIVE VEZEY did not realize that what they were trying to            
 address here was reluctant arrestees.  That certainly is a problem,           
 and people probably do not give consideration to what the penalties           
 are when they get into fisticuffs with a police officer.  We are              
 talking about correctional employees, that is what the change is              
 here.  We are talking about the institutional employee.  Do we                
 really want to raise the minimum time in jail from 30 days to 120             
 days for fourth degree assault?  That is not really a physical                
 endangerment.  It is just an assault.                                         
                                                                               
 MR. SHRINER said that inside the institution, by expanding this to            
 include correctional employees, that includes a significantly                 
 larger number of people than if we said correctional officers.                
 Correctional officers, to some extent, while they certainly do not            
 expect to be assaulted as part of their occupation, are trained to            
 deal with a different level of behavior than, for example, a                  
 teacher, or mental health worker, or some other nurse who is one of           
 our employees, those people would be more protected if higher                 
 consequences awaited the potential offender.  Those workers within            
 an institution have more narrowly defined roles in ability to                 
 arrest.  They frequently make home visits in situations where they            
 do not carry weapons, and where they are not always sure what the             
 situation is going to be when they get there.  This is not a                  
 frequent occurrence, but he believed it was worthwhile to the                 
 extent that this gives them some additional protection, and it is             
 worth the effort to try it.                                                   
                                                                               
 REPRESENTATIVE BUNDE felt that someone guilty of punching an                  
 officer in the nose has committed a far more serious offense than             
 someone who gets in a fender bender and punches a civilian in the             
 nose.  That is why officers wear uniforms.  You know who is in                
 charge.  He would certainly endorse placing a serious consequence             
 on people who want to be violent.                                             
                                                                               
 REPRESENTATIVE FINKELSTEIN had concerns in a situation where                  
 someone goes and punches the police officer in the nose and is                
 guilty of fourth degree assault, and is already subject to a year             
 in jail.  He would be interested to see what the sentencing pattern           
 is.                                                                           
                                                                               
 TAPE 95-31, SIDE B                                                            
 Number 000                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN continued.  He guessed the low end of              
 this category is people who are drunk, and where the action was               
 clearly not premeditated.  Perhaps they are whaling on somebody               
 else, the officer intervenes, and they get some degree of assault.            
 Certainly, if they take a pounding and suffer some actual damages             
 of assault, the penalty should be higher.  If there is a weapon               
 involved, it goes to higher levels.  This is the very bottom level.           
 Is there something out there in the world of these actions where a            
 person hits the officer, and quickly realizes that, "Whoops! I'm in           
 a new world now."  Is there some place out there that ought to be             
 the low end?  The judge is going to have discretion to give                   
 anywhere between nothing and a year.  Is there never going to be a            
 situation where the person realizes quickly what they have done,              
 and it does not cause any damage to the officer, does not do any              
 damage at all, and quickly reverses himself, that it would be                 
 appropriate for something more on the order of 30 days?  That was             
 his question.                                                                 
                                                                               
 REPRESENTATIVE BUNDE said he guessed they did not need to talk                
 about prosecutorial discretion and jury trials, and that sort of              
 thing.  Many first time misdemeanants do not get any jail time at             
 all.  To jack it from a potential 30 days to 120 days is just a               
 reflection of a step up in the violation of civil order, when you             
 attack a police officer, whether intentional or unintentional.                
                                                                               
 REPRESENTATIVE VEZEY felt we were wrestling with taking away the              
 court system's ability to have some control over the population of            
 our prisons.  If we are going to deny them any flexibility in                 
 sentencing, and we do not have much flexibility on how we fund                
 Corrections, that is what it comes down to.  If we are only talking           
 about a very small number of cases, but if we are going to mandate            
 how long people stay in jail for every crime, regardless of the               
 mitigating circumstances, we are just going to have to open up our            
 wallets and build more prisons.                                               
                                                                               
 CHAIRMAN PORTER did not disagree with the concerns that have been             
 expressed, but from his obviously biased position, he felt assaults           
 on peace officers and other first responders in emergency                     
 situations were serious offenses.  It is not unusual for our                  
 statutory structure to require mandatory sentences for serious                
 offenses.  We have had that in place for some time.  These kinds of           
 things do not happen very often anymore, but they used to.  This is           
 either due to societal changes or is the result of this kind of               
 legislation.  In getting down to a fundamental level, when he                 
 started in law enforcement, if someone took a poke at a police                
 officer, the police officer was entitled to take a poke back.  He             
 or she is not now.  This kind of provision makes up for that                  
 imbalance.  It is an infrequent event, and is, consequently,                  
 admittedly, more of a statement of recognition by us to these                 
 people that we appreciate the jeopardy they are placing themselves            
 in on our behalf, and we will do what we can to support that                  
 effort.                                                                       
                                                                               
 REPRESENTATIVE GREEN said it used to be in a tort situation that if           
 `A' intended to do something to `B', but missed and hit `C', there            
 was thing called "transfer of intent" and there was a question                
 asked earlier about an officer stepping in between two fugitives.             
 Does this imply that there could be that transfer of intent, or               
 would it have to be an overt action?                                          
                                                                               
 CHAIRMAN PORTER said to charge and convict under this statute, you            
 would have to be able to establish intent to assault on a specific            
 correctional officer.                                                         
                                                                               
 REPRESENTATIVE BUNDE said if there is something going on that                 
 causes a police officer to be assaulted, there is probably an                 
 accompanying crime; and one of the tools our judicial system uses             
 is to place multiple charges on the defendant, which has impact on            
 the sentence.  He has known of a situation in which a police                  
 officer was assaulted, and he would have been very happy to see a             
 compound sentence.  Expanded and compounded sentences are justified           
 for this type of conflict.                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN said he assumed that at the low end of             
 fourth degree assaults involving an officer, most of these would              
 involve alcohol.                                                              
                                                                               
 CHAIRMAN PORTER said most of the criminal offenses we deal with               
 involve alcohol in some respect.                                              
                                                                               
 REPRESENTATIVE FINKELSTEIN said though alcohol influence does not             
 excuse anyone's actions, however, downtown bar brawls go on all the           
 time.  A person is not going to have in mind that they might get              
 120 days instead of 30 days.  The influence of alcohol will prevent           
 that incentive.  It would not work at that level.  It would not               
 happen in a situation like that.  There are plenty of cases  where            
 a person deserves a year, but there are also cases where 30 days              
 would be appropriate.  Societal interests are not being served by             
 giving someone 120 days.  When there is no other aggravating                  
 factors, 30 days is still a pretty serious sentence.                          
                                                                               
 CHAIRMAN PORTER concluded the public hearing.                                 
                                                                               
 Number 125                                                                    
                                                                               
 REPRESENTATIVE BUNDE made a motion to move CSHB 127(JUD) out of               
 committee with individual recommendations and attached fiscal                 
 notes.  Seeing no objection, it was so ordered.