Legislature(1997 - 1998)
04/30/1998 01:25 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 218(FIN) - CRIMES OF MURDER & CHILD MURDERS Number 0519 VICE CHAIRMAN BUNDE announced the committee would hear CSSB 218(FIN), "An Act relating to the crimes of murder, manslaughter, and criminally negligent homicide; relating to homicides of children; and relating to the crime of interference with custody of a child or incompetent person," sponsored by Senator Halford. Number 0550 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, came before the committee to explain CSSB 218(FIN). He stated the death of a child is always among the gravest of situations under any circumstance. When a child's death results from the commission of a crime, the consequences should be certain and the punishment should be severe. Mr. Huber explained that Senator Halford introduced the legislation to give law enforcement, prosecutors and the courts additional tools to address crime involving the murder of children. MR. HUBER informed the committee that CSSB 218(FIN) amends the current law by adding a new form of first degree murder when the death of a child results from the commission or attempted commission of kidnaping or a sexual offense. It expands the list of offenses constituting felony murders and includes sexual abuse of a minor in the first and second degree. It also elevates criminally negligent homicide from a Class C to a Class B felony. It establishes a 20-year mandatory minimum sentence for a person convicted of a murder of a child under the age of 16. It increases the mandatory minimum sentence from five to seven years for manslaughter when the victim is a child under the age of 16. The legislation also establishes a new sentencing provision, which allows for a term of unsuspended imprisonment that exceeds the presumptive term for certain felony offenses if the victim is a child under the age of 16. Mr. Huber explained the bill would also establish the crime of custodial interference in the first degree if a person violates AS 11.41.330 and causes a child or incompetent person to be removed or kept outside the state. He explained that children are society's most vulnerable members and they deserve the most responsible level of care when entrusted to an adult. MR. HUBER explained the bill is intended to establish a level of punishment that's more commensurate with the severity of the crime and send a clear message of deterrence. If a criminal act results in the death of a child, you're going to go to jail for a very long time. He stated the Alaska Peace Officer's Association and Victims for Justice endorses the legislation. Number 0680 VICE CHAIRMAN BUNDE explained the committee also worked on HB 375 which addresses elevating the charge in the murdering of a child. He asked if the bills are complementary or contradicting in any way. MR. HUBER informed the committee stated HB 375, as well as the Senate's companion measure, do include some of the provisions of this bill. The companion measure in the Senate moved out of the Senate Health, Education and Social Services (HESS) Committee the previous day. The provisions of the Senate's companion bill that were duplicative of CSSB 218(FIN) were removed. He noted he doesn't see a problem with the provisions being contained in both vehicles. VICE CHAIRMAN BUNDE asked, "Is it the intent that if a child is killed in an automobile accident and the charge of manslaughter [is] brought that -- I guess in my mind, sometimes they use manslaughter when they would like to do murder, but there isn't quite the evidence. But in other cases, it truly is a case where the charge of murder isn't warranted and I was just wondering if all the cases of manslaughter would then be elevated? Is that the intent?" MR. HUBER said referred to page 4, subsection (A) and said it has the 5-year sentence for other cases of manslaughter and then (B) offers, "for manslaughter and the victim is a child under the age of 16, 7 years. So it only elevates 5 to 7 years in the case of the victim is a child under the age of 7. Number 0804 REPRESENTATIVE BERKOWITZ said, "I have the same recollection of what we talked about in [HB] 375 is that we modified the definition of 'manslaughter' for the elevated penalties is to ensure that manslaughter with elevated penalties only apply to the crime. I believe it -- Kevin might have the wording and if I could ask him to say what it was." KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, came before the committee. He referred to "manslaughter," and said the language adopted in HB 375 stated that for manslaughter and the conduct resulting in a conviction was knowingly directed toward a child under the age of 16 would be 7 years. VICE CHAIRMAN BUNDE said, "And then my question about an automobile crash - obviously in that case, I wouldn't be knowingly directed against the child." MR. JARDELL said if his recollection is correct, that was the debate - to have some causal connection to the child's age. VICE CHAIRMAN BUNDE asked if that definition of manslaughter would be applicable to CSSB 218 or does it need to be redefined to maintain consistency with HB 375. MR. JARDELL said if the manslaughter provision is kept the way it is in CSSB 218, then it would encompass all the situations in HB 375. It wouldn't necessarily be inconsistent, but it would take a lot of cases that HB 375 would exclude and include them. Number 0935 VICE CHAIRMAN BUNDE said he would like to propose a conceptual amendment. He said, "To try to keep this consistent with [HB] 375 so that manslaughter is knowingly. And then I would ask Mr. Huber to comment on that proposed amendment." MR. HUBER said, "I can only think of a few concerns, the first concern being, of course, we're late in the session now. The bill has not yet been amended in this body - would require a concurrence. I think that would be the first concern. And it's my understanding that there is certainly a degree of prosecutorial discretion of what level of charges brought depended on the circumstances of the incident that took place. I think between first and second degree murder and then manslaughter and criminally negligent homicide there is an opportunity for both the officers and the prosecutors involved to use some discretion on what charges are involved." REPRESENTATIVE BERKOWITZ said there is always discretion of which charge you can bring, but if you opt for a manslaughter charge, there is no discretion and you have a victim under 16. You're either in the manslaughter realm or you're out of the manslaughter realm. That is the discretion. He indicated the bill would prevent any discretion. Representative Berkowitz said you could always aggravate the sentence or argue for an aggravation of sentence. He said, "I think that while we incorporate the aggregator that the conduct was knowingly directed towards a victim under the age of 16, that's the kind of aggravator that's appropriate. I'm concerned about those DWI (driving while intoxicated) cases and I'm not trying to minimize this, they're tragic, but it's a different type of tragedy. And the punitive part should be viewed differently, that's where you need the discretion." Number 0927 REPRESENTATIVE PORTER asked if there is a fiscal note from the Department of Corrections. MR. HUBER stated there is a zero fiscal note from the Department of Corrections. VICE CHAIRMAN BUNDE called for a brief at-ease for the purpose of proposing an amendment. Number 1111 VICE CHAIRMAN BUNDE called the meeting back to order and asked Mr. Jardell if he had some proposed amendatory language. MR. JARDELL responded that the committee could use some of the same language that is in HB 375 which reads after the word "the," insert "conduct resulting in the conviction was knowingly directed toward a child under the age of 16." He noted that would be on page 4, line 16. REPRESENTATIVE PORTER interjected, "Also on line 27." VICE CHAIRMAN BUNDE asked if there was an objection to the amendment. There being none, the amendment was adopted. CHAIRMAN GREEN returned to the meeting and Vice Chairman Bunde explained the amendment to him. Number 1203 CHAIRMAN GREEN asked, "Does partial incapacitation get over here if the person is drunk driving an automobile [and] doesn't intend to knowingly hit the child, but is out of whack?" Number 1226 REPRESENTATIVE NORMAN ROKEBERG said, "Just a point of information, Mr. Chairman, we're making the manslaughter conviction on a knowingly but (indisc.) basis. In this state, do we ever prosecute under first or second degree murder for a vehicular accident if it was really aggravated, and then wouldn't the same principle apply then?" REPRESENTATIVE PORTER said "knowingly" is in the wrong place. He said, "What we have done is said that if you have committed manslaughter under the elements of manslaughter, which isn't knowingly, but knew that whatever your action was put a child in jeopardy in effect, then you're presumed for a 7-year sentence instead of a 5." REPRESENTATIVE ROKEBERG questioned why that wouldn't apply to a homicide. REPRESENTATIVE BERKOWITZ said Section 5 sweeps up Representative Rokeberg's concern. He said, "You can charge murder two if the victim is under 16. It will cause all the elements of homicide, which are elevated over the elements of manslaughter in terms of level of proof. See, all we've done with the manslaughter is say the only part that has an elevated level is if you have to know that the victim was 16. With manslaughter or with homicide, all the elements have to be at a higher level of proof." REPRESENTATIVE ERIC CROFT referred to page 3, Section 5, and said, "Defendant convicted of murder, and going to your point, that if it's -- we don't have to say there 'and knew it was child,' because once we're in murder and say, 'murder of a' -- on page 3, line 25, 'is convicted of the murder of a child,' the court is going to read 'knowingly' into that because it's an element of a murder charge." Representative Croft stated, "We are not making it a knowingly manslaughter. We're making it manslaughter with all its criminal, negligence, recklessness-type standards, but then the 'knowingly' comes in only for the age of the victim." Number 1401 MR. HUBER said one important provision to point out that is contained in CSSB 218 that isn't in HB 375, is the elevation of a Class C felony to a Class B felony for criminally negligent homicides contained in Section 3. That provision is not contained at all in HB 375 and the Department of Law agrees that it is an important provision to have in the bill. REPRESENTATIVE BERKOWITZ asked how many (indisc.) cases do we have in the state annually. DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, came before the committee. He explained the number is fairly small, probably about six or less every year. Mr. Guaneli referred to the provision of making criminally negligent homicide a Class B felony and said the way the criminal homicide statutes are currently structured, there is first and second degree murder and then there is manslaughter is a Class A felony. Criminally negligent homicide is a Class C felony which makes it comparable to burglary of a warehouse or stealing a television set worth more than $500. It is comparable to a fairly low level felony conduct. The idea to elevate it to a Class B felony, so there is not that great distinction between manslaughter and criminally negligent homicide, has been around for a long time. Mr. Guaneli referred to the Sentencing Commission that met in the early 1990s, which he was a member of, and said a majority of that commission voted that this should be a change in the law. He said a lot of defense attorneys tend to think this might be a good result in a lot of cases -- a lot of cases where prosecutors are unsure whether they'll get a Class A felony manslaughter conviction, don't want to agree to a Class C felony criminally negligent homicide conviction, they might feel better about something in the middle, a Class B felony negligent homicide conviction. He stated he believes a lot of defense attorneys think that they may be able to negotiate pleas that might be more appropriate to the particular circumstances. MR. GUANELI said, "The other thing that we have found, particularly in child homicide deaths, some of them do end up criminally negligent homicide for one reason or another. The kinds of sentences that we have seen in those cases are typical of other criminally negligent homicide sentences and they're in the 1-year to maybe 18-month range. A lot of people feel that for the death of a child, that's just too little. And so a Class B felony range, which is more in the 2- to 3- to 4-year range, people feel a lot more comfortable with. And so that was the reason why this was suggested. This was originally in [HB] 375, and I had a big fight with the legislative attorneys who won out saying that there was a single subject problem and so Senator Halford's bill didn't have the problem in it and so it's here. That's why I prefer this bill rather than the comparable homicide provisions in [HB] 375." Number 1572 CHAIRMAN GREEN said, "Is it your understanding, I think we've discussed this before, when you have an omnibus bill like that, there is section -- assuming both were to pass, this is an elevated penalty. Would that then, in bill drafting -- and you pass both of them. The net result of statute would be the more -- this would take precedent over what's in [HB] 375?" MR. GUANELI responded, "Mr. Chairman, I believe that because HB 375 does not make any change in this particular provision and this bill does, that the bill that makes the amendment would take effect." Number 1607 REPRESENTATIVE BERKOWITZ referred to Class B felonies and said there was the Jackson case where there is mandatory minimums. He asked if that will have any impact of suggested minimums, through the court, on first felonies. MR. GUANELI explained that the Jackson case suggested a sentence benchmark range, generally in the 1- to 3-year area, the 1-year side being for mitigated offenses and the 3- to 4-year side being more aggravated Class B felony offenses. He noted that was guidelines by the court. It wasn't presumptive sentencing or mandatory minimum sentencing. Number 1643 REPRESENTATIVE PORTER made a motion to move CSSB 218(FIN), as amended, from committee with individual recommendations and with the zero fiscal note. There being no objection HCS CSSB 218(JUD) moved out of the House Judiciary Standing Committee.
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