Legislature(1999 - 2000)
03/03/1999 01:10 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 3(RLS) - CRIMES OF MURDER & CHILD MURDERS CHAIRMAN KOTT announced the next order of business is, CSSB 3(RLS), "An Act relating to the crimes of murder, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, manslaughter, and criminally negligent homicide; relating to homicides of children; relating to registration as a sex offender or child kidnapper; relating to the crime of interference with custody of a child or incompetent person; and providing for an effective date." CHAIRMAN KOTT called on Juli Lucky, staff to Senator Rick Halford, sponsor of the bill. Number 1638 JULI LUCKY, Researcher for Senator Rick Halford, Alaska State Legislature, stated the bill should be familiar to the committee members. It was heard last year as SB 218 and received seven due passes. It is basically the same bill. Senator Halford would like to send a clear message with this bill, that being "if you kill a child you will go to jail for a long time." She cited the Tellsworth case whereby a child was killed by a day care provider and the mother of that child had to go through a long trial, pleading and sentencing. She referred to a letter dated July 23, 1998 from the Department of Law to Senator Randy Phillips that says, "Indeed, were it not for the powerful and moving testimony and letters of Linda Tellsworth and her family and friends, we might not have gotten the sentence that we did in the recent case of the murder of Kyle Tellsworth." The judge in this case stated during sentencing that the criminal would probably get five and one-half years due to good time and suspended sentencing. That was the reason for sponsoring this type of legislation. Under SB 3, the criminal would have to spend substantially more time. Ms. Lucky stated the bill does the following: - adds a new form of first-degree murder when the death of a child results from the commission or attempt of kidnapping or of a sexual offense; - expands the crime of felony murder to include sexual abuse of a minor in the first and second degrees; - adds a new form of second-degree murder when a death of a child was caused with criminal negligence and the offender has a previous conviction of certain crimes against a child; - elevates criminally negligent homicide from a class C to a class B felony; - establishes a twenty year mandatory minimum sentence for a person convicted of a murder of a child under the age of sixteen; - increases the mandatory minimum sentence from five to seven years for manslaughter, when the victim is a child under the age of sixteen; - establishes a new sentencing provision, which allows for a term of un-suspended imprisonment that exceeds the presumptive term, for certain felony offenses if the victim is a child under the age of sixteen; - expands the crime of custodial interference in the first degree to include the act of keeping a child or incompetent person outside of the state; and - elevates solicitation of murder to an unclassified felony. Number 1756 REPRESENTATIVE MURKOWSKI stated last year the bill enjoyed unanimous bipartisan support, and asked Ms. Lucky what the differences are between last year's bill and this year's bill. MS. LUCKY replied there are a few inclusions in this year's bill. The first inclusion ups solicitation of first-degree murder to an unclassified felony bringing it in-line with crimes of conspiracy to commit first-degree murder. Another inclusion deals with sex offender registration. Senator Halford believes that an attempt to commit a crime of sexual abuse or assault of a minor should be registered in the sex offender registry. There are also some applicability sections that were added. Number 1812 REPRESENTATIVE CROFT asked Ms. Lucky which sections in the bill refer to sex offender registration. MS. LUCKY replied Sections 11, 12, and 13 add offenses to the definitions that are now in the sex offender registry statute. The the definition of "aggravated sex offense", "sex offense" and "child kidnapping" are being added, respectively. The bill adds felony murder one and two to those definitions. The applicability is in Section 15. CHAIRMAN KOTT noted that the language "shall register" in on page 9, line 6. Number 1864 REPRESENTATIVE ROKEBERG stated he does not see a fiscal note in the bill packet. He is curious about the elevation of criminally negligent homicide from a class C to a class B felony, and the increase in the mandatory minimum sentence from five to seven years for manslaughter. He asked Ms. Lucky whether the theory behind the bill is to create a special crime for violence against a child. MS. LUCKY replied the criminally negligent homicide provision would affect the statute for everyone by upping it from a class C to a class B felony. The manslaughter provision was discussed last year and ups the sentence for crimes committed against children under the age of 16. In other words, if a person is guilty of a crime of manslaughter and those action harmed a child under the age of 16, the sentence would be the higher of the two. REPRESENTATIVE ROKEBERG stated he is troubled that the provision for a criminally negligent homicide is across the board and not specifically towards a child. He noted when the bill was passed last year the state was in a different financial situation. He is concerned about the fiscal impact. CHAIRMAN KOTT noted that the committee has requested fiscal notes from the Administration which have not been received yet. The committee aide will provide a copy of the fiscal notes that were transmitted with the bill. Number 1800 SENATOR RICK HALFORD, Alaska State Legislature, noted that the Department of Law requested the change in manslaughter. [THE REST OF HIS TESTIMONY IS INAUDIBLE DUE TO PAPER SHUFFLING] Number 2024 REPRESENTATIVE CROFT referred to Section 2(a)(3) and asked Ms. Lucky whether a person would be registered as a sex offender if that person commits a crime of kidnapping that is not of a sexual nature. The language reads, "...the person commits or attempts to commit a sexual offense or kidnapping against a child under 16 years of age...". MS. LUCKY replied the term "child kidnapping" is already defined in statute, and Section 12 of the bill would add the crimes dealing with kidnapping to that definition. REPRESENTATIVE CROFT stated that even though it is referred to as a sex offender registry it really is a child kidnapper or sex offender registry. MS. LUCKY replied correct and noted Section 12 (C) is the part that already exists in statute. Number 2080 REPRESENTATIVE ROKEBERG stated he was not aware that kidnapping is a part of the sex offender registry. He wondered if a parent kidnaps that parent's own child would that parent be a part of the sex offender registry. Number 2096 REPRESENTATIVE CROFT stated he believes there is a distinction between child abduction and kidnapping. REPRESENTATIVE ROKEBERG wondered whether that was litigated under Megan's Law in the supreme court. REPRESENTATIVE KOTT opened the meeting up to public testimony. Number 2132 DAVID HUDSON, First Sergeant, Division of Alaska State Troopers, Department of Public Safety, testified via teleconference from Anchorage. He noted that Section 3 of the bill needs to be more specific to consider a prior qualifying conviction to demonstrate a clear nexus to the crime at hand. For example, AS 11.41 includes indecent exposure, and a defendant could argue that a prior conviction of indecent exposure has little to do with that defendant's current conduct and it should not be used to enhance that defendant's criminal liability. Number 2193 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. The bill makes a significant change in homicide laws. Homicide has traditionally been divided into different degrees of seriousness based on mental states. The bill changes that and makes a classification based on the status of a victim as a child. Traditionally, first-degree murder was premeditated or intentional. Second-degree murder was lesser but still a very serious type of mental state. Felony murder was when a person not participating in the crime died in the commission of a serious felony. Manslaughter was reckless types of conduct, not intentional types of conduct. Criminal negligent homicide was death caused by criminal negligence. He reiterated the bill would change a well-ordered system. In addition, there are others who deserve the type of protection under the bill such as the elderly, infirm or any other vulnerable victim. An "aggravator" is already defined in statute and used to enhance sentencing when a victim is vulnerable. In addition, Section 4 would raise all criminally negligent homicides to a class B felony, such as a death from a traffic accident. This is quite a change in the law. The division has submitted an indeterminate fiscal note because there would be more trials and pleas, but the fiscal impact is indeterminable. Number 2324 REPRESENTATIVE KERTTULA referred to Section 2, lines 12-20, and wondered whether the direction is changing from a person's mental state to criminal negligence. MR. McCUNE replied it makes a fairly restrictive offense involving torture or physical assault a first-degree murder by virtue of criminal negligence. The conduct language directed toward the child was placed in the bill last year at the request of the Department of Law so that it is clear it would only involve cases directed towards a child and not just that a child died in the course of another incident. Number 2424 MR. T. CALDER testified via teleconference from Fairbanks. He stated he is fascinated with the remarks by Mr. McCune. The legislature doesn't have any business tampering with the criminal code. He knows that it can do it, but the history of crimes against children committed under the collar of the law is a much more serious problem. He has witnessed criminal activity under the collar of the law against his own child and has not been able to find a state official to address the problem in spite of laws that already exist. "We're just completely missing the boat here now to shuffle around the criminal code and try to tighten things up and, you know, up the ante on some of this." There are already laws on the books for this... TAPE 99-9, SIDE B Number 0001 MR. T. CALDER continued. The difficulties that citizens have when their rights have been violated by governmental entities should be the top legislative priority and really the only purpose for the existence of the legislature. He can appreciate the position of the law enforcement officer who spoke earlier and understands the frustration of making a criminal a defendant in a legal action that is not fairly judged in the interest of the people. That is a real problem, but shuffling the words around in the bill and essentially using children for this type of legal manipulation is dangerous. He stated he would be happy to provide further information on the criminal kidnap and torture of his own son by the Department of Health and Social Services, Department of Law, Department of Revenue and the court system. In conclusion, he stated if someone really wants to shuffle the criminal code around, the crime of genocide should be defined and lesser offenses. That person would be providing a valuable public service. CHAIRMAN KOTT noted there is something going on with the existing system which is why the bill is being taken up. Number 0098 ROBIN LOWN, Vice President, Alaska Peace Officers Association (APOA), testified in Juneau. The APOA supports SB 3. The association consists of 1,100 members from all law enforcement agencies in the state. Number 0128 CHAIRMAN KOTT asked Mr. Lown whether the APOA has discussed any part of the bill in detail. MR. LOWN replied the association has reviewed the bill in general. It has not focused on any specific area. However, in response to today's testimony, he agrees with First Sergeant Hudson's opinion and Mr. McCune's opinion relating to intent. Number 0174 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, testified in Juneau. The division supports SB 3. It is substantially similar to provisions in the Governor's Child Protection Bill (HB 375) that passed last year. The additions made to the bill since last year are logical and make sense. In reference to child kidnapping, the legislature adopted a bill last year in response to federal requirements to add it to the sex offender registry. It is now called the "Sex Offender and Child Kidnapping Registry". Number 0215 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the Act was called. MS. CARPENETI replied it was called the Wetterling Act. In addition, the reason for suggesting an increase in criminally negligent homicide was because in statute homicides are either murder in the first or second degree unclassified felonies. Manslaughter is a class A felony, and criminally negligent homicide is a class C felony. The gap is not appropriate, particularly when car theft, failure to register as a child sex offender or kidnapper in the first degree are class C felonies. It seemed that criminally negligent homicide, causing the death of another person through criminal negligence, is serious enough to be classified as a class C felony. It also makes more sense in charging and processing cases. When considering charges of manslaughter, a class A felony, prosecutors think about resolving the case short of a trial. Therefore, they would be more likely to resolve a case with a charge of criminally negligent homicide if it was a class B felony. It makes more sense. It would up some cases to a B felony and many cases would come down from an A to a B felony. The effect wouldn't be that great in terms of corrections and costs. Number 0319 REPRESENTATIVE CROFT stated in reference to kidnapping one's own child, AS 11.41.300 provides a defense if that person is a relative and the victim is a child and the primary intent is to assume custody. It criminalities it at a different level. It is still criminal, but different than kidnapping. He asked Ms. Carpeneti whether that would come under the sex abuse or kidnapping registry. MS. CARPENETI replied no. It is treated as custodial interference in the first degree - a class C felony. Number 0350 REPRESENTATIVE CROFT referred to Section 3(5), and stated the bill would punish criminally negligent homicide with the death of a child and hook it to some of the fairly minor crimes in AS 11.41, such as extortion and indecent exposure. He asked Ms. Carpeneti for a good example of criminally negligent homicide. MS. CARPENETI replied reckless driving and causing a death. AS 11.41 are crimes against a person and she agrees it is a broad coverage and it is getting broader as offenses are added to it. She suggested breaking down some of the more serious offenses. She noted that assault in the fourth degree is the crime that most domestic violence cases are resolved under. It can be very serious. Number 0443 CHAIRMAN KOTT referred to Section 2(2) and stated, according to his understanding, it is a two-prong test. MS. CARPENETI stated under the old common law intentional killings were generally first-degree murders. In 1988, the legislature passed AS 11.41.100(2), but it hasn't been used because it is difficult to prove a pattern or torture. The purpose of the child protection law is to elevate the safety of the children of the state and make it more serious to cause their death. The changes in the bill were suggested to make it easier to prove beyond a reasonable doubt that a person causing serious physical injury twice on the same child could be charged with first-degree murder. Number 0508 REPRESENTATIVE CROFT noted that he sees how a pattern or practice could be difficult to prosecute, and asked Ms. Carpeneti whether changing the language from extreme indifference to criminally negligent is substantial as well. MS. CARPENETI replied it is two acts and the person must knowingly engage in conduct directed towards a child. It is a big change, but the working group felt that it justified persecution for first-degree murder. Number 0550 REPRESENTATIVE CROFT stated the language in Section 2, starting on line 12, "...knowingly engages in conduct...", doesn't incorporate a standard. MS. CARPENETI noted the language reads, "...directed toward a child...". REPRESENTATIVE CROFT noted that the acts are separate, but the language doesn't read, "knowingly engages in criminally negligent conduct." MS. CARPENETI replied the way the bill is drafted now the result of the action must be criminal negligence. Number 0598 REPRESENTATIVE ROKEBERG referred to Section 5, and asked Ms. Carpeneti whether a person who knowingly takes a child out of the state and that child is killed in a reckless manner, such as a car accident, could that person be accused of second-degree murder in the state of Alaska. MS. CARPENETI replied no. There has to be two separate instances. A conviction generally includes a person being charged, found guilty, and sentenced. Thus, unless that person has been convicted of a violation in the first degree it would not count under second-degree murder. Number 0677 REPRESENTATIVE CROFT asked whether a person could be charged with second-degree murder if that person has been convicted of custodial interference then under lawful custody drives recklessly with that child. MS. CARPENETI replied yes. She suggested going through AS 11.41 and deciding which person-crimes are serious enough to justify this. Number 0713 REPRESENTATIVE CROFT asked Ms. Carpeneti what is the punishment for second-degree murder. MS. CARPENETI replied a maximum of 99 years in jail. Number 0720 REPRESENTATIVE ROKEBERG noted the bill ups second-degree murder from a minimum of 5 years to a minimum of 20 years. It needs to be looked at further. It might be an unintended consequence. Number 0752 REPRESENTATIVE CROFT asked Ms. Carpeneti for more examples of criminally negligent conduct that might cause a death. He wondered whether drunk driving under certain conditions could be an example. MS. CARPENETI replied generally drunk driving involving a death is charged under manslaughter. Sometimes manslaughter is reduced to criminally negligent homicide if a link cannot be proved to manslaughter. There are other situations, not just vehicular homicides, but she didn't feel comfortable giving further examples before consulting with prosecutors. Number 0827 REPRESENTATIVE ROKEBERG stated a drunken driving offense is normally charged with manslaughter yet criminally negligent homicide is below manslaughter. Therefore, drunk driving is a higher level of criminally negligent homicide. He asked Ms. Carpeneti whether a charge more than manslaughter would be included in criminally negligent homicide. MS. CARPENETI replied yes because it involves a degree of negligence or recklessness. Recklessness is a higher degree... REPRESENTATIVE ROKEBERG interjected and asked Ms. Carpeneti whether there is an administrative term "greater included." MS. CARPENETI replied no. REPRESENTATIVE ROKEBERG stated he is not sure whether that is the case here in the bill. He asked Ms. Carpeneti whether there is anything that the committee should be aware of relating to this. MS. CARPENETI replied the term "greater included" is not used, but its concept is used because there are those that are lesser included. REPRESENTATIVE ROKEBERG said he doesn't want those instances that are now typically charged as manslaughter to become de facto second-degree murder because of the bill. He is not sure that is the intent of the sponsor either. MS. CARPENETI referred to Section 3(5) and noted the purpose is to punish those more seriously who have caused the death of children when in the past they have caused harm to children. Number 0979 REPRESENTATIVE ROKEBERG said, "I thought you said earlier that if we find there's been a custodial interference with taking out of state and a separate instance occurs (indisc.) criminal negligence involved or homicide under criminal negligence in combination that there could be a charge of second-degree murder vice-a-vie homicide, I mean, manslaughter." MS. CARPENETI replied if a person has been convicted of custodial interference and after a conviction has caused the death of a child through criminal negligence then that person could be charged with second-degree murder. REPRESENTATIVE ROKEBERG wondered whether a driving while intoxicated (DWI) homicide normally charged under manslaughter could be shifted to second-degree murder. He is not sure whether the legislature or the sponsor wants to do that. Number 1051 REPRESENTATIVE KERTTULA asked Representative Rokeberg whether he wants to leave it out. REPRESENTATIVE ROKEBERG replied no. He stated in this case several things are being combined to make a more severe penalty. He asked, Do we want to make those types of things second-degree murder with a 20 year presumptive minimum sentence? He said, "We ought to be darn sure what we're putting together here warrants that high minimum presumption." In other words, a conviction of vehicular homicide then a conviction of taking one's child out of state on a separate instance seems a little tough for 20 years. CHAIRMAN KOTT called on Ms. Lucky to comment on any of the issues discussed. Number 1147 MS. LUCKY reiterated the intent of Senator Halford is to use a higher penalty against those who have a past conviction of a crime against a child and cause the death of a child. She believes prosecutors will still have discretion in what they will charge someone with. Number 1180 REPRESENTATIVE ROKEBERG stated, if he was a noncustodial parent and took his child to Hawaii for a week and got busted, he would hate to think that he would turn into a second-degree murderer later on because of a different fact pattern. He is not certain that is the case, but he is very concerned about it. CHAIRMAN KOTT noted that Representative Rokeberg is right on track. Number 1210 MS. LUCKY offered to the committee members an index of the statutes under AS 11.41 in terms of specifying particular crimes... CHAIRMAN KOTT interjected and asked Ms. Lucky whether there has been any discussion to separate those crimes. MS. LUCKY replied it hasn't been a discussion until now, and she has not talked with Senator Halford about it. She reiterated she has a list of crimes under AS 11.41 if the committee wishes to fine-tune certain things. There are a lot of crimes listed that would merit a more detailed discussion than just a list of the statutes. CHAIRMAN KOTT asked Ms. Lucky to make that index available to the committee members. Number 1278 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what the presumptive minimum and maximum sentences are for class B and C felonies. MS. CARPENETI replied the maximum for a class B felony is (indisc.) and the maximum for a class C felony is five years. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what are the minimums. MS. CARPENETI replied class B and C felonies don't have presumptive terms for the first conviction. A presumptive term for a class C felony for a second conviction is two years. A presumptive term for a class B felony for a second conviction is four years. Number 1332 CHAIRMAN KOTT closed the meeting to public testimony. CHAIRMAN KOTT referred the bill to a subcommittee. He appointed Representative Rokeberg as chairman, and Representatives Green and Kerttula to the subcommittee and charged it with looking at these issues further in cooperation with the sponsor. The subcommittee is to report back to the full committee at the earliest time possible.
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