Legislature(1999 - 2000)
04/12/2000 01:55 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
SB 268 - MANDATORY 99-YEAR TERM OF IMPRISONMENT CHAIRMAN KOTT announced that the next order of business would be SENATE BILL NO. 268, "An Act relating to mandatory 99-year terms of imprisonment for persons convicted of certain murders." Number 0966 SENATOR DAVE DONLEY, Alaska State Legislature, came before the committee to testify as sponsor of SB 268. To the current statutory provisions for a 99-year sentence, he told members, the bill would add a new category for persons who actually commit a murder during a robbery. It would add a new standard to the three existing provisions of law that also require the mandatory 99-year sentence. They are as follows: 1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace office, fire fighter or correctional employee who was performing professional duties at the time of the murder; 2) the defendant has been previously convicted of a murder in the first degree; or 3) the court finds clear and convincing evidence that the defendant had subjected the victim to substantial physical torture. SENATOR DONLEY explained that there have been problems with murders during robberies in both Anchorage and Fairbanks over the last couple of years with taxi drivers and late-night restaurant workers. The bill was requested, therefore, by the Alaska Hospitality Association in hopes that it sends a message of deterrence. Number 1093 REPRESENTATIVE GREEN asked Senator Donley what the average sentence now is for these types of cases. SENATOR DONLEY replied that the typical sentence is 99 years. The mandatory minimum is 20 years; however, most judges are sentencing a defendant in these types of cases to 99 years. If for some reason a defendant had received a 20-year-sentence, the "good time" provisions would "kick in," and that defendant would be out in 14 years or so. However, in the case of the three existing categories mentioned earlier, the normal "good time" provisions do not apply; instead, a defendant convicted of murder in the first degree who is sentenced to 99 years receives a review after 50 years. Number 1200 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would apply if Fred and John "do something" and Fred "gets it." SENATOR DONLEY said the bill is not aimed at the felony murder class. If someone was present at a robbery but didn't actually pull the trigger, the new provision wouldn't apply; it would only apply to those who actually committed the murder. He noted that in at least 26 states individuals who commit a murder during a robbery are subject to the death penalty, as the maximum provision. Number 1252 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would apply to an individual who accidentally shoots someone. SENATOR DONLEY replied, "Yes." Number 1263 REPRESENTATIVE CROFT said he thinks that when an individual accidentally shoots someone, it is a felony murder. It isn't intentional murder; therefore, it must be a felony murder because of the intent to commit a robbery. SENATOR DONLEY replied that the classic example of felony murder is when, during a robbery, a gunfight ensues and a police officer kills a bystander. In that event, the criminal actors are guilty of felony murder, even though they did not shoot the bystander. That is an illustration of how expansive felony murder can be. The new provision, therefore, focuses on the individual who directly has caused the murder. Number 1316 REPRESENTATIVE CROFT stated that if a person intentionally kills another person, it is intentional first degree murder. If a person is robbing another person and accidentally kills that person, it is second degree felony murder. He asked Senator Donley which one the new provision refers to - murder in the first or second degree. He noted that the language [on page 2, lines 9-10, of the bill] reads, "the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery." SENATOR DONLEY replied that the new provision would require the normal elements of murder. He pointed out that the new provision is a little different in that the language reads, "and personally caused the death ...." [page 2, lines 8-9, of the bill]. Number 1390 REPRESENTATIVE CROFT said it appears that the new provision is a special category in addition to the other three provisions already in statute. SENATOR DONLEY specified that he wants to distinguish the new provision from felony murder. Number 1424 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would include second-degree murder. SENATOR DONLEY replied that a person would have to be convicted of a murder in which all of the elements of murder were present. REPRESENTATIVE GREEN suggested that it would have to be first-degree murder. SENATOR DONLEY paused, then replied, "Actually, I think you're right." He noted that subsection (a) [page 1, lines 5-8] limits the new provision to murder in the first degree. If that wasn't there, he would agree that it would apply to murder in the second degree. REPRESENTATIVE GREEN asked Senator Donley whether there is a chance that the new provision would be misinterpreted because the language just reads "murder." He said the other provisions read first- or second-degree murder. SENATOR DONLEY replied that he doesn't think so because the language "or" falls under subsection (a) [page 1, lines 5-8, of the bill], which confines the actions to murder in the first degree. REPRESENTATIVE GREEN pointed out that subparagraph (A) [page 1, lines 13-14] specifically indicates murder in the first degree. SENATOR DONLEY explained that the section is trying to define murder in the first degree. In that regard, a murder someone had committed in Oregon would have to have all the same elements of first-degree murder in Alaska to count towards a second murder offense. That is why the language is repeated in subparagraph (A) [page 1, starting on line 13]. Number 1571 CHAIRMAN KOTT asked Senator Donley when a robbery is considered concluded. He posed the following scenario: I go in with not the intent of killing someone with a weapon and ask the person for the cash register receipts. I get them. I turn around, and someone comes in behind me, and I shoot that person. I'm caught by surprise. They come through the door. Would that then apply to this particular situation, or ... is the robbery complete once the transaction occurs? SENATOR DONLEY replied that the new provision would be defined by a court the first time it is used. The intent, he reiterated, is to act as a deterrent to protect the public. He further stated that not all murders are the same because some have an inherently greater public safety risk. For example, if a person goes into a public restaurant with a lot of people milling around and commits a robbery, there is an inherently greater public safety risk; it is not just the robber and one other person. He thinks that the entrance and escape are part of the continuance of the commission of a robbery. But, as he studied in law school, there is a question in relation to a certain amount of time that has elapsed after the commission of a robbery. He cited two hours as an example. In that case, a judge would have to make a finding on whether or not the law applies. Number 1694 REPRESENTATIVE KERTTULA said she thinks that the language isn't clear in relation to the defendant's being both the murderer and the robber. The language reads, "the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery" [page 2, lines 9-10]. It doesn't say that a person is convicted of a robbery. She pointed out that subparagraph (C) [page 2, lines 3-6] specifically indicates that a defendant has been previously convicted of homicide. Therefore, the new provision could apply to a person who walks in while a robbery is being committed and kills someone, but that person is not convicted of the robbery. REPRESENTATIVE JAMES noted that the language reads, "other than a participant" [page 2, line 10]. She asked whether the language refers to the person who was murdered or to the person who committed the murder. SENATOR DONLEY stated that he doesn't have a problem changing the language so that it says a person has been convicted of a robbery as well. REPRESENTATIVE KERTTULA commented that otherwise there is a risk of it "going the other way." SENATOR DONLEY said he really doubts that prosecutors would "go after that," but he doesn't have a problem with clarifying the language because that is not the intent. Number 1760 REPRESENTATIVE KERTTULA suggested the following language: "... during a robbery of which the defendant was convicted." REPRESENTATIVE CROFT commented that there are cases in the news of police officers who are up for murder charges for the possible use of excessive force. Therefore, if the language remains as-is, a police officer who responds to a robbery, shoots negligently, and kills a bystander could face a 99-year sentence. SENATOR DONLEY restated that the change is fine. He doesn't think, however, that those examples meet the elements of murder in the first degree. Number 1810 REPRESENTATIVE MURKOWSKI asked Senator Donley to assure her that the new provision is not limited to a death that only occurs during the robbery. The language reads "during a robbery" [page 2, line 10]. In other words, a person could die after a robbery. SENATOR DONLEY said that is not his intent. REPRESENTATIVE MURKOWSKI recognized that, but said she hopes that the language can be fixed to make it clearer. SENATOR DONLEY agreed with fixing the language to make it clearer. He suggested the following language: "... and personally caused the death of a person other than by some action during a robbery." He explained that in that way, it is the action that occurred during a robbery and not the death. He suggested perhaps the bill drafter could come up with a better phrase. Number 1900 REPRESENTATIVE KERTTULA asked Senator Donley whether sexual assault is included in the definition of substantial physical torture. SENATOR DONLEY replied that he has heard about two cases in relation to substantial physical torture; one included sexual assault as well as other [unspecified] acts. Number 1925 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed the meeting to public testimony. Number 1955 REPRESENTATIVE KERTTULA proposed a conceptual amendment [Amendment 1] to make it clear that the cause of death happened at the time of the robbery, and that a person has to have been convicted of the robbery. There being no objection, Amendment 1 was adopted. Number 2017 REPRESENTATIVE GREEN made a motion to move SB 268, as amended, from the committee with individual recommendations and the attached zero fiscal note. There being no objection, HCS SB 268(JUD) was moved from the House Judiciary Standing Committee.
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