Legislature(1999 - 2000)

04/12/2000 01:55 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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