Legislature(1997 - 1998)
02/21/1997 09:03 AM Senate HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 70 UNLAWFUL DISCHARGE OF A FIREARM
CHAIRMAN WILKEN introduced SB 70 as the next order of business.
SENATOR DONLEY, sponsor, said SB 70 addresses a gap in our current
criminal justice laws. Currently it is only a misdemeanor in
Alaska to discharge a firearm into a building, even if there's a
high possibility that someone is living in that building. SB 70
elevates that particular misuse of a firearm to a felony. Under
existing law a felony assault requires proving the person knew
someone was inside the structure.
The first section exempts peace officers from the scope of this
legislation. The second section restructures the unlawful
discharge of firearm laws. Senator Donley explained that the word
"building" and not just "dwelling" is necessary in order to cover
the circumstances of someone shooting into a store or a place where
people work. The real change appears on page 2, lines 1-4 that
makes unlawful discharge of a firearm in the second degree a Class
B felony.
Senator Donley acknowledged that when statutes are amended,
especially in criminal law, there are a lot of other impacts. He
tried to look at othere areas where it would be appropriate to
modify due to the existence of this new crime. One that seemed
appropriate to him was the most serious felony definition which is
the trigger for the "three strikes, you're out." It seems
appropriate that shooting a firearm into a building or dwelling
where someone may be should fall under a serious felony in the
first degree where there is risk to people.
Section 4 is a list of all the misdemeanors and felonies that
disqualify people from having a concealed weapon permit and he felt
shooting into a building that probably has people in it should be
on the list. Section 5 deals with juveniles and is the reason
SB 70 is in the HESS Committee. This section adds unlawful
discharge of a firearm in the first and second degree to the list
of felonies that create an automatic waiver situation for juveniles
over 16 years of age.
Senator Donley believed these are very serious crimes and seem to
parallel the existing provision of arson in the first degree which
has the imminent threat to safety of the people involved.
Section 6 is conforming also with the existing law.
Number 356
SENATOR WARD asked him to comment on the cost of the bill. SENATOR
DONLEY responded that due to the automatic waiver provisions in the
legislation, it is a frequent policy of the Department of
Corrections that any time the department see a juvenile waiver bill
they request new facility. The estimates for the actual number of
juveniles who would be waived is approximately two per year. These
are pretty bad kids and there are not a lot of them. Others who
would be waived under the Class B provision numbered about six, for
an impact of possibly eight additional juveniles per year. The
Department of Corrections is asking for a new 34 bed facility to
deal with that number. Senator Donley acknowledged the need for
additional beds in Alaska in both the juvenile system and the adult
correctional system; but he thought the issue of overcrowding
should be dealt with separately.
Number 324
CHAIRMAN WILKEN asked him to explain a possible automatic waiver.
SENATOR DONLEY explained that two or three years ago the
legislature adopted an automatic waiver for juveniles over the age
of 16 who commit unclassified or Class A felony crimes against a
person. It was decided that as a policy matter that these youth
should automatically be treated as adults, if the youth are charged
with those serious crimes. Included in that category is arson in
the first degree. This legislation includes in that category
unlawful discharge in the first degree which includes drive-by
shootings and unlawful discharge in the second degree which is
shooting in a building with a reckless disregard for the risk that
the building is occupied.
CHAIRMAN WILKEN asked who decides if the building is occupied.
SENATOR DONLEY stated that it is an automatic waiver if the person
is over 16 and is charged with these crimes. It becomes a
possibility that the youth would be waived to adult court if under
16 and the youth fail, by a preponderance of evidence, to indicate
that they are amenable for treatment by their age of majority.
MS. KNUTH, Department of Law, again appeared representing the
Governor's Childrens' Cabinet. An automatic waiver was one of the
tools that was discussed by them as a means of responding to
escalating juvenile crime. The Conference concluded that
increasing the automatic waiver offenses is inappropriate and a
dual sentencing option was recommended. In dual sentencing a
juvenile receives both the juvenile sentence disposition that the
judge believes is appropriate for that offense and simultaneously
receives an adult sentence for the offense. If the juvenile
complies with the terms of the juvenile sentence, that's all that
happens. If the juvenile commits a new felony offense or does not
comply with the terms and conditions of the juvenile sentence, then
the juvenile can be brought back before the court and have the
adult sentence imposed. Therefore instead of making a decision at
the outset of basically giving up on the kid, it sets up a
situation where the responsibility for what happens with the
juvenile is placed back with the juvenile.
Ms. Knuth said that Senator Donley's bill has two automatic waiver
offenses that are under consideration. One is the unlawful
discharge of a firearm in the first degree which is a Class A
felony and the other is the unlawful discharge in the second
degree. She thought it was a policy call within this body whether
unlawful discharge of a firearm in the first degree is so like
crimes against a person in arson that it is appropriate for it to
be on the automatic waiver list. What is of concern is unlawful
discharge of a firearm in the second degree because that is just a
Class B felony offense and there are no automatic waiver provisions
for any Class B felony offenses. That would be a new direction to
turn to in automatic waiver. She suggested that offense would be
more appropriate for the dual sentencing option in the Governor's
bill.
SENATOR DONLEY agreed with her analysis, but he had not been sold
on the dual sentencing concept. He thought an automatic waiver was
appropriate, even though it is listed as a Class B felony, because
it is such a serious crime to discharge a firearm towards a
building when there is a high probability of people being inside.
The distinction between the first and second degree is whether or
not you are in a vehicle when you shoot at that building. It seems
that the actual threat to people is the same between the two.
SENATOR LEMAN said one of the other options would be to make a
walk-by shooting equivalent to a drive-by shooting.
MS. KNUTH noted that currently first degree offenses are committed
under circumstances manifesting substantial and unjustifiable risk
of physical injury to a person which is a higher standard than we
now have in the second degree offense which is committed with
reckless disregard for the fact that the building is occupied. You
would lose some class of offenses if you were to elevate it to the
first degree. There would be some conduct that could not be
prosecuted and as a felony it would fall back down to the current
misdemeanor level.
SENATOR DONLEY said he thought it was up to the Committee to
decide. He tried to find other areas of the statute to make
consistent with this.
CAPTAIN TED BACHMAN , State Troopers, said he wanted to comment on
Section 2 which creates the new crime. He supported any tools
available to stop what seems to be an ever increasing incidence of
drive-by shootings in urban areas and other criminal uses of
firearms. His only reservation about this section is that all the
crimes that are created are presently covered by existing statute.
He thought it was much simpler to not create new crimes, but if
there are new provisions, to add those to existing misconduct
involving weapons crimes.
MR. MCCUNE, Public Defenders Office, favored a two-tier approach.
Whether it is appropriate to make unlawful discharge of a firearm
in the first or second degree is a policy decision. He asked the
committee to consider whether it was appropriate to make an
automatic waiver or whether it should be considered in conjunction
with the other legislation. Mr. McCune was concerned with how the
new Section 2 would fit into the existing assault statutes.
Assault in the third degree says if a person recklessly places
another person in fear of imminent serious physical injury by means
of a dangerous instrument, they are guilty of a Class C felony and
he was not sure how making it a Class B would fit in. He was also
concerned with the "three strikes" provision.
SENATOR DONLEY responded that assault in the third degree is
shooting in the direction of somebody. There has to be intent and
a victim. That is why he wants to raise shooting at a structure
when there is a probability that someone is in it to a felony.
SENATOR LEMAN moved to pass SB 70 from committee with individual
recommendations and with the accompanying fiscal notes. SENATOR
ELLIS asked if the committee was going along with the way the bill
was written in relation to the juvenile aspect of things. CHAIRMAN
WILKEN said he did not understand the trade-offs between first and
second degree and how they lose in prosecution. SENATOR LEMAN said
he thought that even though it is a Class B felony which is a new
category, it is serious enough to elevate it, in his mind, to the
automatic waiver level. He noted that he served on the conference
committee that dealt with the automatic waiver bill. He preferred
to see the bill stay the way it is.
SENATOR ELLIS asked Senator Donley to go through the burden of
proof that is placed on juveniles to prove if they are under the
age of 16 they are amenable to treatment. He thought this bill
deserved more discussion.
TAPE 97-17, SIDE A
Number 001
SENATOR DONLEY said in the past it was very difficult for the State
to prove that someone will not change. The problem worsened when
the courts determined a youth could not be forced to undergo any
kind of examination because that might violate the youth's fifth
amendment right against self incrimination. Now there are judges
who have to make decisions about which juveniles could rehabilitate
themselves by the time they are 18. Therefore the bill reversed
the presumption, putting it on the person who committed the
criminal act, only for the most serious ones, to show that the
youth can be rehabilitated before reaching the age of majority.
Because of that, it is in the juvenile's own self interest to get
a psychological examination, to talk to counselors, to talk to
potential advisors, to talk to the judge about how it is possible
to help the youth become rehabilitated.
That is what is meant on page 4 of the bill. If the juvenile is
under age 16 and commits an unclassified or Class A felony that is
a crime against a person, then, under existing law, the burden
switches to the juvenile who committed the crime. The state
provides a defense attorney and an expert witnesses. This
legislation includes in that list of where that presumption would
reverse unlawful use of a firearm in the first and second degree
which are the drive-by shootings and the shooting at building where
there is disregard for risk that it might be occupied.
CHAIRMAN WILKEN said he appreciated the clarification. He asked if
there were any objections to passing it out of committee. There
were none and it was so ordered.
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