Legislature(1995 - 1996)
01/19/1996 01:30 PM Senate 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 194 GANG RELATED CRIMES
SHERMAN ERNOUF, legislative aide to Senator Kelly, sponsor of SB
194, stated that SB 194 was introduced in response to a rapid
increase of gang violence in the Anchorage area. In 1995, there
were more than four gang-related murders committed in the Anchorage
area, dozens of drive-by shootings, and over 400 gang members have
been identified by police officers. SB 194 was drafted to give law
enforcers the tools needed to deal more effectively with the gang
problem. During the drafting process, other states' codes were
reviewed, specifically a California statute that was enacted as
emergency legislation to deal with an epidemic problem of gang
violence.
MR. ERNOUF gave the following synopsis of SB 194. Section 1 (a)(4)
amends the crime of murder in the second degree and sets the
minimum sentence to seven years with a 99 year maximum for felony
murder. This would extend a felony murder charge to a situation
where an innocent bystander is killed as the result of a gang war.
This provision would eliminate a claim of self-defense and would
hold gang members more accountable for their violent acts. A
second change would give police the authority to arrest and hold,
for class A misdemeanors, all members of a gang involved in a
drive-by shooting, until the person who fired the gun is
identified. Currently the police may know a shot has been fired,
and find a gun in the automobile, but cannot make an arrest when
they cannot identify which passenger fired the gun.
MR. ERNOUF continued. SB 194 elevates the crime of a drive-by
shooting from a class C felony, 0-5, to a class B felony, 5-10, in
Section 2. The definition of a "criminal street gang" is contained
in Section 6, and is inclusive for gang members, but excludes
groups that might fall under a similar definition, such as the boy
scouts. The crime of participating in a criminal street gang, also
in Section 6, is modelled after the California Penal Code, and is
punishable as a class C felony. That provision also provides for
forfeiture of gang property, including personal property and
automobiles. Section 8 allows for expert testimony regarding gang
membership.
Number 225
SENATOR ADAMS asked for clarification of Section 6, and noted
concern that the definition includes style of dress as an
identifying marker of a gang member. MR. ERNOUF explained that a
gang member must also have acted, individually or jointly, in the
preceding three years, to commit a felony, under Section 6(B). He
added that provision was purposely included to avoid arresting a
member of any group and is modelled after the California statute.
SENATOR ADAMS asked if a person, considered a gang member at one
time, or convicted as such, would be categorized a gang member for
the rest of his/her life under this legislation. MR. ERNOUF
replied that Section 6(B) provides for a limit to behavior in the
previous three years.
Number 250
SENATOR ADAMS asked whether SB 194 would coordinate with the
juvenile justice system, since many gang members would be
juveniles. MR. ERNOUF replied SB 194 is tailored toward gang
activity, whether the activity be committed by juveniles or adults.
SENATOR TAYLOR asked if SB 194 became law, and an offense did
occur, whether the offender would be treated as he/she is
currently: a juvenile would be treated as such. MR. ERNOUF
believed that would be the case.
Number 281
ANNE CARPENETI, representing the Department of Law, stated although
the gang problem in Alaska needs to be addressed, according to
Alaska State Troopers and members of the Anchorage Police
Department, SB 194 will not help law enforcement officials to do
so.
LT. DENNIS CASANOVAS, Alaska State Troopers, gave the following
testimony via teleconference. SB 194 is a valiant attempt to
provide Alaska law enforcement agencies and prosecutors with a tool
to combat violent crime. When crimes are committed in concert
with, or by, criminal street gangs, the Department of Public Safety
(DPS) is in support of efforts to reduce violent criminal acts, but
SB 194 might be too cumbersome to be effectively enforced. To
interpret, enforce and prosecute this proposed legislation, a
complete understanding of the definition of "criminal street gangs"
and the pattern of criminal gang activity, as proposed, in AS
11.61.300 and AS 11.81.900, must be accomplished.
LT. CASANOVAS continued. Several interpretations of the
definitions can be made. For law enforcement officials faced with
emergency response and first-line intervention to incidents of
violent crimes on the streets, the ability to immediately identify
and to have probable cause to detain or arrest those involved
participants is an issue that is too complicated to be practical.
In a drive-by shooting situation, if law enforcement officials were
able to identify a suspect vehicle 15 minutes after it occured, the
participants could have many defenses or excuses for their behavior
which would not fit the description of gang activity under the
definition set out in SB 194. Use of the existing language to
prove the elements for such involvement may end up being too time
consuming and subjective than what was intended. Criminal justice
agencies may end up spending an inordinate amount of time
investigating and litigating whether a suspect is a criminal gang
member rather than spending efforts on the successful investigation
and prosecution of violent criminal acts.
LT. CASANOVAS relayed Dep. Commissioner Smith's agreement that the
bill, in its present form, may create more complications, than
provide solutions. The DPS is very interested in working with the
sponsor to develop language to pursue the concept in SB 194 which
allows law enforcement officers the ability to arrest, without a
warrant, certain criminal suspects up to eight hours after a
specified offense.
Number 350
SENATOR TAYLOR asked Lt. Casanovas if DPS specifically supports the
eight hour provision contained in SB 194. LT. CASANOVAS replied
DPS supports the concept, but the definition of a street gang
member would have to be clarified before the eight hour provision
could be invoked.
SENATOR TAYLOR discussed the impossibility of an officer knowing
whether a passenger in a suspect vehicle had been involved in gang
related activity in the past three years.
Number 365
SENATOR ADAMS asked Lt. Casanovas to submit recommendations to the
committee for definitional changes to be included in SB 194.
MS. CARPENETI highlighted problematic sections of SB 194. In
Section 1(a)(3) police officers are interested in adding a drug
offense to the list of offenses. In Section 2(a)(3), substantive
elements have been added to the offense that the state would have
to prove in order to get a conviction. The language, "participates
as a member of a criminal street gang and, acting for the benefit
of, at the direction of, or in association with a criminal street
gang or any of its members,..." is unnecessary since the intent is
to criminalize the conduct of knowingly discharging a firearm from
a propelled vehicle. By deleting the first two lines of subsection
(3) there would be fewer elements to prove beyond a reasonable
doubt in court, and the result would be the same. She also
suggested changing the word "reckless" in the same section to be
uniform with other sections.
MS. CARPENETI continued. Pages 3 and 4 are conforming language to
pages 1 and 2. Section 4(a)(9) is written in such a manner that it
creates defenses of duress and necessity since a passenger might
not be able to jump out of the car after the shooting has occurred.
Section 5(a)(1) contains elements that would be hard to prove.
Section 5(a)(2) would require a prosecutor to prove what is
necessary to prove accomplice liability (intent and an act to help
commit the crime) in addition to what is required by subsection (1)
with the result being a class C felony. The current charge under
an accomplice theory of liability for a robbery is a class A
felony. Therefore Section 5 makes the charge harder to prove and
results in a lesser offense. MS. CARPENETI added the forfeiture
section does not add to AS 12.55.015, which requires forfeiture of
deadly weapons under authorized sentences. Regarding forfeiture of
property, the language in SB 194 would require the prosecutor to
prove: the property was owned or managed by the leader of a street
gang; the property was a proceed or derived from street gang
activity; and that it was used in street gang activity on the basis
of the offender's conviction. She stated proof of all three would
be difficult to obtain.
MS. CARPENETI addressed Senator Adams' question regarding the court
rule change in SB 194. This change would allow expert testimony
under circumstances in which it might not normally be allowed
because a lot of the evidence would be propensity evidence.
Number 444
SENATOR TAYLOR noted the committee's primary concern is whether SB
194 will meet constitutional muster. MS. CARPENETI agreed to
provide the committee with more information.
SENATOR TAYLOR suggested the committee defer further action on SB
194 until a committee substitute or amendments are brought forward
that simplify the legislation and make it enforceable by both law
enforcement officials and the judicial system.
SENATOR TAYLOR adjourned the meeting at 2:00 p.m.
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