HB 127 - 120 DAY JAIL: ASSAULT ON OFFICERS Number 600 BRUCE CAMPBELL, Administrative Assistant to Representative Pete Kelly, introduced CSHB 127, version F. Sponsor statement: "It is the intent of this bill to enhance a serious tool for police officers and others on the front line. It will increase severity of punishment for acts committed against a police officer while in the performance of official duties. "This bill sends a clear message to individuals that once the police arrive the fight must stop. Alaska is not sending in our `tag team blue' for the next round. Expanding the fracas to include a police officer will result in jail time. "This bill also discourages an officer from `engaging in a fair fight.' There is no reason for such a fight to continue, and this bill makes that quite clear. "Although initially intended as a tool for police, it has even more meaning when applied to individuals with even less training or expectation of dealing with persons physically. Volunteers responding to a medical emergency or fire are neither equipped nor trained to handle assault or violence directed against their persons." MR. CAMPBELL explained that the essence of the committee substitute is the same as the original bill, but they have expanded the language to include correctional nurses and parole/probation officers. This language is better than that in the original bill, which refers to peace officers and correctional officers. In working with the Department of Law, it was found that those terms did not actually address the issues they were considering. Number 690 FATE PUTMAN, Alaska State Employees Association (ASEA), stated that ASEA is the organization who requested these changes. They are in support of the bill and of the committee substitute, which would deter criminal behavior against members of their organization, particularly people who work in correctional institutions, such as nurses and probation officers. The state is concerned with their well-being, and believes there should be a punishment if they are assaulted. JERRY SHRINER, Special Assistant, Office of the Commissioner, Department of Corrections, noted that the previous two speakers had said most of what he wanted to say. The Department of Corrections does support this bill, particularly as modified to include correctional employees. He said people who may be prosecuted under this bill would more likely fall into the peace officer and emergency responder categories than in the correctional employees category. Nevertheless, he believes it is important in terms of employee morale to know that their employer is behind them in the performance of duties that can be dangerous and certainly stressful every day that they go to work. We want them to know that we are behind them. In most incidents occurring in institutions, there are a variety of ways in which these problems can be dealt with. They can take good time away or isolate individuals without charging the person with an offense. They probably will continue to do that inside institutions, so he does not expect that there will be a significant number of new cases. But again, we want our employees to know that we are behind them, and we are glad that they are specifically named in this. REPRESENTATIVE BUNDE felt that occurrences of this nature taking place inside a correctional facility should not necessarily affect the fiscal impact. REPRESENTATIVE TOOHEY asked if a contract employee would also fall into this protected category. MR. CAMPBELL said he did not know, but perhaps Margot Knuth would know. Number 745 CHAIRMAN PORTER stated that if a person were not covered as an employee, he/she would certainly still be covered as a private citizen. REPRESENTATIVE VEZEY asked what the maximum penalty is for assault in the fourth degree. ANNE CARPENETI, Committee Aide, House Judiciary Committee, explained that it would have the same penalty as for a class A misdemeanor, according to Mr. Luckhaupt, which is one year maximum in prison. REPRESENTATIVE VEZEY wondered what the need was to raise the minimum sentence from 30 days to 120. If someone was found guilty of a violent act, they could be given a year right now. MR. CAMPBELL said he would not pretend to be replacing something. The questions seem to be relatively legal in nature here. If somebody committed an act that was particularly egregious, then it would be subject to a higher level of penalty, and would be under either a felony assault or another higher penalty phase. That is why, in this amendment, we now have four pages, because we have added and corrected the phrase "correctional employee" in the assault statutes, so we are not dealing just with the fourth degree assault level that we were initially starting out with. Those also include the areas of specificity, those existing statutes for felonious assault, or whatever they are referred to in a legal phrase. Those have special sentencing sanctions and minimum sentencing for assaulting correctional officers, and this would expand the language to include correctional employees. REPRESENTATIVE VEZEY said that did not answer his question, because he was referring only to Section 5 where we are talking about assault in the fourth degree, which is already a class A misdemeanor. He was curious why they only wanted to raise the minimum sentence from 30 days to 120. He could visualize some situations of assault in the fourth degree which are not exactly life threatening. Would we really want to put somebody in jail for 120 days for assault in the fourth degree? Punching someone in the nose is an assault in the fourth degree. MR. CAMPBELL said these issues are a little out of his realm, but the initial discussion with the police officers they talked with, particularly Chief Gunn, is that in their experience, something like punching a police officer, in most jurisdictions, gave them an automatic felony sentence. It automatically jumped it from a misdemeanor into the felony category. We did not go that far. We simply raised the minimum time of sentencing from 30 to 120 days, rather than changing the issue from fourth degree assault to felonious assault, just because it was a police officer. Deputy Chief Gunn found this to be a particularly effective means of deterring and essentially bringing to a stop, fights. When the police arrived, the fight was over. You were not throwing in `tag team blue' to see who had the best wrestling match. Not all people, but many people understood that because there was a police officer arriving, to continue the issue and drag the police officer into a fight or carry on in that fashion, is a much more serious issue. REPRESENTATIVE VEZEY did not realize that what they were trying to address here was reluctant arrestees. That certainly is a problem, and people probably do not give consideration to what the penalties are when they get into fisticuffs with a police officer. We are talking about correctional employees, that is what the change is here. We are talking about the institutional employee. Do we really want to raise the minimum time in jail from 30 days to 120 days for fourth degree assault? That is not really a physical endangerment. It is just an assault. MR. SHRINER said that inside the institution, by expanding this to include correctional employees, that includes a significantly larger number of people than if we said correctional officers. Correctional officers, to some extent, while they certainly do not expect to be assaulted as part of their occupation, are trained to deal with a different level of behavior than, for example, a teacher, or mental health worker, or some other nurse who is one of our employees, those people would be more protected if higher consequences awaited the potential offender. Those workers within an institution have more narrowly defined roles in ability to arrest. They frequently make home visits in situations where they do not carry weapons, and where they are not always sure what the situation is going to be when they get there. This is not a frequent occurrence, but he believed it was worthwhile to the extent that this gives them some additional protection, and it is worth the effort to try it. REPRESENTATIVE BUNDE felt that someone guilty of punching an officer in the nose has committed a far more serious offense than someone who gets in a fender bender and punches a civilian in the nose. That is why officers wear uniforms. You know who is in charge. He would certainly endorse placing a serious consequence on people who want to be violent. REPRESENTATIVE FINKELSTEIN had concerns in a situation where someone goes and punches the police officer in the nose and is guilty of fourth degree assault, and is already subject to a year in jail. He would be interested to see what the sentencing pattern is. TAPE 95-31, SIDE B Number 000 REPRESENTATIVE FINKELSTEIN continued. He guessed the low end of this category is people who are drunk, and where the action was clearly not premeditated. Perhaps they are whaling on somebody else, the officer intervenes, and they get some degree of assault. Certainly, if they take a pounding and suffer some actual damages of assault, the penalty should be higher. If there is a weapon involved, it goes to higher levels. This is the very bottom level. Is there something out there in the world of these actions where a person hits the officer, and quickly realizes that, "Whoops! I'm in a new world now." Is there some place out there that ought to be the low end? The judge is going to have discretion to give anywhere between nothing and a year. Is there never going to be a situation where the person realizes quickly what they have done, and it does not cause any damage to the officer, does not do any damage at all, and quickly reverses himself, that it would be appropriate for something more on the order of 30 days? That was his question. REPRESENTATIVE BUNDE said he guessed they did not need to talk about prosecutorial discretion and jury trials, and that sort of thing. Many first time misdemeanants do not get any jail time at all. To jack it from a potential 30 days to 120 days is just a reflection of a step up in the violation of civil order, when you attack a police officer, whether intentional or unintentional. REPRESENTATIVE VEZEY felt we were wrestling with taking away the court system's ability to have some control over the population of our prisons. If we are going to deny them any flexibility in sentencing, and we do not have much flexibility on how we fund Corrections, that is what it comes down to. If we are only talking about a very small number of cases, but if we are going to mandate how long people stay in jail for every crime, regardless of the mitigating circumstances, we are just going to have to open up our wallets and build more prisons. CHAIRMAN PORTER did not disagree with the concerns that have been expressed, but from his obviously biased position, he felt assaults on peace officers and other first responders in emergency situations were serious offenses. It is not unusual for our statutory structure to require mandatory sentences for serious offenses. We have had that in place for some time. These kinds of things do not happen very often anymore, but they used to. This is either due to societal changes or is the result of this kind of legislation. In getting down to a fundamental level, when he started in law enforcement, if someone took a poke at a police officer, the police officer was entitled to take a poke back. He or she is not now. This kind of provision makes up for that imbalance. It is an infrequent event, and is, consequently, admittedly, more of a statement of recognition by us to these people that we appreciate the jeopardy they are placing themselves in on our behalf, and we will do what we can to support that effort. REPRESENTATIVE GREEN said it used to be in a tort situation that if `A' intended to do something to `B', but missed and hit `C', there was thing called "transfer of intent" and there was a question asked earlier about an officer stepping in between two fugitives. Does this imply that there could be that transfer of intent, or would it have to be an overt action? CHAIRMAN PORTER said to charge and convict under this statute, you would have to be able to establish intent to assault on a specific correctional officer. REPRESENTATIVE BUNDE said if there is something going on that causes a police officer to be assaulted, there is probably an accompanying crime; and one of the tools our judicial system uses is to place multiple charges on the defendant, which has impact on the sentence. He has known of a situation in which a police officer was assaulted, and he would have been very happy to see a compound sentence. Expanded and compounded sentences are justified for this type of conflict. REPRESENTATIVE FINKELSTEIN said he assumed that at the low end of fourth degree assaults involving an officer, most of these would involve alcohol. CHAIRMAN PORTER said most of the criminal offenses we deal with involve alcohol in some respect. REPRESENTATIVE FINKELSTEIN said though alcohol influence does not excuse anyone's actions, however, downtown bar brawls go on all the time. A person is not going to have in mind that they might get 120 days instead of 30 days. The influence of alcohol will prevent that incentive. It would not work at that level. It would not happen in a situation like that. There are plenty of cases where a person deserves a year, but there are also cases where 30 days would be appropriate. Societal interests are not being served by giving someone 120 days. When there is no other aggravating factors, 30 days is still a pretty serious sentence. CHAIRMAN PORTER concluded the public hearing. Number 125 REPRESENTATIVE BUNDE made a motion to move CSHB 127(JUD) out of committee with individual recommendations and attached fiscal notes. Seeing no objection, it was so ordered.