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.