SB 218 - CRIMES OF MURDER & CHILD MURDERS SENATOR HALFORD, sponsor of SB 218, came forward to present the bill. He said his office had just received a committee substitute work draft that incorporated several changes into the bill. SENATOR MILLER moved the committee to adopt the work draft (version F dated 2/9/98) for discussion purposes. Without an objection, the work draft was adopted. SENATOR PARNELL asked if the sponsor could provide a synopsis of the original bill. SENATOR HALFORD stated that the original bill deals with the minimum treatment of crimes that result in the murder of a child. It also increases penalties for crimes less than murder against children. It imposes a 20-year minimum mandatory sentence for murder and a 10-year minimum mandatory sentence for manslaughter when the victim is less than 16 years old. He said this bill is consistent with the Administration's package of legislation on the same topic. CHAIRMAN TAYLOR asked how the bill dealt with negligent homicide of a child. He asked if the sentence was accelerated only in the case that a previous offense had occurred. He referred to section two of the bill. SENATOR HALFORD agreed that sentencing was accelerated when the perpetrator had been convicted of a previous crime involving a child under 16. MR. BLAIR MCCUNE, Alaska Public Defender, gave testimony from Anchorage via teleconference. He said his office had submitted an asterisk fiscal note on the bill because it was difficult to say what type of fiscal impact would be felt. He said the bill would increase the severity of some cases but not increase the overall case load. He spoke generally about murder in the first degree, saying traditionally malice aforethought or premeditation had to be proved but that standard had been lowered to intentional killing and he says section three of this bill goes a bit farther. He wanted the Legislature to be aware they were moving away from the traditional definition of first degree murder. He expressed concern that section one of the bill, a felony murder provision, and section two, sexual abuse of a minor, might already be covered in the traditional felony murder section and perhaps leave too much discretion for a prosecutor to charge someone under either subsection. He said this may result in an equal protection problem if the charging authority has too much discretion to choose between similar offenses. He said this was merely a technical thing that the committee might want to look at. MR. DEAN GUANELI, representing the Department of Law, came forward and said that this is a good bill. He said this bill fills holes in the current laws covering murder of children. He believes it is now a better bill as it goes further and also deals with manslaughter and criminally negligent homicide. He concluded that it was appropriate these things are covered under the same bill as the mental state involved in these crimes is very similar. He had some suggested changes and presented them to the committee. MR. GUANELI suggested some language be deleted from section one. He said the phrase "knowingly inflicts serious injury" might result in the situation where the person had to know they were inflicting serious physical injury rather than just commit a crime which results in serious physical injury. MR. GUANELI said it would be difficult to prosecute under that statute. He suggested the substitution of something like "knowingly engages in conduct directed toward a person under 16 . . . resulting in serious injury due to recklessness or negligence." He thinks this would be easier to prosecute. SENATOR PARNELL asked MR. GUANELI if he had specific language to propose and MR. GUANELI said he did. He said after the word knowingly on page 1 line 9, insert: "engages in conduct directed toward a child under 16, and the person recklessly or with criminal negligence inflicts . . . " He said this would apply only when a person is aware that their conduct is directed toward a child. SENATOR PARNELL asked what the law is now regarding reckless conduct. He asked if extreme indifference is the same thing as reckless and MR. GUANELI replied that extreme indifference is a higher mental state than recklessness, requiring more proof. He said if extreme indifference to human life could be proved that could be charged as second degree murder; if reckless conduct caused death that would be manslaughter. He added that this was not an easy thing to prove but with evidence of a prior history of assault, a case could be elevated to second degree murder. MR. GUANELI's second recommended change was in section 4 of the work draft on page 3. He said as the bill is currently, if the state can prove by clear and convincing evidence that it was a parent or guardian who committed the offense, or the crime was an assault, the minimum mandatory sentence would be twenty years as opposed to the present mandatory minimum of five years. However, on line 20 where it refers to clear and convincing evidence of neglect of a duty of care, MR. GUANELI thinks the important part of this is that the person is the parent or legal guardian of the child. He suggested taking out "neglect of a duty of care," and simply require that the state prove by clear and convincing evidence that the person is a legal guardian or a person occupying a position of authority. SENATOR PARNELL asked why the standard of evidence was "clear and convincing," rather than "reasonable doubt" and MR. GUANELI replied that it is a sentencing provision used to show aggravating factors during the sentencing phase. MR. GUANELI stated his last suggested change would be by striking the phrase "by an assault" in line 22 and inserting "by committing a crime against a person under AS 11.41", which covers a range of offenses. He believes this would also cover all the situations the sponsor wanted to include. SENATOR ELLIS asked if this bill was going to be moved today and CHAIRMAN TAYLOR said he would like to move it if the changes were minor. He added that the bill carried a fiscal note, requiring a finance hearing. MR. GUANELI conferred with the sponsor and suggested he give written changes to CHAIRMAN TAYLOR but CHAIRMAN TAYLOR preferred he read the changes into the record for clarity and out of consideration to the committee secretary. MR. GUANELI began with page 3, line 19, and suggested deletion of everything after the word "defendant" down through "to the child as" on line 21 and insertion of "(1) was" so it would read: "defendant (1) was a legal guardian or a person occupying a position of authority in relation to the child." Next, on line 22 after the Roman numeral II, MR. GUANELI suggested the committee strike the phrase "by an assault" and insert "caused the death of the child by committing a crime against a person under AS 11.41". This specific wording would accomplish the changes he previously described. CHAIRMAN TAYLOR moved the changes described above by MR. GUANELI as amendment #1. Without objection, these changes were adopted. MR. GUANELI said, as good as this bill is, it is important to know that child homicides are a small fraction of the crimes committed against children in the state. He said these are difficult cases to prevent but that the Governor's bill addresses the remainder of more preventable crimes against kids. He stated that early identification of at-risk children and quick action to care for them are appropriate provisions. He said the current system needs change in several areas and he hopes the committee will carefully consider the remainder of the Governor's bill. CHAIRMAN TAYLOR expressed his regret that he was unable to attend the Health, Education and Social Services Department audit by the Finance committee but was shocked to learn that the front-line position of social worker requires a high school diploma. He thinks these people are making very important decisions and he would hope to see them with more education and background and even experience raising their own family. He assured MR. GUANELI that the committee would look at this question further. SENATOR HALFORD agreed with MR. GUANELI and believed the committee needed to adopt MR. GUANELI'S first suggested change. CHAIRMAN TAYLOR clarified the first suggestion as, page 1 line 10, inserting the words (after knowingly): "...engages in conduct directed toward a child under the age of 16, and the person recklessly or with criminal negligence . . . " CHAIRMAN TAYLOR moved this as amendment #2 and, without objection, the amendment passed. CHAIRMAN TAYLOR asked if MR. MCCUNE'S concerns had been taken care of. MR. GUANELI said he did not believe so. He said one of the reasons it is appropriate to amend the second degree murder statutes to incorporate sexual abuse of a minor is due to a revision of the criminal code in 1980. When the code was revised, rape and sexual abuse of a minor were split apart and the felony murder statutes were not revised to cover both. He answered MR. MCCUNE'S question about prosecutorial discretion by saying there is a differentiation between sexual abuse of a minor in the first degree and second degree that could apply also to crimes against 16 or 17-year-old victims. He concluded that he was not terribly concerned with the prosecutorial discretion. MR. BLAIR MCCUNE responded that he agreed with MR. GUANELI's second suggestion responding to the recodification of the offense of sexual assault. He is, however, concerned that the legislature be careful in outlawing one type of conduct in two very similar offenses. SENATOR ELLIS mentioned that he appreciates CHAIRMAN TAYLOR's pledge to give close consideration to the Governor's bills. He said the Governor's bills are a comprehensive approach to the problem and the bill before them is an important piece in that puzzle. SENATOR MILLER moved CSSB 218(JUD) as amended from committee with individual recommendations. Without objection, the bill moved and with no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 2:15p.m.