CSHB 350(FIN)am-TERRORISTIC THREATS & OTHER CRIMES  REPRESENTATIVE LESIL MAGUIRE, sponsor of CSHB 350(FIN)am explained that this legislation is an omnibus homeland security bill. Alaska statutes address issues that relate to terrorism, but they do not take a comprehensive approach to provide tools for prosecutors. CSHB 350(FIN)am is an effort to provide those responsible for homeland security in Alaska the legal tools they need to discourage false threats and to punish actual attempts to practice terrorism in Alaska. Under CSHB 350(FIN)am, it will be a class A felony, punishable by up to 20 years in prison, to intentionally damage oil or gas pipelines or associated facilities. She noted that specific facilities have been identified and damage to them would cause widespread panic and chaos. In addition to oil and gas pipelines, the crime would apply to damage to water utilities, water mains, power, gas or electrical distribution systems, or elements of the emergency responder system. Any unsuccessful attempt to damage those systems or an attempt to damage airplanes or helicopters would be a class B felony. Finally, CSHB 350(FIN)am would raise terroristic threatening from a class C to a class B felony, and define the crime more clearly. The existing definition is ambiguous; CSHB 350(FIN)am narrows it so that it will not apply to a prankster. It also adds the act of making a false report of releasing harmful chemical, biological, or explosive agents into air, food or cosmetics. The current statute does not address air and water so they were added. SENATOR ELLIS asked for clarification of the reference to cosmetics. REPRESENTATIVE MAGUIRE explained that cosmetics and food are named in the existing statutes but water and air are not. SENATOR THERRIAULT referred to page 8, lines 29 and 30 of CSHB 350(FIN)am and asked why bacteriological, biological, chemical and radiological substances were separated out since they are inclusive of each other. REPRESENTATIVE MAGUIRE said she and Ms. Carpeneti labored over that question. Those substances were differentiated as the result of a compromise with some minority members on the House Finance Committee. Those members felt the original language (a toxic agent that could cause serious bodily harm) was too broad so the federal definition was used to narrow it. Those members were concerned that the original language could apply to a person who did not intend to do harm. CHAIRMAN TAYLOR took public testimony. MS. LINDA WILSON, Deputy Director of the Alaska Public Defender Agency, said that since September 11, the federal and state governments have felt the need to respond with appropriate legislation to address terroristic threats and tighten up loopholes to strengthen existing laws. The public defender's agency certainly supports those efforts but it does not support CSHB 350 (FIN)am for the following reasons. CSHB 350 (FIN)am creates a "disproportionality" within the criminal statutory scheme. Under Alaska's criminal code, crimes are classified according to the type of injury caused and the culpability of the defendant. Murder in the first degree is an unclassified felony offense. Murder in the second degree is also an unclassified felony that includes the crime of felony murder. Within that felony murder aspect, many crimes are listed. If, during the commission or the attempt to commit one of those underlying crimes, or in fleeing from that crime, a person dies, the person may be charged with second degree murder in addition to the underlying offense. CSHB 350 (FIN)am leapfrogs two underlying offenses - criminal mischief in the first degree and terroristic threatening in the first degree as offenses that would qualify under murder in the first degree for felony murder that would otherwise appropriately belong in murder in the second degree. The crimes delineated in the murder in the second degree felony murder include arson in the first degree, kidnapping, sexual assault in the first degree, sexual abuse of a minor in the first degree, burglary in the first degree, escape in the first degree, robbery in the first degree, and misconduct involving controlled substances in the first degree. Yet CSHB 350 (FIN)am pulls out two crimes that were not even included in murder in the second degree and elevates them to felony murder in the first degree. She stated it is more appropriate that these two crimes be included with all of the other serious crimes that are in murder in the second degree. MS. WILSON continued by informing members that class A felonies, which are below unclassified felonies, are reserved for crimes that involve conduct that actually results in serious physical injury or a substantial risk of serious physical injury. Some examples of crimes classified as class A felonies are arson in the first degree, assault in the first degree, a weapons misconduct offense in the first degree, and escape in the first degree. Class B felonies are for the more serious or aggravated property offenses and offenses against public administration or order and conduct that results in less severe violence against a person than would be in a class A felony. Some examples of class B felonies are burglary in the first degree, perjury, bribery and forgery. CSHB 350(FIN)am elevates criminal mischief in the first degree to a class A felony for damage to property in excess of $100,000. It also elevates, from a C to a B felony, tampering with an airplane in addition to tampering with an oil or gas pipeline or supporting facility. Increasing these four crimes creates "disproportionality." These four crimes should remain with the other sets of crimes more appropriately described as B and C felonies as they better fit the overall classification scheme. MS. WILSON said she is specifically concerned about the new offense created within terroristic threatening on page 8. Terroristic threatening right now is a class B felony. CSHB 350 (FIN)am divides terroristic threatening into two degrees and makes the more serious of the two, terroristic threatening in the first degree, a class B felony. This particular section of the bill was amended but the amendment did not make reference to the mental state for this crime. The original language required that the person intentionally placed a person in fear or caused serious public inconvenience or evacuation. The House Finance Committee amended that section so that a crime is committed if the result is that a person was placed in fear, etcetera. However, that amendment did not address the mental element of intent. She suggested including that mental element within the bill. CHAIRMAN TAYLOR moved to amend page 8, line 28, to insert the word "intentionally" after the word "person." He then asked Ms. Carpeneti to comment. MS. ANNE CARPENETI, representing the Criminal Division of the Department of Law, told members the reason the word "intentionally" was removed by House members was that it originally had been a specific intent crime to knowingly send anthrax-type materials with the intent to cause various results. The version under consideration by the House did not require the prosecution to prove that the perpetrator had, in fact, caused those results. The House considered that it wanted to have the result as the element the state needed to prove and made a change on page 9, by adding the results that were caused. Title 11 reads into those circumstances a reckless culpable mental state, meaning the person knew the risk and disregarded it. Therefore, a culpable mental state is included already. CHAIRMAN TAYLOR asked Ms. Carpeneti if she would object to including the word "knowingly." MS. CARPENETI said she did not. CHAIRMAN TAYLOR withdrew his amendment and moved to insert, on page 8, line 28, the word "knowingly" after the word "person." He stated that he felt Ms. Wilson's comments were well founded. There being no objection, CHAIRMAN TAYLOR's amendment was adopted. SENATOR THERRIAULT noted that Ms. Carpeneti had mentioned a provision in the Senate version that was more artfully crafted and asked her to direct him to it. MS. CARPENETI referred to page 9, line 26, and said the problem with changing it back to the Senate language at this time is that the entire section would have to be rewritten because of the way the lead-in reads. SENATOR COWDERY moved SCS CSHB 350(FIN) am from committee with its zero fiscal note. CHAIRMAN TAYLOR announced that without objection, SCS CSHB 350(FIN) am moved from committee.