SB 186-SENTENCING/PROBATION/MENTALLY ILL  2:06:55 PM CHAIR FRENCH announced the consideration of SB 186. He noted that an amendment from Senator Coghill was discussed during the last hearing but no formal action was taken. At ease from 2:07:31 p.m. to 2:07:54 p.m. CHAIR FRENCH asked Senator Coghill to move the amendment and said he would object for discussion purposes. 2:08:07 PM SENATOR COGHILL moved Amendment 1, labeled 27-LS0811\I.1. CHAIR FRENCH objected. AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR COGHILL TO: SB 186 Page 1, line 1, following "Act": Insert "relating to property crimes;" Page 1, following line 6: Insert new bill sections to read: "* Section 1. AS 11.46.130(a) is amended to read: (a) A person commits the crime of theft in the second degree if the person commits theft as defined in AS 11.46.100 and (1) the value of the property or services is $1,500 [$500] or more but less than $25,000; (2) the property is a firearm or explosive; (3) the property is taken from the person of another; (4) the property is taken from a vessel and is vessel safety or survival equipment; (5) the property is taken from an aircraft and the property is aircraft safety or survival equipment; (6) the value of the property is $250 [$50] or more but less than $1,500 [$500] and, within the preceding five years, the person has been convicted and sentenced on two or more separate occasions in this or another jurisdiction of (A) an offense under AS 11.46.120, or an offense under another law or ordinance with similar elements; (B) a crime set out in this subsection or an offense under another law or ordinance with similar elements; (C) an offense under AS 11.46.140(a)(1), or an offense under another law or ordinance with similar elements; or (D) an offense under AS 11.46.220(c)(1) or (c)(2)(A), or an offense under another law or ordinance with similar elements; or (7) the property is an access device.  * Sec. 2. AS 11.46.140(a) is amended to read: (a) A person commits the crime of theft in the third degree if the person commits theft as defined in AS 11.46.100 and (1) the value of the property or services is $250 [$50] or more but less than $1,500 [$500]; or  (2) [REPEALED (3)] the value of the property is less than $250 [$50] and, within the past five years, the person has been convicted and sentenced on two or more separate occasions in this or another jurisdiction of theft or concealment of merchandise, or an offense under another law or ordinance with similar elements.  * Sec. 3. AS 11.46.150(a) is amended to read: (a) A person commits the crime of theft in the fourth degree if the person commits theft as defined in AS 11.46.100 and the value of the property or services is less than $250 [$50].  * Sec. 4. AS 11.46.220(c) is amended to read: (c) Concealment of merchandise is (1) a class C felony if (A) the merchandise is a firearm; (B) the value of the merchandise is $1,500 [$500] or more; or (C) the value of the merchandise is $250 [$50] or more but less than $1,500 [$500] and, within the preceding five years, the person has been convicted and sentenced on two or more separate occasions in this or another jurisdiction of (i) the offense of concealment of merchandise under this paragraph or (2)(A) of this subsection, or an offense under another law or ordinance with similar elements; or (ii) an offense under AS 11.46.120, 11.46.130, or 11.46.140(a)(1), or an offense under another law or ordinance with similar elements; (2) a class A misdemeanor if (A) the value of the merchandise is $250 [$50] or more but less than $1,500 [$500]; or (B) the value of the merchandise is less than $250 [$50] and, within the preceding five years, the person has been convicted and sentenced on two or more separate occasions of the offense of concealment of merchandise or theft in any degree, or an offense under another law or ordinance with similar elements; (3) a class B misdemeanor if the value of the merchandise is less than $250 [$50].  * Sec. 5. AS 11.46.260(b) is amended to read: (b) Removal of identification marks is (1) a class C felony if the value of the property on which the serial number or identification mark appeared is $1,500 [$500] or more; (2) a class A misdemeanor if the value of the property on which the serial number or identification mark appeared is $250 [$50] or more but less than $1,500 [$500]; (3) a class B misdemeanor if the value of the property on which the serial number or identification mark appeared is less than $250 [$50].  * Sec. 6. AS 11.46.270(b) is amended to read: (b) Unlawful possession is (1) a class C felony if the value of the property on which the serial number or identification mark appeared is $1,500 [$500] or more; (2) a class A misdemeanor if the value of the property on which the serial number or identification mark appeared is $250 [$50] or more but less than $1,500 [$500]; (3) a class B misdemeanor if the value of the property on which the serial number or identification mark appeared is less than $250 [$50].  * Sec. 7. AS 11.46.280(d) is amended to read: (d) Issuing a bad check is (1) a class B felony if the face amount of the check is $25,000 or more; (2) a class C felony if the face amount of the check is $1,500 [$500] or more but less than $25,000; (3) a class A misdemeanor if the face amount of the check is $250 [$50] or more but less than $1,500 [$500]; (4) a class B misdemeanor if the face amount of the check is less than $250 [$50].  * Sec. 8. AS 11.46.285(b) is amended to read: (b) Fraudulent use of an access device is (1) a class B felony if the value of the property or services obtained is $25,000 or more; (2) a class C felony if the value of the property or services obtained is $1,500 [$50] or more but less than $25,000; (3) a class A misdemeanor if the value of the property or services obtained is less than $1,500 [$50].  * Sec. 9. AS 11.46.295 is amended to read: Sec. 11.46.295. Prior convictions. For purposes of considering prior convictions in prosecuting a crime of theft under AS 11.46.130(a)(6) or 11.46.140(a)(2) [11.46.140(a)(3)], or in prosecuting the crime of concealment of merchandise under AS 11.46.220(c), a conviction for an offense under another law or ordinance with similar elements is a conviction of an offense having elements similar to those of an offense defined as such under Alaska law at the time the offense was committed. The court shall consider the date of a prior conviction as occurring on the date that sentence is imposed for the prior offense.  * Sec. 10. AS 11.46.360(a) is amended to read: (a) A person commits the crime of vehicle theft in the first degree if, having no right to do so or any reasonable ground to believe the person has such a right, the person drives, tows away, or takes (1) the car, truck, motorcycle, motor home, bus, aircraft, or watercraft of another; (2) the propelled vehicle of another and (A) the vehicle or any other property of another is damaged in a total amount of $1,500 [$500] or more; (B) the owner incurs reasonable expenses as a result of the loss of use of the vehicle, in a total amount of $1,500 [$500] or more; or (C) the owner is deprived of the use of the vehicle for seven days or more; (3) the propelled vehicle of another and the vehicle is marked as a police or emergency vehicle; or (4) the propelled vehicle of another and, within the preceding seven years, the person was convicted under (A) this section or AS 11.46.365; (B) former AS 11.46.482(a)(4) or (5); (C) former AS 11.46.484(a)(2); (D) AS 11.46.120 - 11.46.140 of an offense involving the theft of a propelled vehicle; or (E) a law or ordinance of this or another jurisdiction with elements substantially similar to those of an offense described in (A) - (D) of this paragraph.  * Sec. 11. AS 11.46.482(a) is amended to read: (a) A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right, (1) with intent to damage property of another, the person damages property of another in an amount of $1,500 [$500] or more; (2) the person recklessly creates a risk of damage in an amount exceeding $100,000 to property of another by the use of widely dangerous means; or (3) the person knowingly (A) defaces, damages, or desecrates a cemetery or the contents of a cemetery or a tomb, grave, or memorial regardless of whether the tomb, grave, or memorial is in a cemetery or whether the cemetery, tomb, grave, or memorial appears to be abandoned, lost, or neglected; (B) removes human remains or associated burial artifacts from a cemetery, tomb, grave, or memorial regardless of whether the cemetery, tomb, grave, or memorial appears to be abandoned, lost, or neglected.  * Sec. 12. AS 11.46.484(a) is amended to read: (a) A person commits the crime of criminal mischief in the fourth degree if, having no right to do so or any reasonable ground to believe the person has such a right (1) with intent to damage property of another, the person damages property of another in an amount of $250 [$50] or more but less than $1,500 [$500]; (2) the person tampers with a fire protection device in a building that is a public place; (3) the person knowingly accesses a computer, computer system, computer program, computer network, or part of a computer system or network; (4) the person uses a device to descramble an electronic signal that has been scrambled to prevent unauthorized receipt or viewing of the signal unless the device is used only to descramble signals received directly from a satellite or unless the person owned the device before September 18, 1984; or (5) the person knowingly removes, relocates, defaces, alters, obscures, shoots at, destroys, or otherwise tampers with an official traffic control device or damages the work upon a highway under construction.  * Sec. 13. AS 11.46.486(a) is amended to read: (a) A person commits the crime of criminal mischief in the fifth degree if, having no right to do so or any reasonable ground to believe the person has such a right, (1) with reckless disregard for the risk of harm to or loss of the property or with intent to cause substantial inconvenience to another, the person tampers with property of another; (2) with intent to damage property of another, the person damages property of another in an amount less than $250 [$50]; or (3) the person rides in a propelled vehicle knowing it has been stolen or that it is being used in violation of AS 11.46.360 or 11.46.365(a)(1).  * Sec. 14. AS 11.46.530(b) is amended to read: (b) Criminal simulation is (1) a class C felony if the value of what the object purports to represent is $1,500 [$500] or more; (2) a class A misdemeanor if the value of what the object purports to represent is $250 [$50] or more but less than $1,500 [$500]; (3) a class B misdemeanor if the value of what the object purports to represent is less than $250 [$50].  * Sec. 15. AS 11.46.620(d) is amended to read: (d) Misapplication of property is (1) a class C felony if the value of the property misapplied is $1,500 [$500] or more; (2) a class A misdemeanor if the value of the property misapplied is less than $1,500 [$500].  * Sec. 16. AS 11.46.730(c) is amended to read: (c) Defrauding creditors is a class A misdemeanor unless that secured party, judgment creditor, or creditor incurs a pecuniary loss of $1,500 [$500] or more as a result to the defendant's conduct, in which case defrauding secured creditors is (1) a class B felony if the loss is $25,000 or more; (2) a class C felony if the loss is $1,500 [$500] or more but less than $25,000." Page 1, line 7: Delete "Section 1" Insert "Sec. 17" Renumber the following bill sections accordingly. Page 5, line 23: Delete "sec. 8" Insert "sec. 24" Page 5, line 24: Delete "sec. 9" Insert "sec. 25" Page 5, line 29: Delete "sec. 1" Insert "sec. 17" Page 5, line 30: Delete "sec. 2" Insert "sec. 18" Delete "sec. 3" Insert "sec. 19" Page 5, line 31: Delete "sec. 4" Insert "sec. 20" Page 6, line 1: Delete "sec. 7" Insert "sec. 23" Page 6, line 3, following "(b)": Insert "AS 11.46.130(a), as amended by sec. 1 of this Act, AS 11.46.140(a), as amended by sec. 2 of this Act, AS 11.46.150(a), as amended by sec. 3 of this Act, AS 11.46.220(c), as amended by sec. 4 of this Act, AS 11.46.260(b), as amended by sec. 5 of this Act, AS 11.46.270(b), as amended by sec. 6 of this Act, AS 11.46.280(d), as amended by sec. 7 of this Act, AS 11.46.285(b), as amended by sec. 8 of this Act, AS 11.46.295, as amended by sec. 9 of this Act, AS 11.46.360(a), as amended by sec. 10 of this Act, AS 11.46.482(a), as amended by sec. 11 of this Act, AS 11.46.484(a), as amended by sec. 12 of this Act, AS 11.46.486(a), as amended by sec. 13 of this Act, AS 11.46.530(b), as amended by sec. 14 of this Act, AS 11.46.620(d), as amended by sec. 15 of this Act, AS 11.46.730(c), as amended by sec. 16 of this Act, and" Page 6, line 3: Delete "sec. 6" Insert "sec. 22" Delete "applies" Insert "apply" Page 6, line 5: Delete "sec. 8" Insert "sec. 24" Page 6, line 10: Delete "Sections 8 and 9" Insert "Sections 24 and 25" Delete "sec. 12" Insert "sec. 28" SENATOR COGHILL explained that the purpose of the amendment was to raise the threshold amounts for property offenses. It addresses theft and its related offenses and it deals with all the associated misdemeanors and felonies. These property crimes have a value threshold that distinguishes first, second, third and fourth degree offenses that are a class C felony or an A or B misdemeanor. The amendment adjusts the value thresholds across the statutes from $500 to $1,500 and $50 to $250. He directed attention to a chart of felony thresholds for property theft in the western U.S. that shows that Alaska is the lowest at $500, whereas Montana and Utah have the highest thresholds at $1,500. The proposed amendment would bring Alaska more in alignment with those states. SENATOR COGHILL noted a court system document that shows the numbers of property crime cases filed under AS 11.46 during FY11. There were 911 cases of theft where the property was valued at more than $500; 807 cases of theft where the property was valued at $50-$499; 404 cases of theft where the property was valued under $50; 171 cases of fraud where the property was valued at $50-$24,999; and 738 cases of criminal mischief and property damage where the property was valued at $50-$499. 2:12:54 PM SENATOR COGHILL said he understands that the lower threshold is used as a hammer to get misdemeanor pleas, but he doesn't believe it's equitable to make someone a felon because they stole a $700 bike or broke a $1,000 window. SENATOR WIELECHOWSKI commented that someone recently mentioned that the laws create disparate treatment between urban and rural areas. A window that's valued at $200 in Anchorage may be valued at three or four times that in a rural village. Depending on location, breaking that window can be a misdemeanor or a felony. He noted that 3,794 property crime cases were filed in FY11 and asked how many total crimes there were. CHAIR FRENCH asked Doug Moody and Leslie Houston if they had that information. 2:15:03 PM LESLIE HOUSTON, Director, Division of Administrative Services, Department of Corrections (DOC), introduced herself and offered to follow up. CHAIR FRENCH said his inclination was to adopt the amendment and, if necessary, adjust it at a future hearing. He thanked Senator Coghill for bringing the amendment forward, and highlighted that in the last 20 years Alaska's prison population has shifted from mostly violent offenders to mostly nonviolent offenders. To change that will require some policy changes, he said. SENATOR COGHILL clarified the intent of the amendment was not to lighten up on crime, but to more appropriately match the penalty to the crime. CHAIR FRENCH confirmed that no one was saying that offenders would not be held accountable. SENATOR WIELECHOWSKI asked to hear the administration's position on the amendment. 2:19:03 PM ANNE CARPENETI, Assistant Attorney General representing the Criminal Division, Department of Law (DOL), stated that DOL did not have a position on the amendment, but had no objection. The rationale is understandable, but it does put the department in an awkward position because it is charging and prosecuting people under the current law. SENATOR WIELECHOWSKI asked if the administration believes that this is good policy. MS. CARPENETI replied she was not aware if anyone above her had considered the amendment or taken a position on it. CHAIR FRENCH asked Senator Coghill if he'd reviewed the amendment with police chiefs. SENATOR COGHILL replied he did in years past and they're understandably not big fans. He added that he did not ask the administration for an endorsement, and he's aware of the difficulty associated with shifting a threshold when DOL is charging and prosecuting under the current law. CHAIR FRENCH stated that the amendment is before the committee and there's an objection. At ease from 2:21:40 p.m. to 2:22:03 p.m. CHAIR FRENCH reconvened the hearing and stated that he wanted to hear from police chiefs and Senator Coghill mentioned talking to members of the other body. He asked Senator Wielechowski if he had ideas about the amendment. SENATOR WIELECHOWSKI expressed a desire to hear from law enforcement and the administration about whether this is good policy. MS. CARPENETI offered to try to get an answer. SENATOR COGHILL said he believes this is a good policy call but he too would like to hear from all sides. SENATOR COGHILL withdrew Amendment 1 with the understanding that he would bring it back for further debate at a future meeting. 2:24:11 PM CHAIR FRENCH moved Amendment 2, labeled 27-LS0811\I.2, and objected for discussion purposes. AMENDMENT 2 OFFERED IN THE SENATE BY SENATOR FRENCH TO: SB 186 Page 1, line 1, following "Act": Insert "relating to assault causing serious  bodily injury to a child; relating to a definition of  "serious bodily injury to a child";" Page 1, following line 6: Insert new bill sections to read:  "* Section 1. AS 11.41.200(a) is amended to read: (a) A person commits the crime of assault in the first degree if (1) that person recklessly causes serious physical injury to another by means of a dangerous instrument; (2) with intent to cause serious physical injury to another, the person causes serious physical injury to any person; (3) the person knowingly engages in conduct that results in serious physical injury to another under circumstances manifesting extreme indifference to the value of human life; or (4) that person recklessly causes serious physical injury to another by repeated assaults using a dangerous instrument, even if each assault individually does not cause serious physical injury;  (5) while being 18 years of age or older,  that person  (A) intentionally causes serious bodily  injury to a child under 12 years of age or to a child  under 16 years of age who is mentally or physically  impaired; or  (B) recklessly causes serious bodily injury  on one or more than one occasion to a child under 12  years of age or to a child under 16 years of age who  is mentally or physically impaired.  * Sec. 2. AS 11.81.900(b) is amended by adding a new paragraph to read: (65) "serious bodily injury to a child" includes second or third degree burns, a fracture of any bone, a concussion, strangulation, injuries to the skin that involve severe bruising or the likelihood of permanent or protracted disfigurement, including those sustained by striking children with objects, or other physical injury that results in significant physical injury to the child." Page 1, line 7: Delete "Section 1" Insert "Sec. 3" Renumber the following bill sections accordingly. Page 5, line 23: Delete "sec. 8" Insert "sec. 10" Page 5, line 24: Delete "sec. 9" Insert "sec. 11" Page 5, line 29: Delete "sec. 1" Insert "sec. 3" Page 5, line 30: Delete "sec. 2" Insert "sec. 4" Delete "sec. 3" Insert "sec. 5" Page 5, line 31: Delete "sec. 4" Insert "sec. 6" Page 6, line 1: Delete "sec. 7" Insert "sec. 9" Page 6, lines 3 - 4: Delete all material and insert: "(b) AS 11.41.200(a), as amended by sec. 1 of this Act, AS 11.81.900(b)(65), as added by sec. 2 of this Act, and AS 12.55.090, as amended by sec. 8 of this Act, apply to offenses occurring on or after the effective date of this Act." Page 6, line 5: Delete "sec. 8" Insert "sec. 10" Page 6, line 10: Delete "Sections 8 and 9" Insert "Sections 10 and 11" Delete "sec. 12" Insert "sec. 14" CHAIR FRENCH explained that the amendment incorporates some recommendations from the Children's Justice Act Task Force to look at ways to strengthen the statutes regarding assault on a child. 2:25:19 PM MS. CARPENETI expressed concern with the proposed amendment to Sec. 11.41.200, assault in the first degree. The Office of Special Prosecutions and Appeals (OSPA) said they probably wouldn't use the charge in the proposed Sec. 11.41.200(a)(5)(A) because it would be easier to charge under the current Sec. 11.41.200(a)(2). That is, "with intent to cause serious physical injury to another, the person causes serious physical injury to any person." The new provision proposed in Sec. 11.41.200(a)(5)(B) would also be covered under a crime of assault in the second degree. That crime is already prohibited and it uses definitions that the courts and attorneys are accustomed to. She also mentioned that the definition proposed by the task force for "serious bodily injury" was problematic because it listed a series of examples rather than giving a generic definition. She said she worked on some suggestions and would make them available at the Chair's discretion. These would include possibly amending the crime of endangering the welfare of a child in the first degree, which is a class C felony under most circumstances. It talks about reckless failure to provide adequate food or liquids to a child that results in protracted impairment of the child's health. These too are terms that DOL uses and have been considered by courts. 2:30:32 PM CHAIR FRENCH commented on the apparent disconnect between the Children's Justice Act Task Force representation and DOL's representation, and encouraged Ms. Carpeneti to speak with the task force representatives about where they feel there are weaknesses in the system. MS. CARPENETI responded that she would be happy to speak to both Jan Rutherdale and Mr. Janidlo about specific cases and the underlying reasons that the people who testified thought that the criminal justice system was inadequate. SENATOR COGHILL asked what the culpable mental state is for proving someone acted "recklessly." MS. CARPENETI explained that the prosecution has to prove that the person was aware of the risk and consciously disregarded it. SENATOR COGHILL asked if there is a different culpable state if the victim is a child as opposed to an adult. MS. CARPENETI replied the culpable mental state is the same under AS 11.41.200(a)(2), whether the victim is an adult or a child. SENATOR COGHILL said he was concerned that this would make it more difficult to charge somebody who had harmed a child. MS. CARPENETI clarified that this does not change the culpable mental state. 2:34:48 PM CHAIR FRENCH asked Ms. Houston and Mr. Moody if they wanted to comment on the amendment. DOUGLAS MOODY, Attorney, Public Defender Agency, Department of Administration (DOA), said he didn't have the amendment. CHAIR FRENCH said he would likely withdraw the proposed amendment to allow time for more background work before taking final action as a committee. 2:35:49 PM CHAIR FRENCH withdrew Amendment 2. SENATOR COGHILL asked if bodily injury to a child would be an aggravator or a primary charge. CHAIR FRENCH said it's structured in the amendment as a primary charge. He asked Ms. Carpeneti if there was an aggravator dealing with the age of a victim. MS. CARPENETI replied there is an aggravator that deals with a victim that is particularly vulnerable; that includes age. SENATOR COGHILL opined that this would create a level of proof that may not have to be the same level as an aggravator. CHAIR FRENCH clarified that aggravators are just like charges. SENATOR COGHILL asked if there was more discretion. MS. CARPENETI said that under the Blakely decision, the state would have to prove the aggravator beyond a reasonable doubt to a jury, but in sentencing a judge has discretion to weigh the worth of the aggravator. 2:37:29 PM CHAIR FRENCH asked if DOL's case management system is able to sort how often a particular aggravator is used. MS. CARPENETI offered to follow up with an answer. CHAIR FRENCH announced he would hold SB 186 in committee. 2:37:49 PM There being no further business to come before the committee, Chair French adjourned the meeting at 2:37 p.m.