SENATE JUDICIARY COMMITTEE January 31, 1996 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 30 Proposing amendments to the Constitution of the State of Alaska relating to the budget reserve fund. CS FOR HOUSE BILL NO. 127(JUD) "An Act relating to penalties for certain offenses committed against a peace officer, fire fighter, correctional employee, emergency medical technician, paramedic, ambulance attendant, or other emergency responders." PREVIOUS SENATE COMMITTEE ACTION SJR 30 - No previous Senate action. CSHB 127(Jud) - No previous Senate action. WITNESS REGISTER Senator Steve Rieger Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Sponsor of SJR 30 Brad Pierce Office of Management & Budget P.O. Box 110001 Juneau, AK 99811-0001 POSITION STATEMENT: Supports SJR 30 Representative Pete Kelly Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Sponsor of HB 127 Barbara Brink Public Defender Agency Department of Administration 900 W. 5th Ave., Ste. 200 Anchorage, AK 99501-4399 POSITION STATEMENT: Testified on CSHB 127 (Jud) Anne Carpeneti Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Answered questions on CSHB 127 (Jud) Col. Glenn Godfrey Division of Alaska State Troopers Dept. of Public Safety 5700 E. Tudor Rd. Anchorage, AK 99507-1225 POSITION STATEMENT: Supports CSHB 127 (Jud) ACTION NARRATIVE TAPE 96-4, SIDE A Number 001 SJR 30 USE OF BUDGET RESERVE FUND  CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:30 p.m. The first item of business was SJR 30. SENATOR RIEGER, sponsor of SJR 30, responded to a previous question raised by Senator Adams regarding the amount of money drawn from the Constitutional Budget Reserve (CBR). He explained there was a quantity of money drawn from the reserve, and a quantity not deposited initially, which the court subsequently ruled should have been deposited. The amount of that deposit for fiscal years 1991- 1994 is $1,055,000,000. The number of draws are itemized as follow: $390 million to cover the shortfall between revenues and appropriations for fiscal years 1994 and 1995; $130 million for reconstitution of the Mental Health Trust; $141 million to meet the effect of Art. IX, Sec. 17(d) of the Alaska Constitution; $68 million for the state's share of oil and gas litigation from July, 1990 through February, 1994; $11 million for the legal costs of oil and gas litigation in fiscal year 1995. The total amount is $1,702,978,690. Number 051 SENATOR TAYLOR asked what the current balance of the CBR is. BRAD PIERCE, policy analyst with the Office of Management and Budget, stated the anticipated balance of the CBR, at the end of FY 96, is $2.08 billion. MR. PIERCE reiterated the Administration's support of SJR 30, particularly the elimination of the sweep provision, which was never intended to include accounts that were set aside by the Legislature for specific purposes. The Administration also supports repeal of the payback provision as it is a debt we owe ourselves, and is something that must be explained to bond rating agencies. It has become more of an administrative nuisance than anything else. He requested the Legislature leave a clear trail of the intent of SJR 30: the concern being that no one inadvertently confuse the issue by replacing the term "available for appropriation," which has been clearly defined by the court, with the term "unrestricted revenue," and resulting in another court challenge. MR. PIERCE added the Governor would like clarification, in the resolution, of when a supermajority vote would be required to draw from the CBR, primarily in the context of how it would fit into an overall fiscal plan. He stated the Long Range Financial Planning Commission discussed requiring a supermajority vote to enable any use of reserves independent of any other condition. He noted the upcoming Joint State Affairs meeting during which the Long Range Financial Planning Commission's resolution (identical to SJR 30) will be reviewed. Number 133 SENATOR TAYLOR asked what part of SJR 30, concerning the supermajority vote provision, the Governor wants clarification of. MR. PIERCE repeated the Governor would like to see it discussed in the context of an overall fiscal plan. SENATOR TAYLOR asked Senator Rieger if the intent of the supermajority vote requirement in SJR 30 would be to require it only when utilizing CBR funds to increase the budget. SENATOR RIEGER said that was correct. He explained the context of the original amendment, and the intent of SJR 30, was/is to provide a mechanism to stop the temptation to increase spending when the settlements, or the results of a determination of an administrative proceeding, cause an unusual, one-time, influx of cash into the general fund. In some respects, that money is like other revenue, because it probably resulted from a tax case. Had it not been a tax case, the money would have been received in small amounts annually; instead it accumulated and was received in a lump sum. To help restore it to how it should have come in, the money can be used in a normal operating purpose, just as any other general fund revenue is, but not to increase spending. This money can be used to stabilize a spending plan, but not to increase spending without a supermajority vote. Number 169 SENATOR ADAMS asked if the Senate Finance Committee has developed a financial plan for other Senators to review, and if so, how much money will come from the CBR. SENATOR RIEGER replied he has not drafted a financial plan. SENATOR ADAMS expressed concern about getting the necessary 14 votes to pass SJR 30. SENATOR TAYLOR asked Mr. Pierce if his request for clarification was addressed sufficiently. MR. PIERCE explained that if the Rose plan was adopted, which uses the CBR as the "fly-wheel" of a fiscal plan for the future, the Legislature might want a different requirement to access the CBR. He believed the Governor was requesting more discussion in the overall context of fiscal planning. SENATOR TAYLOR indicated he was unaware of the subtle distinctions between the Rose plan and the Long Range Financial Planning Commission's plan. MR. PIERCE indicated the Rose plan would take the unrealized gains from the Permanent Fund (a little over $2 billion), deposit those gains into the CBR, and use both the interest from the earnings of the CBR, and the excess earnings off the Permanent Fund not used for inflation-proofing or dividends, for general fund spending to supplement oil revenues. That concept might require different access to the CBR than what is proposed in SJR 30. Number 200 SENATOR ADAMS asked if the original purpose of the permanent fund was to use the interest earned from the corpus to fund state government, and whether the Rose plan would set up a similar fund. MR. PIERCE replied that essentially a second permanent fund would be created. SENATOR TAYLOR inquired whether a supermajority would be required, under the Rose plan, to access those funds even though less money might be spent on the overall budget than the previous year. MR. PIERCE stated Mr. Rose suggested a constitutional amendment would be necessary to address the CBR but was not specific about how it would work. SENATOR TAYLOR asked where the current interest income from the CBR is being placed, and who is responsible for the investment and workings of the CBR. MR. PIERCE reported the interest is reinvested into the CBR which is invested by the Department of Revenue. OMB has projected a 6 1/4 percent rate of return on those funds, which is about 1 percent lower than the Permanent Fund. SENATOR TAYLOR questioned the lower rate of return. MR. PIERCE stated the CBR is invested in shorter term instruments, and there are more liquid assets. Number 236 SENATOR TAYLOR asked why interest income from the CBR is not used as ordinary income to the general fund. SENATOR RIEGER read Section A of the original constitutional amendment, " Money in the budget reserve fund shall be invested so as to yield competitive market rates to the fund. Income of the fund shall be retained in the fund." SENATOR TAYLOR questioned whether the interest income would remain in the CBR under SJR 30. SENATOR RIEGER replied it would, however he would welcome discussion on that policy. Number 261 SENATOR MILLER moved SJR 30 out of committee with individual recommendations. There being no objection, the motion carried. HB 127 120-DAY JAIL: ASSAULT ON OFFICERS  REPRESENTATIVE PETE KELLY, sponsor of HB 127, gave the following synopsis of the measure. The bill was created to do three things. First it provides a tool to law enforcement officers to curb the escalating level of violence against them by increasing the minimum sentence for assaulting a police officer. The intent was to send a clear message to those that would do violence to police officers. The bill contains a 120 day minimum sentence for fourth degree assault against a police officer. This bill provides similar protection to firefighters, emergency medical technicians, and other responders who are not trained to handle violent behavior. The bill also attempts to correct a flaw in the sentencing structure for class B and C felonies. Under current rules, a first-time offender assaulting a person would receive a greater sentence than a first-time offender assaulting a police officer. This result is related to the Wiley and Austin Rules and was designed to prevent double jeopardy. Number 322 SENATOR ADAMS referred to lines 3-4, on page 3 of the proposed committee substitute, and asked how the 120 day minimum was determined in relation to the crime of fourth degree assault. REPRESENTATIVE KELLY explained that a fourth degree assault charge can include the use of threatening speech. When drafting the measure, he felt the act of threatening speech should not carry a 120 day minimum sentence. In original discussions, he considered changing fourth degree assault to a felony. After further review, he decided to not attach the stigma of a felony for assaulting a police officer in a heated situation. Number 347 SENATOR TAYLOR asked Representative Kelly for a review of the changes made in the proposed committee substitute. REPRESENTATIVE KELLY stated the major difference is that the proposed committee substitute addresses the behavior of threatening speech and provides for a 30 day sentence, and repeals AS 12.55.125(d)(3) and 12.55.125(e)(3) which address the problem of double jeopardy. Presently a judge cannot aggravate a sentence for a class B or C felony, which results in a lesser sentence for assaulting a police officer. SENATOR MILLER moved adoption of the proposed committee substitute (9-LS0501\U). There being no objection, the motion carried. Number 374 ANNE CARPENETI, representing the Department of Law, responded to Senator Adams' question regarding a definition of the term "physical injury." She explained it is defined as "...a physical pain or impairment of a physical condition." SENATOR ADAMS asked if a person is intoxicated and accidently hits a police officer while falling, whether that person could receive a 120 day sentence. MS. CARPENETI replied that the activity must be proved to be reckless. SENATOR ADAMS stated that would be the intoxicated person's word against the officer's. MS. CARPENETI responded affirmatively, if the police officer believed the action was done recklessly, or with criminal negligence. SENATOR ADAMS asked if the aim of this measure is to put more people in prison for longer periods of time, in order to justify building a new correctional facility. MS. CARPENETI replied she was unaware of the sponsor's intent, and she did not have statistics on the frequency of assaults on police officers with her. SENATOR TAYLOR noted a fiscal note in members' packets from February, 1995. He added the committee substitute might reduce the estimated cost since it reduces the minimum sentence for threatening a police officer. He stated a new fiscal note would be obtained. Number 405 SENATOR GREEN asked for the definition of fourth degree assault. MS. CARPENETI read the statute. SENATOR ADAMS requested a comparison of the penalty for other crimes, such as shoplifting. MS. CARPENETI answered that concealment of merchandise is a class B misdemeanor; fourth degree assault is a class A misdemeanor. SENATOR TAYLOR asked if the 120 prison sentence is a minimum mandatory whereas the maximum sentence would be one year in jail with a $5000 fine. MS. CARPENETI replied that is correct and is the maximum sentence for any misdemeanor. SENATOR TAYLOR indicated concern with the concept of mandatory minimum sentences in general and felt it should be reviewed in the near future. He noted, in his experience, those sentences are used in cases that warrant longer sentences, and act to limit a judge's discretionary ability. Number 458 SENATOR GREEN asked if the minimum standard becomes the most usual sentence imposed. SENATOR TAYLOR agreed. SENATOR GREEN asked if there is another practical way to structure what the sponsor is trying to achieve. SENATOR TAYLOR disclosed that he discussed the problem with the sponsor, and does not know of a more efficient way to address the problem. MS. CARPENETI commented the only presumptive sentence currently in statute for class B and C felonies, for first time offenses, is that directed toward assault of emergency responders. One usually does not get the same term for a first offense nonpresumptive as for a second offense presumptive term. A class C felony carries a presumptive term, for a second offense, of two years. For a first- time class C felony conviction, if directed at a police officer, the presumptive term is one year. If that offense is not directed at a police officer or other emergency responder, there is no presumptive term. However, the courts have held there have to be special circumstances for the sentencing court to go beyond the two year presumptive term for the second offense, when sentencing for a first offense. BARBARA BRINK, Deputy Director of the Alaska Public Defender Agency, testified via teleconference from Anchorage. She expressed concern with Section 3 which increases the mandatory minimum from 30 to 120 days. She did support other portions of the bill, for example, adding a correctional employee, and eliminating certain presumptives in Section 6, to allow a judge more flexibility in determining what is appropriate in a particular case. MS. BRINK elaborated on her concern with Section 3 and discussed unanticipated results. More trials at the misdemeanor level will occur, as well as more plea bargaining by the Department of Law at that level, and there will be a disparate impact on the Alaska Native population and Bush citizens. She stated it is an extreme jump to go from a 30 day minimum sentence to a 120 minimum sentence. A four month sentence is a long sentence for a misdemeanor especially given the definition of physical injury. That definition covers two types of assaults in the fourth degree. The first type is recklessly causing physical injury. A person is deemed to be acting recklessly if he/she is aware of a substantial risk and disregards it, or if he/she is completely unaware of a substantial risk because of intoxication. Many of the assaults that arise in this category arise when police officers are dealing with intoxicated people. The second broad category is negligently causing physical injury by means of a dangerous instrument. There are fewer of those cases. MS. BRINK described a typical scenario in which a public defender client is charged with assault on a police officer in the fourth degree. It usually involves a highly intoxicated individual who has not broken any laws and is not being arrested, but is being placed in protective custody for their own safety. In Anchorage the Community Service Patrol, a highly trained organization, deals with these individuals and provides them with protective services. In the more remote locations in the Bush, the VPSOs and local police officers serve this function without the benefit of the training and experience of the Community Service Patrol. They approach the job with a more authoritative style and tend to be more forceful. The intoxicated individual does not exercise good judgment and may not understand what is going on. The situation may escalate with the individual flailing their arms or shouting, etc. Those types of behaviors could result in a conviction of assault in the fourth degree since those individuals are not being charged for resisting, since they were not being charged with any crime to begin with. Therefore, until they had contact with the police, they had not committed a criminal act, yet may be facing a mandatory minimum sentence of four months in jail. She stated those people are more likely to go to trial, or the State of Alaska is going to be more likely to engage in plea bargaining. She polled her offices to discuss these types of assaults, and universally found that very often it is a demonstrable attitude on the part of an officer that can result in a problematic situation. She added that in the experience of public defenders in bush Alaska, white people rarely get placed into protective custody. Also, in every community there are one or two police officers that are assaulted more often than others. The statute, as currently written, already has enough flexibility to address situations in which an offender deserves more than 30 days. Number 555 SENATOR ADAMS asked if including the word "up" after "sentenced" on page 3, line 2, would help. MS. BRINK replied it might create some confusion since it would establish a minimum but allow a judge to go under it. Number 568 COL. GLENN GODFREY, Director of the Division of the Alaska State Troopers, testified in support of SCSHB 127 (Jud). This bill will give police officers, and other emergency responders, additional support in their public safety efforts, during one of the most critical times of their job. This bill sends a clear message to the first responders that they are supported by the public they serve and a clear message to offenders that acts of violence against emergency responders will be dealt with seriously. The timing of this bill is quite appropriate based on the following statistics on all assaults against state troopers: in 1992 there were 66 assaults; in 1993 there were 61 assaults; in 1994 there were 66 assaults; and in 1995 there were 91 assaults. This noticeable increase is cause for great concern. In remote areas where there is no back-up for VPSOs, any support they can get to prevent assaultive behavior from escalating or reoccurring, gives them and the public served extra protection. Based upon his experience, when an assault on an officer is not of a serious nature, district attorneys are quick to scrutinize those cases and the charge is not pursued. The same holds true in isolated situations in which an officer might be more aggressive than necessary. The Alaska State Troopers strongly support the bill as it is consistent with the Division's enforcement priorities and programs. The bill will have little effect, and no fiscal impact, on the Alaska State Troopers or related programs. TAPE 96-4, Side B Number 577 SENATOR ADAMS inquired whether Col. Godfrey could delineate how many assaults were in the fourth degree. COL. GODFREY replied approximately one-third of the 91 assaults in 1995 were assaults in the fourth degree. In 1995 there were 8 assaults in which a gun was used; 15 assaults in which another weapon was used; 34 assaults were aggravated with no weapon; and 34 assaults were non-aggravated with no weapon. In 1995, VPSOs responded to 60 incidents involving the use of force of which 36 of those incidents were assaults on VPSOs. Number 564 SENATOR ELLIS asked Col. Godfrey to comment on Ms. Brink's remarks about the difference between officers who escalate an incident, and other types of professionals who defuse a situation. He asked if those officers are disciplined. COL. GODFREY replied that a vast majority of police officers do deal with such incidents in a professional manner and calm the situation, however, like in any other organization, there are employees who have to be counseled and disciplined. He believed those to be isolated incidents, and district attorneys statewide are aware of those situations. SENATOR ELLIS asked if psychological profiles are conducted during the screening process to try and eliminate those types of people before they receive training. COL. GODFREY responded affirmatively, and added one of the areas people are commonly rejected for is assaultive or aggressive behavior. Number 538 SENATOR ELLIS inquired whether any state troopers have been dismissed for a record of aggressive behavior. COL. GODFREY responded that state troopers have been dismissed for disciplinary reasons, and in isolated incidents, have been criminally charged for assault. SENATOR ADAMS asked MS. BRINK and COL. GODFREY whether the 120 day sentence fits the crime. COL. GODFREY felt the 120 day sentence to be appropriate especially in light of the increased number of assaults on emergency responders. Anytime a state trooper takes any type of forceful action against a citizen in the State of Alaska, they are required to fill out a "use of force" form which is reviewed carefully and requires three signatures. MS. BRINK responded that 120 days is too long for the average crime, and leaves to the discretion of police officers, troopers and district attorneys whether to charge a person with this crime when unwarranted, since the behavior may fit the technical definition of the crime. She repeated her support for the 30 day sentence since a 30 day sentence is much greater than what is typically imposed as a sentence of the same type against an ordinary citizen. Number 493 SENATOR ELLIS referred to Representative Kelly's statement about the deterrent value of increasing the sentence for fourth degree assault. He asked how realistic it is to expect those people who may be intoxicated or in the middle of a domestic violence altercation to take into consideration an increased mandatory minimum sentence before erroneously swinging at an officer. REPRESENTATIVE KELLY replied the police officers he spoke with were not as concerned about those types of incidents as they are about the nature and extent of assaults that seem to be increasing. Most police officers use some discretion, when someone is flailing their arms. In cases where people are incapacitated or out of control emotionally, the lesson should be to deal with substance control or emotional control. SENATOR ELLIS wondered how word of the increased penalty would get out. REPRESENTATIVE KELLY responded that laws are passed daily, and the public is informed through the media, police officers, and the court itself. SENATOR ELLIS stated his concern lies with the fact that people will serve longer sentences, rather than addressing the problem of substance abuse. Number 450 COL. GODFREY commented the deterrent effect will be realized in rural communities when a person, who others witness as assaultive, is charged and sentenced. SENATOR ADAMS requested a three day delay on the bill in order to review Section 3 further, and to research sentences for other fourth degree assaults. REPRESENTATIVE KELLY stated that considering the amount of concern about the 120 day sentence, he would be willing to work on alternatives, if necessary, with the interested parties. SENATOR TAYLOR announced SCSHB 127 (Jud) would be scheduled during the next week. Committee members then discussed the committee's policy on departmental position papers. The meeting was adjourned at 2:35 p.m.