SENATE JUDICIARY COMMITTEE March 8, 1999 1:35 p.m. MEMBERS PRESENT Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT Senator Robin Taylor, Chairman COMMITTEE CALENDAR SENATE BILL NO. 25 "An Act relating to sentences for misdemeanors." -HEARD AND HELD SENATE BILL NO. 26 "An Act relating to providing false information or reports to a peace officer." -HEARD AND HELD SENATE BILL NO. 77 "An Act relating to civil actions by municipalities and certain public corporations and prohibiting certain civil actions by them against firearms or ammunition manufacturers and dealers." -SCHEDULED BUT NOT HEARD PREVIOUS SENATE COMMITTEE ACTION SB 25 - No previous action to report SB 26 - No previous action to report SB 77 - No previous action to report WITNESS REGISTER Mr. Mike Pauley Staff to Senator Loren Leman State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SB 26 and SB 25 Ms. Anne Carpeneti Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on SB 26 and SB 25 Ms. Margot Knuth Assistant Attorney General Department of Corrections 240 Main St. suite 700 Juneau, AK 99801 POSITION STATEMENT: Commented on SB 26 and SB 25 Mr. Blair McCune Deputy Director Alaska Public Defender Agency 900 West 5th #200 Anchorage, AK 99501 POSITION STATEMENT: Commented on SB 26 and SB 25 Mr. David Hudson Alaska State Troopers 5700 East Tudor Road Anchorage, AK 99507 POSITION STATEMENT: Supported SB 26 and SB 25 ACTION NARRATIVE TAPE 99-16, SIDE A Number 001 VICE-CHAIRMAN RICK HALFORD called the Judiciary Committee meeting to order at 1:35 and announced SB 26 would be the first item for consideration. SB 26-FALSE INFORMATION/REPORT TO POLICE MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 26. SB 26 creates a new crime of giving false information to a police officer. Under current law, a person is guilty of a class A misdemeanor for giving false information to a police officer with the intent of implicating another in a crime. SB 26 would make it a class A misdemeanor to give false identity information to a police officer while under arrest or detention for a misdemeanor offense. Any false identity information may hinder justice regardless of intent. MR. PAULEY explained SB 26 also creates a class C felony for providing false identity information while under arrest or detention for a felony offense. MR. PAULEY said the bill emphasizes the gravity of providing false identity or information to a peace officer in an attempt to avoid prosecution. The severity of this crime is tantamount to physical escape and should be punished accordingly, with more severe punishment for more severe offenses. He also claimed false information can derail investigations to the point they are stale and cannot move forward. MR. PAULEY concluded by saying SB 26 is supported by the Anchorage Peace Officers Association, the Victims for Justice and the Alaska Association of Chiefs of Police. Number 050 SENATOR HALFORD asked if the bill applies only to a person who is under arrest or detention or being served a warrant. MR. PAULEY agreed it does. SENATOR HALFORD asked if the bill also covers people being issued a citation. MR. PAULEY replied it does, but that would be a misdemeanor. SENATOR HALFORD clarified that until the point a person is issued a citation, there is no violation. MR. PAULEY responded that he believed that was correct, but would depend on the interpretation of "under arrest or detention." SENATOR HALFORD noted this bill includes making a false report to the Department of Natural Resources (DNR) concerning the condition of a dam or reservoir. MR. PAULEY claimed this was in existing statute and he was unfamiliar with the history of this. SENATOR HALFORD commented, "It was a very foolish bill we passed about a decade ago." Number 114 SENATOR DONLEY claimed "We have other laws to cover that particular issue . . . "[false reports to DNR]. SENATOR DONLEY asked if it is a misdemeanor to give false identity information to a police officer conducting an investigation, without the intent to implicate another. He said this seems to leave a gap; no crime is committed unless a person gives false information with the intent of implicating another, or while under arrest or detention, or being issued a citation. SENATOR HALFORD explained if a person gives false identity information when a police officer merely asks, "Who are you?", there is no crime, as the person is not under arrest or detention. He agreed there seems to be a gap. SENATOR DONLEY suggested there could be public policy reasons why the sponsor does not want to include this. MR. PAULEY replied the sponsor would not be likely to object to broadening the scope of the bill. Number 196 SENATOR ELLIS asked if the sponsor actually believes providing false information is as serious a crime as physically eluding arrest. He also asked if MR. PAULEY could provide examples of cases that had gone stale due to false information. MR. PAULEY did not have examples of stale cases, but said this concern had been conveyed to him by the Anchorage Police Department. He said he was comparing physical escape with false information in an analogy and the point is that deception is being used to elude arrest and the severity of the penalty should correlate with the severity of the offense. SENATOR ELLIS said he was surprised MR. PAULEY would equate the two, as physical escape is an objective situation and a report of false information seems more subjective. SENATOR HALFORD said the false information given must be with the intent to implicate another or regarding identity or to report a false alarm. He asked if a correctional officer is considered a peace officer and how this bill might apply to people who are incarcerated. MS. MARGOT KNUTH, representing the Department of Corrections, remarked the Department of Law might be better suited to answer questions about whether or not correctional officers fall under the definitions of SB 26. SENATOR HALFORD suggested "blaming it on somebody else" is probably a regular occurrence in prison. MS. KNUTH replied the Department has disciplinary procedures to deal with this. Number 282 MS. ANNE CARPENETI, representing the Department of Law, said it does not seem as if correctional officers are included under the definitions in SB 26; she said she would research the question and provide the committee with a definitive answer. SENATOR HALFORD asked if Village Public Safety Officers (VPSOs) are covered under the bill and MS. CARPENETI said they are. SENATOR HALFORD asked what constitutes detention and how this bill would apply if a citation is not actually issued. MS. CARPENETI replied official detention is defined as arrest or something like it. A person merely stopped for a citation probably would not be under detention. She noted that the common definition of detention might apply. SENATOR HALFORD claimed the bill does not "reach what you are trying to reach . . . the person who has given the false information will have the defense 'but I wasn't arrested, I wasn't cited'." MS. CARPENETI said the Department's concern is that it is more serious to falsely implicate another in a crime or create a false alarm (both class A misdemeanors) than to give false identity information (a C felony under SB 26). SENATOR DONLEY asked if the latter crime should be an A misdemeanor. MS. CARPENETI concurred, noting that criminally negligent homicide is a C felony offense. Number 348 SENATOR HALFORD reported fiscal notes had been received for the bill. SENATOR DONLEY considered the possibility of reducing Section 1 to a class A misdemeanor and allowing it to encompass all class A misdemeanors. Additionally, he proposed including the simple crime of providing false information to a peace officer (while not under arrest, detention, etc.) as a class B misdemeanor. MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency, said the Agency's main concern is how well the C felony created in SB 26 fits with existing C felonies such as resisting arrest. MR. MCCUNE suggested adding a requirement for providing false information "with intent to avoid prosecution" would bring that provision in line with the others that require the same type of mental state. MR. MCCUNE reported "official detention" is used as a term of art, and is not the same as the common definition. MR. MCCUNE agreed that this bill does not appear to apply to correctional officers. Number 454 SENATOR HALFORD asked if the bill would apply to probation officers who could have cause to ask the identity of a person in the company of someone on probation. He commented the Agency knows false information is given in 2% of police cases, showing this is a valid problem to address. MR. MCCUNE said juveniles might give false information initially, but "change their tune" after a stern look. This charge is for people who persistently give false information. SENATOR DONLEY commented if the bill does not define "detention," the Public Defender Agency will argue it is not specific enough and the term needs to be defined. Number 483 MR. DAVID HUDSON, representing the Alaska State Troopers, supported SB 26 as an aid to police investigations. He asked the sponsor to consider including false information given to an officer conducting an investigation. He said by the time a suspect is under arrest, making a positive identification is relatively easy. He also suggested the committee might consider including an "intent to avoid arrest" provision to the bill. SENATOR ELLIS asked MR. HUDSON when an investigation starts and when it stops. MR. HUDSON explained investigating officers identify themselves and explain they are conducting an investigation before they ask for a person's identification. They then provide the person's name to a dispatcher for a background check. A person who has a warrant out for their arrest may give false information at this time; however, if an officer doubts the veracity of the information provided, he or she may remind the person it is a crime to give false information to a peace officer. Number 540 SENATOR ELLIS asked if expanding the bill to include investigations would widely broaden the bill's scope. MR. HUDSON said such a change would encompass many aspects of police work and "strengthen the ability of law enforcement to provide positive public contact." SENATOR HALFORD asked if a person contacted in an investigation is required to give information to police. MR. HUDSON replied a person has the right to remain silent. Number 571 SENATOR HALFORD said the committee would hold SB 26 and take it up in the future. SB 25-THREE-TIME LOSER: VIOLENT MISDEMEANORS MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 25. SB 25 is a bill designed to address people who commit repeated violent misdemeanors. MR. PAULEY said it is common for felony offenses to be reduced to misdemeanors during the plea bargain process. Under SB 25, a person convicted of a third violent misdemeanor in a ten- year period will be prosecuted for the third offense as if it was a violent felony. TAPE 99-16, Side B Number 582 MR. PAULEY explained SB 25 covers eight offenses (class A and B misdemeanors). Multiple offenses within a single criminal episode are considered single offenses for the purpose of this bill. If the defendant does not concede prior conviction, the prosecution must provide the court with proof of the convictions at least 20 days before sentencing. If the defendant disputes the accuracy or relevancy of the prior record, he or she must serve the prosecutor with a notice of denial 10 days before sentencing. MR. PAULEY said SB 25 will provide an additional tool to keep dangerous offenders off the street and send a message that the state will not tolerate violence as a means to settle disputes. MR. PAULEY indicated the sponsor met with a representative of the Department of Law to address the department's concern over a possible equal protection challenge to the bill. MR. PAULEY said the challenge would arise from the sentencing difference between two defendants who commit a violent misdemeanor, one who has two prior violent misdemeanor convictions and is sentenced as a felon, and the other who has two prior felony convictions and is sentenced as a misdemeanant. MR. PAULEY said the opinion of the drafting attorney is that the state could present a legitimate argument to the "rational basis" test and the bill would be constitutional. However, the sponsor would prefer a bill without any question of constitutionality and is working toward an alternative. MR. PAULEY commented that one alternative under scrutiny might lower the bill's substantial fiscal note. Number 543 SENATOR HALFORD asked how the bill would apply in situations where offenses occur in such quick succession that there may not be a conviction for them by the time the third offense is brought forward. MR. PAULEY said that situation had not been anticipated. Number 528 SENATOR ELLIS asked for an explanation of stalking in the second degree. MR. PAULEY read the definition: "[to] knowingly engage in a course of conduct that recklessly places another person in fear of death or physical injury or in fear of the death or physical injury of a family member." SENATOR HALFORD noted this crime can be committed verbally "from 1,000 miles away." SENATOR ELLIS assumed that a defendant facing conviction under SB 25 will be entitled to a full jury trial. MR. PAULEY agreed. SENATOR ELLIS asked if the bulk of the costs reflected in the fiscal notes comes from additional jury trials. MR. PAULEY said that, and the cost of additional incarceration, comprise the bulk of the fiscal notes. SENATOR HALFORD asked what constitutes misconduct involving weapons in the fifth degree. MR. PAULEY replied it is the possession of a weapon on premises where liquor is sold for on-site consumption or possession of a weapon by a minor without permission or possession of a weapon in a parking lot adjacent to a child-care or domestic violence/sexual assault shelter. This offense includes possession of a switchblade or "gravity" knife. SENATOR HALFORD asked if this means, "Three gravity knives and you're out?" He suggested, "maybe that one should come off." Number 460 MS. ANNE CARPENETI, representing the Department of Law, said the equal protection challenge would result from a person with two prior misdemeanor convictions being treated more seriously than a person with two prior felony convictions. SENATOR DONLEY said the argument could be made that a repeat or an escalation of a type of criminal conduct is worse than a decreasing level of criminal conduct. MS. CARPENETI stated the Department is also concerned an increase in grand jury indictments would require a big step up in the level of prosecution; this is reflected in the Department's fiscal note. Another concern is the effect this bill will have on the prosecution of first and second violent misdemeanor offenses, according to MS. CARPENETI. MS. CARPENETI explained the Legislature last year adopted mandatory minimum sentences for second and third degree domestic violence and fourth degree assault. These are the most serious offenses covered by SB 25 and she suggested the committee consider waiting for these new laws to take effect, in order to see how prosecutions are affected. She suggested they wait one year, saying "it sounds like a good idea to get tough on people who continue to commit violent misdemeanors . . . but this bill has some problems and we would recommend waiting and getting more information on what we just did last year . . . " SENATOR ELLIS asked if the Anchorage Prosecutor's office has submitted their concerns in writing. MS. CARPENETI did not know but said she would ask them to do so. Number 385 MS. MARGOT KNUTH, representing the Department of Corrections, remarked that SB 25 keeps the actual offense a misdemeanor and only considers it a felony for the purposes of sentencing. She asked if the bill will allow presumptive sentencing and allow these crimes to be prosecuted by municipalities. She said this may be a step away from encouraging municipalities to deal with public services. SENATOR DONLEY asked how many municipalities currently prosecute misdemeanors. MS. KNUTH answered Anchorage and Juneau do. She stated than John Richards estimated there would be a thousand convictions under this law per year. The fiscal note was determined using fewer than 250 cases. MS. KNUTH said the Department assumed for the fiscal note a sentence double the length of time currently served, and probation for misdemeanant. Additional expenses would include pre-sentence reports for these cases. Number 346 SENATOR HALFORD commented that the number of people who fall into this category is disturbing. SENATOR DONLEY asked what the number would be if the bill was narrowed to include only physically violent (contact) felonies. MS. KNUTH reported the majority of cases are assault and violation of domestic violence orders. SENATOR DONLEY asked if aggravating and mitigating circumstances are considered for misdemeanors. MS. KNUTH replied prior offenses as well as the length of prior sentences and a statement by the prosecutor are considered by the court. MS. KNUTH explained there are 35,000 people who go through the system annually; most are misdemeanants. SENATOR DONLEY asked about the possibility of a mandatory one-year sentence. MS. KNUTH replied the current 1.3 million dollar fiscal note assumes 60 extra days of incarceration per person; a mandatory one-year sentence would raise the amount to 6.8 million dollars. SENATOR DONLEY commented that he is disturbed by how violence is undervalued through plea bargaining. He said, "Ooh, what about taking their Permanent Fund Dividend if they're three times [offenders]- that would send them a message." SENATOR HALFORD observed that the bill could be boiled down to adding "60 days to serve for the person that's done this." Number 269 MS. KNUTH said a new Anchorage jail with a 400 person capacity is currently under construction, and "if the Legislature were considering six months to serve on a third time violent offender, we're going to have to up that right away." SENATOR DONLEY said this presumes no deterrent factor at all. MS. KNUTH replied all studies show the deterrent for these types of crime is the certainty that they will be caught and suffer consequences. According to MS. KNUTH, "Our system isn't good at that - we're good at throwing the book at people once we get them." SENATOR DONLEY said part of the problem is that these crimes are not taken seriously enough. SENATOR HALFORD remarked, "I'd like to see us do as much as we can afford, but sometimes I think we hit these people just harder than I can stand with my nose on their fist." SENATOR DONLEY suggested if "we pull all their Permanent Fund Dividends (PFDs)" this bill could be funded. MS. KNUTH reminded the committee that the offender's PFD is the source of restitution for the victim of the case. She mentioned PFDs are also often the only source of child support collected from offenders. SENATOR HALFORD asked SENATOR DONLEY if he would work with the sponsor on SB 25. SENATOR DONLEY replied, "I'd pass it the way it is - I like the bill." Number 228 MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency, expressed concern with prosecuting a crime "as if" it were another crime. The Legislature has passed many bills over the past few years that make a recidivist offense a more serious crime. This is well established, but prosecuting a crime "as if" it were another crime is not. MR. MCCUNE said it would be difficult to administer the provision that determines if prior offenses were elements of the same crime committed for the third time. Number 205 MR MCCUNE argued there are harsh sentences given now to people convicted of a third domestic violence offense. Usually judges include a big suspended sentence along with any time to serve, and in case of an additional offense, the judge can impose a sentence of up to one year in addition to the accumulated time that had been previously suspended. MR. MCCUNE said many of these cases involve people with mental health problems and the Department of Corrections is the largest mental health care provider in the state. A program to track these people and provide them with mental health services has begun in Anchorage; MR. MCCUNE thought that "real strict mandatory minimums might hurt some of those programs." In the future, he hopes to see strong substance abuse programs in jails and follow up substance abuse treatment as a part of probation. MR. MCCUNE expressed concern regarding the ability of municipalities to prosecute these cases. Number 142 MR. DAVID HUDSON testified the Alaska State Troopers support SB 25. MR. MIKE PAULEY suggested there are alternatives to the current bill such as mandatory minimum sentences that avoid the equal protection challenge. He said this alternative would also reduce the fiscal note from the court system, though it might increase the fiscal note from the Department of Corrections. SENATOR HALFORD said the bill will remain before the committee for scheduling at the chairman's convenience. He said they would not get to SB 77 today. SENATOR DONLEY said SB 77 is "a pretty straightforward bill - I'd love to go ahead and move it out of here today." SENATOR HALFORD indicated the sponsor of the bill would prefer to wait. With no further business to come before the committee, VICE- CHAIRMAN HALFORD adjourned at 3:03.