Legislature(1995 - 1996)
01/19/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 194 GANG RELATED CRIMES SHERMAN ERNOUF, legislative aide to Senator Kelly, sponsor of SB 194, stated that SB 194 was introduced in response to a rapid increase of gang violence in the Anchorage area. In 1995, there were more than four gang-related murders committed in the Anchorage area, dozens of drive-by shootings, and over 400 gang members have been identified by police officers. SB 194 was drafted to give law enforcers the tools needed to deal more effectively with the gang problem. During the drafting process, other states' codes were reviewed, specifically a California statute that was enacted as emergency legislation to deal with an epidemic problem of gang violence. MR. ERNOUF gave the following synopsis of SB 194. Section 1 (a)(4) amends the crime of murder in the second degree and sets the minimum sentence to seven years with a 99 year maximum for felony murder. This would extend a felony murder charge to a situation where an innocent bystander is killed as the result of a gang war. This provision would eliminate a claim of self-defense and would hold gang members more accountable for their violent acts. A second change would give police the authority to arrest and hold, for class A misdemeanors, all members of a gang involved in a drive-by shooting, until the person who fired the gun is identified. Currently the police may know a shot has been fired, and find a gun in the automobile, but cannot make an arrest when they cannot identify which passenger fired the gun. MR. ERNOUF continued. SB 194 elevates the crime of a drive-by shooting from a class C felony, 0-5, to a class B felony, 5-10, in Section 2. The definition of a "criminal street gang" is contained in Section 6, and is inclusive for gang members, but excludes groups that might fall under a similar definition, such as the boy scouts. The crime of participating in a criminal street gang, also in Section 6, is modelled after the California Penal Code, and is punishable as a class C felony. That provision also provides for forfeiture of gang property, including personal property and automobiles. Section 8 allows for expert testimony regarding gang membership. Number 225 SENATOR ADAMS asked for clarification of Section 6, and noted concern that the definition includes style of dress as an identifying marker of a gang member. MR. ERNOUF explained that a gang member must also have acted, individually or jointly, in the preceding three years, to commit a felony, under Section 6(B). He added that provision was purposely included to avoid arresting a member of any group and is modelled after the California statute. SENATOR ADAMS asked if a person, considered a gang member at one time, or convicted as such, would be categorized a gang member for the rest of his/her life under this legislation. MR. ERNOUF replied that Section 6(B) provides for a limit to behavior in the previous three years. Number 250 SENATOR ADAMS asked whether SB 194 would coordinate with the juvenile justice system, since many gang members would be juveniles. MR. ERNOUF replied SB 194 is tailored toward gang activity, whether the activity be committed by juveniles or adults. SENATOR TAYLOR asked if SB 194 became law, and an offense did occur, whether the offender would be treated as he/she is currently: a juvenile would be treated as such. MR. ERNOUF believed that would be the case. Number 281 ANNE CARPENETI, representing the Department of Law, stated although the gang problem in Alaska needs to be addressed, according to Alaska State Troopers and members of the Anchorage Police Department, SB 194 will not help law enforcement officials to do so. LT. DENNIS CASANOVAS, Alaska State Troopers, gave the following testimony via teleconference. SB 194 is a valiant attempt to provide Alaska law enforcement agencies and prosecutors with a tool to combat violent crime. When crimes are committed in concert with, or by, criminal street gangs, the Department of Public Safety (DPS) is in support of efforts to reduce violent criminal acts, but SB 194 might be too cumbersome to be effectively enforced. To interpret, enforce and prosecute this proposed legislation, a complete understanding of the definition of "criminal street gangs" and the pattern of criminal gang activity, as proposed, in AS 11.61.300 and AS 11.81.900, must be accomplished. LT. CASANOVAS continued. Several interpretations of the definitions can be made. For law enforcement officials faced with emergency response and first-line intervention to incidents of violent crimes on the streets, the ability to immediately identify and to have probable cause to detain or arrest those involved participants is an issue that is too complicated to be practical. In a drive-by shooting situation, if law enforcement officials were able to identify a suspect vehicle 15 minutes after it occured, the participants could have many defenses or excuses for their behavior which would not fit the description of gang activity under the definition set out in SB 194. Use of the existing language to prove the elements for such involvement may end up being too time consuming and subjective than what was intended. Criminal justice agencies may end up spending an inordinate amount of time investigating and litigating whether a suspect is a criminal gang member rather than spending efforts on the successful investigation and prosecution of violent criminal acts. LT. CASANOVAS relayed Dep. Commissioner Smith's agreement that the bill, in its present form, may create more complications, than provide solutions. The DPS is very interested in working with the sponsor to develop language to pursue the concept in SB 194 which allows law enforcement officers the ability to arrest, without a warrant, certain criminal suspects up to eight hours after a specified offense. Number 350 SENATOR TAYLOR asked Lt. Casanovas if DPS specifically supports the eight hour provision contained in SB 194. LT. CASANOVAS replied DPS supports the concept, but the definition of a street gang member would have to be clarified before the eight hour provision could be invoked. SENATOR TAYLOR discussed the impossibility of an officer knowing whether a passenger in a suspect vehicle had been involved in gang related activity in the past three years. Number 365 SENATOR ADAMS asked Lt. Casanovas to submit recommendations to the committee for definitional changes to be included in SB 194. MS. CARPENETI highlighted problematic sections of SB 194. In Section 1(a)(3) police officers are interested in adding a drug offense to the list of offenses. In Section 2(a)(3), substantive elements have been added to the offense that the state would have to prove in order to get a conviction. The language, "participates as a member of a criminal street gang and, acting for the benefit of, at the direction of, or in association with a criminal street gang or any of its members,..." is unnecessary since the intent is to criminalize the conduct of knowingly discharging a firearm from a propelled vehicle. By deleting the first two lines of subsection (3) there would be fewer elements to prove beyond a reasonable doubt in court, and the result would be the same. She also suggested changing the word "reckless" in the same section to be uniform with other sections. MS. CARPENETI continued. Pages 3 and 4 are conforming language to pages 1 and 2. Section 4(a)(9) is written in such a manner that it creates defenses of duress and necessity since a passenger might not be able to jump out of the car after the shooting has occurred. Section 5(a)(1) contains elements that would be hard to prove. Section 5(a)(2) would require a prosecutor to prove what is necessary to prove accomplice liability (intent and an act to help commit the crime) in addition to what is required by subsection (1) with the result being a class C felony. The current charge under an accomplice theory of liability for a robbery is a class A felony. Therefore Section 5 makes the charge harder to prove and results in a lesser offense. MS. CARPENETI added the forfeiture section does not add to AS 12.55.015, which requires forfeiture of deadly weapons under authorized sentences. Regarding forfeiture of property, the language in SB 194 would require the prosecutor to prove: the property was owned or managed by the leader of a street gang; the property was a proceed or derived from street gang activity; and that it was used in street gang activity on the basis of the offender's conviction. She stated proof of all three would be difficult to obtain. MS. CARPENETI addressed Senator Adams' question regarding the court rule change in SB 194. This change would allow expert testimony under circumstances in which it might not normally be allowed because a lot of the evidence would be propensity evidence. Number 444 SENATOR TAYLOR noted the committee's primary concern is whether SB 194 will meet constitutional muster. MS. CARPENETI agreed to provide the committee with more information. SENATOR TAYLOR suggested the committee defer further action on SB 194 until a committee substitute or amendments are brought forward that simplify the legislation and make it enforceable by both law enforcement officials and the judicial system. SENATOR TAYLOR adjourned the meeting at 2:00 p.m.