Legislature(1995 - 1996)

01/19/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                
 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            
 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              
 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.                             

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