Legislature(1995 - 1996)
02/23/1996 04:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 194 GANG RELATED CRIMES CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 4:10 p.m. SHERMAN ERNOUF, legislative aide to sponsor Senator Kelly, informed committee members the most recent version of the committee substitute is Version U (2/23/96) which was developed in collaboration with the Department of Law. He explained the following changes made to the proposed committee substitute. The bill amends the crime of murder in the second degree to include a felony murder provision for a death resulting from a drug offense or gang related shooting. This provision would hold drug dealers and gang members responsible when an innocent bystander is killed during a shoot-out by eliminating the claim of self defense. The bill criminalizes recruitment of a gang member (as a class C felony) if force, or the threat of force, against a person or property is used to induce a person to participate or commit a crime on behalf of the street gang. The bill also establishes the crime of recruitment in the second degree (as a class A misdemeanor), for encouraging, without force, a person under the age of 18 to participate in a gang by a person over the age of 18. Additionally, the proposed committee substitute establishes an elevated charge (to a class A felony) for weapons misconduct which is applicable to drive-by shootings. The bill allows expert testimony to be admissible in a criminal prosecution to show gang affiliation, customs, rivalries, and other characteristics. It provides for forfeiture to the state of motor vehicles, weapons, electronic communications devices or other money or valuables, used in, or obtained, through an offense that was committed for the benefit of, at the direction of, or in association with a criminal street gang. The last change allows for gang membership to be considered as an aggravator for sentencing purposes in felonies, and elevates misdemeanors when offenses are committed for the benefit of, at the direction of, or in association with, a criminal street gang; a person committing a class B misdemeanor would be charged with a class A misdemeanor if the crime was associated with gang activity. Mr. Ernouf emphasized the committee substitute is the result of a collaborative effort between Senator Kelly's office and the Department of Law and asked for the committee's support. Number 109 SENATOR ADAMS stated it appears the legislation was designed to further the sponsor's re-election campaign and repeated his initial concerns with the legislation. He questioned whether this version of SB 194 is still too cumbersome to enforce; whether the dress code contained as an identifying marker of a gang member could be misused; how a previous gang member would prove no current affiliation; and how the committee substitute would coordinate with the existing juvenile justice system. MR. ERNOUF replied the bill is the result of numerous constituent complaints received by Senator Kelly's office as the number of gang-related crimes in his district has increased. Second, the criminal street gang definition is modelled after California law, which contains the only successfully tried definition. The bill does not punish a person for being a criminal street gang member, only for committing a crime associated with a gang. The definition contains two requirements that must both be met for prosecution. SENATOR ADAMS asked how a previous gang member would prove no current affiliation. MR. ERNOUF clarified the definition requires a person to have committed a gang-related crime within the previous three years. A person who has not done so would not be charged and sentenced according to this legislation. Number 181 MICHAEL GRIMES, Supervisor of the Homicide, Assault, and Robbery Unit of the Anchorage Police Department (APD), responded to Senator Adams' questions. Regarding the possibility of a criminal prosecution emanating from a group's style of dress, he did not think that possible because criminal behavior must simultaneously occur. The APD has gathered intelligence information from around the municipality and state on gang members. The documentation process is conservative and careful and is driven by reports of criminal activity, for the most part arrests, or by self-admission. Current statistics show 438 bona fide gang members operating in Anchorage. In the past year and one half, since the information has been compiled, 53 different gangs have been identified; 22 are active and engage in criminal activity. Number 232 SENATOR TAYLOR repeated Senator Adams' question about the demographics of gang members, and how the legislation would interact with the juvenile justice system. MR. GRIMES indicated a significant number of gang members in Anchorage are under the age of 18 and active recruitment is occurring in the junior high and high schools. The measure covers both juveniles and adults engaging in criminal gang activity and addresses statutes that require automatic waivers for anyone aged 16 or over committing an unclassified felony and class A felonies. The Department of Law would have the ability, in extreme cases, to go through a waiver process for persons under the age of 16. SENATOR ADAMS stated previous testimony by a police enforcement official revealed specific provisions of the bill to be too cumbersome to enforce. He asked if the committee substitute remedied those problems and asked Mr. Grimes if he had further suggestions to the bill to help law enforcers decrease criminal street gang activity. MR. GRIMES pointed out the committee substitute amends the felony murder statute to address drug dealing which will significantly aid homicide investigations, apart from gang activity, because drugs were a contributing factor in 20 murders since 1993. Criminal gang activity would also fall under that statute. Current turf battles between gangs over drug trafficking are occurring and involve high caliber weapons. Eliminating the ability to claim self defense when a bystander is involved will aid in prosecution. Active recruitment by rival gangs led to a drive-by shooting last week in Anchorage. The provision in the bill addressing drive-by shootings will be most significant since those incidents are occurring more frequently in Anchorage. For that offense, a 16 year old will be waived into adult court and charged with a class A felony. He believes the stiffer sentences in the proposed committee substitute will deter criminal gang activity. SENATOR ADAMS asked if the APD believes it can enforce the legislation as written. MR. GRIMES believed so, and that the legislation will be a useful tool in combatting the problem of criminal gang activity. Criminal gang investigators in other states have affirmed that once criminal gang activity begins it does not stop on its own. Number 330 SENATOR TAYLOR commented that part of the concern about enforceability during the last hearing centered around a police officer's inability to immediately identify a gang member as a person who committed a crime within the previous three years when access to records is problematic. MR. GRIMES replied that past legislative action has opened up the exchange of information involving juveniles. The APD does have access to that information, and is mandated to exchange information with school districts, regarding students with records of violent behavior or firearm use. SENATOR GREEN questioned whether the class A felony conviction for a drive-by shooting applies to criminal gang members only. MR. GRIMES answered it would apply to anyone shooting from a vehicle. SENATOR ELLIS moved adoption of the committee substitute (Version U). There being no objection, the motion carried. Number 356 SENATOR ADAMS asked Mr. Grimes if the bill should contain any other provisions to help law enforcement officials address the problem of criminal street gang activity. MR. GRIMES stated he was unaware of anything at this time. LT. CASANOVAS, Alaska State Troopers, stated the Department of Public Safety (DPS) believes CSSB 194 provides law enforcement agencies with additional investigative and prosecutorial options. He suspected the legislation will have more impact on urban law enforcement agencies than on the Alaska State Troopers. SENATOR ADAMS asked Lt. Casanovas if there is anything that could be added to the legislation to help law enforcement officials. LT. CASANOVAS indicated the legislation is very comprehensive. CHRISTINE SOUR, testifying via teleconference from Fairbanks, asked if a gang member would be held responsible if at the scene of a gang crime, even though that member did not commit the crime. SENATOR TAYLOR interpreted the language to mean the gang member would have to be, in fact, involved in the commission of the crime, and to have committed a previous crime as a gang member. MS. SOUR questioned whether efforts would be made to disband the gang after a crime was committed. SENATOR TAYLOR did not believe the bill extends that far, as drafted. MS. CARPENETI stated if a person wants to get out of a gang, he/she needs to stop committing crimes with the gang. Language on page 2 of the bill requires the gang member to act with the street gang in the commission of a crime. SENATOR TAYLOR clarified that only those present and involved would be prosecuted; the bill does not make a person guilty by association. MS. CARPENETI emphasized the bill does not criminalize membership in a gang: only active participation in criminal activity by gang members would enhance charges and sentences. Number 420 MS. SOUR asked for further clarification of how CSSB 194 will affect those under 18 years old, since many of the gang problems in Anchorage are among high school students. SENATOR TAYLOR stated the bill addresses very serious offenses. Two years ago, the juvenile law was changed so that an automatic waiver of juvenile jurisdiction occurs when a person over the age of 16 is accused of those specific offenses which include class A felonies. If a 15 year old committed such a crime, he/she would be prosecuted under the juvenile system, unless the prosecutor requested a waiver to adult court. MS. SOUR questioned when a person can claim self defense in a gang war. SENATOR TAYLOR explained that claim cannot be made when an innocent bystander is injured or killed during a gang activity. MR. GRIMES and MS. CARPENETI agreed. JACK CHENOWETH, Division of Legal Services, informed committee members that when the law was amended several years ago, providing for an automatic waiver of juveniles for offenses punishable as unclassified felonies or class A felonies, the amendment added the requirement that those offenses must be committed against a person. Because of that limiting factor, only the offense against the innocent bystander (page 2, lines 11-14) qualifies for automatic waiver. The drive-by shooting offense (page 3, lines 1-3) would not. SENATOR TAYLOR felt the bill should be amended to include both offenses for qualification of automatic waivers. Number 488 SENATOR ADAMS asked what the penalty for a class A felony is. MR. CHENOWETH commented the penalty is serious and substantial but did not provide details. He noted both AS 11.41.110(a), murder in the second degree, and AS 11.61.190(a), misconduct involving weapons in the first degree, are class A felonies. The difference is that one is in AS 11.41, which is a crime against a person, the other is not. MS. CARPENETI noted that this legislation was not intended to address juveniles, vis a vis adults. Juveniles, if appropriate or under the law, would be required to be waived to adult court for commission of class A felonies or unclassified felonies, however will be dealt with in the juvenile justice system for other offenses. SENATOR TAYLOR expressed concern that this bill will only affect gang members 18 years or older, and to a very limited extent, those 16 years or older. MS. CARPENETI responded this bill would not affect the existing juvenile justice system for those under 16. SENATOR TAYLOR stated that is why the committee is concerned. If a juvenile discharged a firearm and shot holes through buildings, he/she would be charged as a juvenile. If the juvenile discharged a firearm and hit a person, the automatic waiver would occur. Number 527 LYNN STIMLER, representing the ACLU, stated the ACLU is concerned about the language used in the description of gang activity. Although the provision requires a person to have two kinds of conduct, the language is too broad to pass a constitutional test. Identifying markers in the definition describe groups such as girl scouts; if those girl scouts committed a misdemeanor, such as shoplifting, they would qualify for enhanced sentencing under CSSB 194. MS. STIMLER discussed First Amendment concerns with the regulation of forms of expression in the bill. She also expressed concern with the forfeiture provision, and believed that provision will complicate the bill, since cases are pending before the Ninth Circuit Court. SENATOR ADAMS asked Ms. Stimler for suggestions to avoid that problem. MS. STIMLER suggested removing the forfeiture provision altogether and offered to provide written material. MS. STIMLER questioned whether the Department of Law still believes the bill would be too expensive and complicated to enforce. She also questioned how CSSB 194 would affect HB 387, which proposes revision of the Juvenile Justice Code, and HB 104 which addresses confidentiality of records. She expressed concern that the three bills will conflict with each other, or create a disjointed approach toward the juvenile justice system. Her last comment was directed to the lack of due process for juveniles, and juvenile enforcement, created by CSSB 194. Number 579 SENATOR ADAMS asked for a summary of HB 387. MS. STIMLER replied HB 387 proposes a whole-scale revision of the juvenile code and is moving quickly through the process. SENATOR ELLIS questioned whether the definition used in SB 194 was upheld under the California Constitution, or whether it was upheld by the U.S. Supreme Court. TAPE ONE, SIDE B Number 000 MS. STIMLER stated she would submit written testimony on that subject. SENATOR TAYLOR commented that if the girl scouts were convicted of a misdemeanor offense, the offense would be aggravated from a class B to a class A offense. Second, if within a year and a half later, the same group committed a murder, an automatic waiver might occur based upon the offense itself. MS. STIMLER stated that the misdemeanor offense would be enhanced because the girl scouts would be considered a gang under the definition in CSSB 194. SENATOR TAYLOR noted it is difficult to get petitions brought to prosecute juveniles who commit misdemeanors. MS. STIMLER repeated her concern that the definition is so broad as to include any group dressed similarly and applies to misdemeanor offenses. She felt the committee is the place to address the definition, rather than a courtroom. She repeated her offer to provide suggestions to tighten the definition. SENATOR TAYLOR referred to the forfeiture provision and indicated the Municipality of Anchorage can forfeit property in a DWI offense, but that has not been accomplished at the state level because of lien problems. MS. CARPENETI stated the bill was drafted as is because the forfeiture provision is included in one of the allowable sentences in Title 12, so that it is not an automatic or mandatory forfeiture for a particular offense, but is one of the choices the court can make when sentencing a person. The court must take into consideration any liens on the property. Number 530 SENATOR TAYLOR announced the bill would be held over until the following week and asked MS. STIMLER to submit concerns and suggestions to the committee before that time. MS. CARPENETI clarified that the Department of Law did have serious concerns about the way the original bill was drafted, but after working with the sponsor and staff to address those concerns, the Department of Law supports the measure as presently drafted. There being no further testimony on CSSB 194, the committee took up SB 177.