Legislature(1995 - 1996)

02/23/1996 04:00 PM JUD

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

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