Legislature(1999 - 2000)
02/03/1999 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 5 - MISPRISION OF FELONY SENATOR DRUE PEARCE, prime sponsor of SB 5, explained the bill arose out of a case in Nevada where a seven-year-old girl was raped and murdered. The definition of misprision is to witness or to have knowledge of a felony crime against a person and fail to report that crime immediately to a peace officer or a law enforcement agency. SENATOR PEARCE said this is sometimes referred to as "the Good Samaritan Law." SB 5 makes it a class C felony if the unreported crime is a violent felony (as described in AS 11.41) or first degree arson. If the unreported crime is any other felony offense, it is a class A misdemeanor. SENATOR PEARCE recognized that the focus of SB 5 may need to be narrowed and perhaps the bill should apply only to the witnessing of crimes such as murder, kidnaping, fist degree assault and arson in the first degree. However, SENATOR PEARCE would also like the bill to apply to sexual crimes against children. SENATOR PEARCE noted there has been concern about the word "immediate" within the bill and suggested it might be changed to require the reporting of crimes "within a reasonable time." SENATOR PEARCE also asked the committee to consider including in the bill a defense for a battered wife who does not report battery against her child out of fear for her life. SENATOR PEARCE concluded SB 5 creates a tool that should be available to law enforcement. SENATOR PEARCE said SENATOR DONLEY had agreed to work on the legal issues of this bill in subcommittee. Number 082 MS. ANNE CARPENETI, representing the Criminal Division of the Department of Law, testified in support of the idea behind the bill as it applies to the most serious crimes. However, the bill could cause problems if applied to other types of crimes and may have unintended negative consequences. MS. CARPENETI explained that the current sponsor substitute covers property and drug crimes. Under this bill, someone who signs a neighbor's Permanent Fund dividend application with the knowledge their neighbor has been away for longer than the allotted amount of time would be guilty of a class A misdemeanor. Also, a parent of a child with a serious drug habit would be guilty if they did anything other than report their child to the police. MS. CARPENETI concluded it is simply not always best for the situation to compel a person to report a crime, and she cited rape victims as an additional example. Even in the case of sexual abuse of a child, parents should have options for treatment and not be mandated to report to law enforcement. MS. CARPENETI proposed that even in cases of other serious crimes, a law like this may affect the prosecution of perpetrators by making witnesses unwilling to offer testimony at a later date or to correct inaccuracies in their initial testimony. MS. CARPENETI stated a concern that SB 5 may create some imbalances when compared with other statutes. There is a law on the books right now that makes it a class C felony to "hinder prosecution in the first degree." This means anyone helping a felon hide his or her crime, avoid criminal responsibility, or profit from his or her crime, is guilty of a C felony. This crime seems more serious than misprision to MS. CARPENETI. MS. CARPENETI concluded this is a good idea for more serious crimes but bears examination for others. Number 168 SENATOR HALFORD recalled a television documentary he had recently seen which told the story of an 8-year-old boy and his mother who were murdered as a result of the boy being a witness to a prior murder. SENATOR HALFORD said this boy was a victim of the judicial system and to make a felon out of someone who does not believe the State can protect them is terrible, and compounds the failure of the criminal justice system to protect victims and witnesses. SENATOR HALFORD agrees with the intent but sees "awful problems with implementation." MS. CARPENETI agreed with SENATOR HALFORD. SENATOR HALFORD stated that the Nevada case was horrible and there should be some accountability, but, even for a good cause, SENATOR HALFORD thinks this bill goes too far. Number 208 MS. CARPENETI again agreed with SENATOR HALFORD and expressed her hope that everyone will do the right thing and report crimes but suggested they should proceed cautiously with this legislation. MS. CARPENETI observed that this law would criminalize common teenage behavior. SENATOR TORGERSON asked MS. CARPENETI if including an act of concealment within the definition of SB 5 would be a better approach. MS. CARPENETI replied this would narrow the scope of the bill a bit but explained there is a similar law in statute now. Number 226 SENATOR DONLEY asked if the bill only included unclassified felonies and arson in the first degree whether it would have covered the Nevada case. MS. CARPENETI did not know enough about the case to answer definitively, but she believed it would have. She told SENATOR DONLEY she would find out. SENATOR HALFORD said he would like to know of any other ways to attack this that might not create so many problems. He agreed the restriction of misprision to unclassified felonies is less problematic, but said even in our large cities citizens may be endangered by reporting crimes that they may not be able to stop. SENATOR HALFORD proposed adding a defense for people who do not report crimes out of fear. He asked MS. CARPENETI to prepare a list of existing law that could be used to prosecute this type of case. Number 254 MS. CARPENETI replied that she would be happy to; she listed the prohibition of solicitation of crime, aiding and abetting the commission of a crime and other laws that prohibit this type of behavior that occurs after the commission of a crime. MS. CARPENETI remarked she believes that the sponsor is trying to get at the person who merely witnesses a crime or learns about it after and does not report it. This, she believes, cannot be criminalized. SENATOR HALFORD asked what constitutes the crime of accessory before the fact. MS. CARPENETI replied it requires knowledge of a crime before the fact and some degree of complicity. Number 270 SENATOR DONLEY suggested dropping the penalty for misprision to a misdemeanor in order to fit with existing statute, limiting the crime of misprision to unclassified felonies and first degree arson, and adding an affirmative defense for people who do not report crimes due to perceived personal danger. MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender Agency, spoke to the problems he sees with the bill. He directed attention to a handout from a legal textbook. The text cited a similar statute adopted in South Dakota and MR. MCCUNE argued that this law would only affect witnesses "pure as the driven snow," as a person with any degree of culpability would be able to invoke the privilege against self-incrimination afforded by the U.S. Constitution. MR. MCCUNE said this privilege against self- incrimination "would kind of trump this statute." MR. MCCUNE said other privileges, such as the husband/wife privilege might also apply to cases like this. MR. MCCUNE stated there are statutes listed in AS 11.56 that deal with this type of crime, and "accessory" and "complicity" statutes would also apply, as well as the recently passed "conspiracy" laws. Number 339 CHAIRMAN TAYLOR commented he was struck by a phrase used in the article cited by MR. MCCUNE: "While it may be the duty of a citizen to accuse every offender and to proclaim every offense which comes to his knowledge, the law which would punish him in every case for not performing this duty is too harsh for man." CHAIRMAN TAYLOR observed this quotation comes from a centuries-old document; he proposed that misprision is a question that has been under debate for quite some time. CHAIRMAN TAYLOR announced he would set up a working group to further consider SB 5. Number 350 SENATOR HALFORD observed that it seems the privilege against self- incrimination would be absolute and a person accused of misprision would only have to invoke this privilege "and from there on, it is silence." He concluded SB 5 may not work in the face of this privilege, saying an accused person would not even have to invoke the privilege in front of a jury, but he or she could simply not answer questions. MR. MCCUNE agreed with SENATOR HALFORD. He said if a reasonable possibility of self-incrimination exists, the privilege can be asserted. SENATOR HALFORD said he would be interested in reviewing cases of any successful prosecution, anywhere in the U.S., under this type of statute in the last decade. CHAIRMAN TAYLOR, noting there were no further witnesses to testify, appointed a subcommittee consisting of SENATOR DONLEY, SENATOR HALFORD and himself, CHAIRMAN TAYLOR. He said the matter would be back before the committee within a few weeks.