Legislature(2019 - 2020)BELTZ 105 (TSBldg)
03/18/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB89 | |
| SB35 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 89 | TELECONFERENCED | |
| += | SB 35 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
[Contains discussion of SB 34.]
2:25:01 PM
CHAIR HUGHES announced that final order of business would be
SENATE BILL NO. 35, "An Act eliminating marriage as a defense to
certain crimes of sexual assault; relating to enticement of a
minor; relating to harassment in the first degree; relating to
harassment in the second degree; relating to indecent viewing or
production of a picture; relating to the definition of 'sexual
contact'; relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
2:25:14 PM
CHAIR HUGHES made opening remarks.
2:25:43 PM
At-ease.
2:27:02 PM
CHAIR HUGHES reconvened the meeting.
2:27:43 PM
SENATOR REINBOLD moved to adopt Amendment 1, work order 31-
GS1873\U.1, Radford, 3/13/19.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 1, line 5:
Delete "relating to assault in the second
degree;"
Page 6, line 24, through page 7, line 13:
Delete all material.
Renumber the following bill sections accordingly.
Page 22, line 28:
Delete all material.
Renumber the following paragraphs accordingly.
Page 22, line 29:
Delete "sec. 16"
Insert "sec. 15"
Page 22, line 30:
Delete "sec. 17"
Insert "sec. 16"
Page 22, line 31:
Delete "sec. 18"
Insert "sec. 17"
Page 23, line 1:
Delete "sec. 19"
Insert "sec. 18"
Page 23, line 4:
Delete "sec. 21"
Insert "sec. 20"
Page 23, line 5:
Delete "sec. 22"
Insert "sec. 21"
Page 23, line 6:
Delete "sec. 23"
Insert "sec. 22"
Page 23, line 7:
Delete "sec. 24"
Insert "sec. 23"
Page 23, line 8:
Delete "sec. 25"
Insert "sec. 24"
Page 23, line 9:
Delete "sec. 26"
Insert "sec. 25"
CHAIR HUGHES objected for the purpose of discussion.
2:28:03 PM
BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, on behalf of Chair Hughes, stated that
Amendment 1 was previously discussed [on March 13]. He referred
to page 6, line 24 through page 7, line 13, related to sexual
assault in the first degree and enhanced sentencing structure
for sexual assault in the third degree. This enhanced sentencing
structure was put into a previous bill, SB 12, and is no longer
needed in this bill.
2:28:59 PM
SENATOR REINBOLD asked what would happen if SB 12 does not pass.
MR. WHITT answered that this provision would not pass. He
suggested that the committee could keep the language in both
bills, but the language should be identical.
CHAIR HUGHES related her understanding that the language is
similar but not identical. She said that removing the language
would clear up any ambiguity and if SB 12 were to falter, the
committee could look at another vehicle.
SENATOR REINBOLD related her understanding that a different
version was in the other body.
2:29:58 PM
At-ease.
2:31:16 PM
CHAIR HUGHES reconvened the meeting.
2:31:26 PM
MR. WHITT said that several sections of the bill were removed
and placed in SB 12. He reminded members that it was the will of
the committee to make SB 12 a stand-alone vehicle to address the
issues in the Justin Schneider case and it includes the enhanced
sentence structures for sexual assault and assault.
2:32:02 PM
CHAIR HUGHES removed her objection.
2:32:14 PM
SENATOR REINBOLD objected to ask whether enhanced sentencing
will not be in effect if SB 12 does not pass.
MR. WHITT agreed that if SB 12 does not pass that there would
not be any enhanced sentencing, clarification on the definition
of sexual contact, credits for electronic monitoring or a fix
for the Justin Schneider loophole since those provisions are in
SB 12.
SENATOR REINBOLD related her understanding that if SB 12 does
not pass there will not be any enhanced sentencing, which is the
reason she raised the "red flag" to make sure people understand
the implications. She expressed her concern
SENATOR REINBOLD removed her objection.
CHAIR HUGHES indicated that multiple vehicles exist to remedy
this, including floor amendments.
There being no further objection, Amendment 1 was adopted.
2:33:36 PM
CHAIR HUGHES said many of the amendments were generated from her
office. She asked Senator Reinbold to move Amendment 2.
2:33:53 PM
SENATOR REINBOLD moved to adopt Amendment 2, work order 31-
GS1873\U.6, Radford, 3/13/19.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 1, line 9:
Delete "relating to eligibility for discretionary
parole;"
Page 17, line 29, through page 20, line 23:
Delete all material.
Renumber the following bill sections accordingly.
Page 23, lines 8 - 10:
Delete all material.
SENATOR MICCICHE objected for discussion purposes.
2:34:12 PM
MR. WHITT explained that Amendment 2 would remove language that
is in another bill, SB 34, which is in the committee. It relates
to discretionary parole. When the original bills for SB 34 and
SB 35 were read across, the sections related to discretionary
parole matched. However, because the Senate State Affairs
Standing Committee made a change to SB 34, and the committee
amended SB 35, this language is being removed to avoid having
two competing provisions in separate vehicles.
SENATOR REINBOLD asked whether the issues will remain if SB 34
does not pass.
CHAIR HUGHES responded that she hopes that SB 34 passes since
discretionary parole issues are very important. However, if SB
34 does not pass, the issues will remain.
MR. WHITT agreed, that if SB 34 does not pass, the provisions
[related to discretionary parole] will not pass.
SENATOR HUGHES clarified that if SB 34 does not pass, SB 35
could be amended on the floor.
2:35:49 PM
SENATOR MICCICHE removed his objection.
There being no further objection, Amendment 2 was adopted.
2:36:01 PM
SENATOR REINBOLD moved to adopt Amendment 3, work order 31-
GS1873\U.11, Radford, 3/14/19.
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 12, line 1:
Delete "the elements"
Insert "those"
Delete "under state"
Insert "defined as such under Alaska"
CHAIR HUGHES objected for the purpose of discussion.
MR. WHITT explained Amendment 3, stating that it makes a slight
change to the bill. He referred to page 12, line 1. This
corrects a drafting error. He referred to page 11, line 31
[through page 12, line 2] of SB 35, Version U, which read, "(D)
a conviction in this or another jurisdiction of an offense
having elements similar to the elements of a felony under state
law at the time the offense was committed is considered a prior
felony conviction;". It should be changed to read, "(D) a
conviction in this or another jurisdiction of an offense having
elements [similar to] those of a felony [defined as such under
Alaska] law at the time the offense was committed is considered
a prior felony conviction;" and said that this makes a minor
technical change and also adds "defined as such under Alaska."
This means that if an offense occurs in another state that is
similar law in the State of Alaska it is considered a prior
felony conviction in the state.
2:37:56 PM
SENATOR MICCICHE asked him to repeat the proposed language.
2:38:05 PM
MR. WHITT read, "having elements similar to those of a felony
defined as such under Alaska law at the time the offense was
committed is considered a prior felony conviction;".
2:38:37 PM
SENATOR KIEHL referred to the language in other sections of the
bill [that is existing law]. He asked whether this language in
other subsections should conform to the [language in Amendment
3].
MR. WHITT deferred to the Department of Law (DOL) to respond.
2:39:29 PM
KACI SCHROEDER, Assistant Attorney General, Central Office,
Criminal Division, Department of Law, Juneau, responded that
this language was copied from page 10, lines 13-15, which read:
(B) a conviction in this or another jurisdiction of an
offense having elements similar to those of a felony
defined as such under Alaska law at the time the
offense was committed is considered a prior felony
conviction;
MS. SCHROEDER said this language was inserted [in subparagraph D
on page 12, line 1] to restore this provision.
SENATOR KIEHL referred to language on page 1, lines 24-26.
(A) a conviction in this or another jurisdiction of an
offense having elements similar to those of a most
serious felony is considered a prior most serious
felony conviction;
He also referred to language on page 11, lines 17-19.
(A) a conviction in this or another jurisdiction of an
offense having elements similar to those of a most
serious felony is considered a prior most serious
felony conviction;
SENATOR KIEHL asked whether these provisions should conform to
the language in Amendment 3. He noted that this could be handled
at another time.
2:40:42 PM
SENATOR MICCICHE asked whether the language "having elements
similar to" is clear enough under law. He wondered what happens
if [another jurisdiction] charged a crime as a class A
misdemeanor and Alaska charges it as a class B misdemeanor, but
the crimes were essentially the same.
MS. SCHROEDER answered that it is clear. She explained that
there are numerous instances of case law surrounding how the
state interprets "elements similar to" and that it is an element
by element analysis. The Department of Law will often argue it
before the court, but the court has the ultimate decision. She
reiterated that it is clear.
2:41:24 PM
CHAIR HUGHES removed her objection. There being no further
objection, Amendment 3 was adopted.
2:41:35 PM
SENATOR REINBOLD moved to adopt Amendment 4, work order 31-
GS1873\U.17, Bruce/Radford, 3/15/19.
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 23, following line 10:
Insert a new bill section to read:
"* Sec. 33. The uncodified law of the State of
Alaska is amended by adding a new section to read:
TRANSITION: REGULATIONS. The Department of Law,
the attorney general, the Department of Public Safety,
and the commissioner of public safety may adopt
regulations necessary to implement the changes made by
secs. 28 and 29 of this Act. The regulations take
effect under AS 44.62 (Administrative Procedure Act),
but not before the effective date of the relevant
provision of this Act implemented by the regulation."
Renumber the following bill sections accordingly.
Page 23, following line 15:
Insert a new bill section to read:
"* Sec. 35. Sections 27 - 29 of this Act take
effect July 1, 2020."
Renumber the following bill section accordingly.
Page 23, line 16:
Delete "This"
Insert "Except as provided by sec. 35 of this
Act, this"
CHAIR HUGHES objected for discussion purposes.
MR. WHITT said that Amendment 4 was requested by the Department
of Law. He referred to pages 20-21 to Sections 27, 28, and 29.
The committee would like to gather data on prosecutions of
sexual crimes and reasons cases are not documented. The
Department of Law (DOL) and the Department of Public Safety will
work in conjunction to gather data. Amendment 4 would set the
effective date, as requested by the DOL, to July 1, 2020 to
allow it enough time to efficiently gather and report the data.
2:43:01 PM
SENATOR SHOWER asked to revert to Amendment 3. He asked whether
there is any conforming language in rest of the bill.
MS. SCHROEDER answered no.
SENATOR REINBOLD asked if this language simply creates an
extension to allow the departments to coordinate their efforts
and it would not affect regulations.
MS. SCHROEDER answered that the language in the committee
substitute (CS) for SB 35, Version U, is a new obligation for
the Department of Law. The DOL would need to develop a mechanism
to track the data and develop regulations. Amendment 4 would
give the department about a year to implement the change.
CHAIR HUGHES removed her objection. There being no further
objection, Amendment 4 was adopted.
2:44:19 PM
SENATOR REINBOLD moved to adopt Amendment 5, work order 31-
GS1873\U.4, Radford, 3/14/19.
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 6, line 19, following "section":
Insert "for a defendant convicted of a crime
involving a sex offense as defined in AS 12.63.100 or
a crime involving domestic violence as defined in
AS 18.66.990"
Page 6, lines 20 - 21:
Delete "by a preponderance of the evidence"
CHAIR HUGHES objected for discussion purposes.
2:44:39 PM
MR. WHITT explained Amendment 5, which was requested by Senator
Kiehl. He referred to page 6, line 19, which relates to
presumption of no contact orders. The language in Version U
includes the presumption of no contact orders for every single
crime in AS 12.55.015. However, the intent is that it would be
specific to AS 12.63.100, relating to sex offenses, and AS
18.66.990, which relates to crimes involving domestic violence.
Amendment 5 would specify no contact orders for those
provisions.
SENATOR REINBOLD asked for further clarification on the effect
of deleting "by a preponderance of the evidence.
2:45:34 PM
REGINA LARGENT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, answered that this was unnecessary
language, that the courts will use the lowest burden of proof
unless otherwise specified. This language was not requested and
was removed.
2:46:12 PM
CHAIR HUGHES removed her objection. There being no further
objection, Amendment 5 was adopted.
2:46:17 PM
SENATOR REINBOLD moved to adopt Amendment 6, work order 31-
GS1873\U.12, Radford, 3/14/19.
AMENDMENT 6
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 13, line 1, following "degree":
Insert "if the victim is at least six years
younger than the offender"
CHAIR HUGHES objected for discussion purposes.
MR. WHITT referred to page 13, line 1 to Section 19 of SB 35.
The definition [in AS 12.55.185] for "sexual felony" was amended
to add conforming language due to changes in sexual abuse of a
minor in the third degree. However, language was inadvertently
omitted that would read, "if the victim is at least six years
younger than the offender".
MS. LARGENT related her understanding that this language was
originally in the bill but was removed. The Department of Law
asked that the language be added.
2:47:29 PM
SENATOR REINBOLD asked whether the department thinks this is
well written.
MS. SCHROEDER nodded yes.
2:47:47 PM
CHAIR HUGHES indicated that Ms. Schroeder, seated in the
audience, had nodded affirmatively.
CHAIR HUGHES removed her objection, and after determining
Senator Shower had a question withdrew removing her objection.
2:47:58 PM
SENATOR SHOWER recalled the committee held a long discussion on
minors defined as younger than age 17. He asked for further
clarification that this change "lines up" with the issues
previously discussed.
MR. WHITT responded that an additional amendment will clarify
the language in Sections 7 and 12 of the bill related to minors.
2:49:01 PM
MS. LARGENT concurred that Mr. Whitt is correct that separate
amendments address those provisions. Further, the Department of
Law is working on other amendments to address it.
2:49:21 PM
SENATOR SHOWER remarked that the discussion last week was
confusing. He said that identifying that the sexual assault
language related to minors needed to be updated came up, but he
has not been able to identify all the sections in statute that
pertain to sexual assault. He wanted to be certain that this
language "matches up." He asked for clarification on how six
years was determined.
2:50:34 PM
MS. SCHROEDER explained that Amendment 6 is cleanup language.
She related that the underlying bill makes it a sexual felony
sentence to the higher presumptive sentence when there is a six-
year age difference between the offender and the victim for
sexual abuse of a minor in the third degree.
She referred to the definition of sexual abuse of a minor in the
third degree [AS 11.41.438(a):
(a) An offender commits the crime of sexual abuse of a
minor in the third degree if being 17 years of age or
older, the offender engages in sexual contact with a
person who is 13, 14, or 15 years of age and at least
four years younger than the offender.
She said that if the victim is at least six years younger than
the offender, the offender would be sentenced as a class C
felony. However, the bill would acknowledge that a six-year age
difference is more predatory, and the crime would be a sexual
felony sentenced to the higher presumptive ranges associated
with sex felonies. Amendment 6 would clarify that aspect in the
definition of a sexual felony.
2:51:51 PM
SENATOR REINBOLD said that the committee received the amendments
this morning. She asked for further clarification on whether the
"newer fix" is a change from the original bill or if it refers
to the committee substitute.
MS. LARGENT referred to the internal document, not posted to
BASIS, which consisted of staff notes. One column was titled,
"new or fix." She stated that "fix" was intended as a reminder
that the amendment was something not drafted as requested, or
the Legislative Legal Counsel, Legislative Legal Services,
Legislative Affairs Agency removed the language and Chair Hughes
requested that it be reinserted.
SENATOR REINBOLD asked for further clarification that Amendment
4 referred to one specific crime.
MS. SCHROEDER answered yes. She said that Amendment 4 would draw
the line at six years of an age difference. If the offender and
the victim were within six years of age, the offender would be
sentenced to a lower-level sentence. If the offender and victim
were six years apart or above, the offender would receive a
higher level of sentence. The crime in both instances would be
sexual abuse of a minor in the third degree, but two different
sentencing structures would be used, depending on the age
difference.
2:53:44 PM
SENATOR KIEHL asked for further clarification that the six-year
age difference would relate to sexual contact and not sexual
penetration, which would be more serious.
MS. SCHROEDER answered yes.
2:54:08 PM
CHAIR HUGHES removed her objection. There being no further
objection, Amendment 6 was adopted.
2:54:16 PM
SENATOR REINBOLD moved to adopt Amendment 7, work order 31-
GS1873\U.13, Radford, 3/14/19.
AMENDMENT 7
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 21, lines 12 - 19:
Delete all material and insert:
"(1) develop a tool to track felony sex
offenses reported to the Department of Public Safety
by geographic location; the tracking tool must include
a means to record the reason a reported offense was
not referred for prosecution or, if referred, the
reason the offense was not prosecuted and, if
applicable, the reason a sex offense charged as a
felony resulted in a conviction of an offense other
than a sex offense under a plea agreement;
(2) develop regulations and procedures to
implement the requirements established under (1) of
this subsection; and
(3) provide training for the implementation
of the regulations and procedures established under
(2) of this subsection in each state department as
necessary."
CHAIR HUGHES objected for discussion purposes.
2:54:47 PM
MR. WHITT said that Amendments 7, 8, and 9 coincide. He
explained that the language in Sections 28 and 29 of the CSSB
35, Version U, related to gathering more data on cases and
reasons sexual felony cases are prosecuted or not to develop a
tool to track offenses. He said the language in the CSSB 35,
Version U was not the language requested. He reviewed the
language in Amendment 7, paragraphs (1)-(3), which specifically
lists the desired data and directive to the pertinent
departments.
2:56:10 PM
SENATOR MICCICHE asked whether this would ask the Department of
Public Safety (DPS) to record [statistics] on defendants who are
found not guilty. He said if defendants are not prosecuted that
they are still presumed innocent until proven guilty. He asked
whether this would require tracking offenses that are not
prosecuted.
MR. WHITT responded that tracking the data would not include any
personal or proprietary information, but rather the number of
cases that were reported, but were not ultimately prosecuted.
Further, it would track cases that were reported but ultimately
dropped, as well as the number of cases that were pursued and
prosecuted. He characterized it as raw data not containing
personal information or data.
2:58:04 PM
SENATOR MICCICHE asked for further clarification on this
section.
MS. SCHROEDER responded that the department views Amendment 7 as
a query for the reasons why cases are not prosecuted. The
department currently attempts to track these reasons internally.
She concurred with Mr. Whitt that this would require the
department to report the data. For example, the department
declined this many sexual felonies for these reasons,
evidentiary reasons, witness not available, or other reasons the
cases were not pursued.
SENATOR MICCICHE asked whether this was in the original bill and
for further clarification on the goal of this section.
2:59:15 PM
MR. WHITT explained that Sections 8 and 9 of the committee
substitute (CS) SB 35, Version U, were not in the original
version of the bill. Amendments 7-9 add language originally
requested by Chair Hughes and Vice Chair Reinbold in Version U.
SENATOR REINBOLD recalled that 43 percent of misdemeanors are
dismissed. She said she was uncertain about the number of
felonies that are dismissed, but 63 percent of [sexual assaults]
are unreported nationwide. She said this is a "red flag" for the
public and the reason she thinks the amendment is a good idea.
SENATOR SHOWER said he understood the value of obtaining data
and to track it. He expressed concern to ensure that the record
reflects the legislative intent on the type of data. He would
like the record to reflect that only raw data would be
collected.
3:01:13 PM
CHAIR HUGHES asked the record to reflect that the privacy of
individuals will be protected and that this relates to raw data
for statistical purposes.
MS. SCHROEDER agreed that is how the the Department of Law
interprets the language in Amendment 7.
3:01:39 PM
SENATOR SHOWER asked the record to reflect that the legislature
wants the department to protect the privacy of individuals. He
said that the intent of Amendment 7 is to provide raw data only
and not any identifying data so the department can use it
appropriately.
SENATOR KIEHL agreed with the intent. He asked how granular the
DOL intends and the usefulness to future legislators. He
recalled the reports to the committee and his alarm at the
number of sex crimes that are not [prosecuted]. He wondered if
future legislators would interpret this to mean that victims do
not feel safe and to work on victim's services or police
training. He asked for further clarification on what types of
analysis legislators would be able to do with the collected
data.
3:02:55 PM
MS. SCHROEDER answered that the department views this as a new
area and she was unsure how granular, or the level of detail,
the department would obtain, but she offered to work with the
legislature to further define the type of information the
department should extract. She characterized it as a first step.
MR. WHITT referred to discussions in Chair Hughes's office. He
said that not knowing what can be done with the data is a moot
point. Once the legislature obtains the data and can analyze it,
it is possible the legislature can do something to improve the
numbers.
3:03:55 PM
CHAIR HUGHES said she appreciated the discussion.
3:04:10 PM
CHAIR HUGHES removed her objection. There being no further
objection, Amendment 7 was adopted.
3:04:15 PM
SENATOR REINBOLD moved to adopt Amendment 8, work order 31-
GS1873\U.14, Radford, 3/14/19.
AMENDMENT 8
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 35(JUD), Draft Version "U"
Page 21, lines 28 - 29:
Delete all material and insert:
"(3) the number of sex offenses referred for
prosecution that were charged as a felony and, under a
plea agreement, resulted in a conviction for a crime
other than a sex offense."
CHAIR HUGHES objected for discussion purposes.
MR. WHITT explained that Amendment 8 would add previously
requested language. He referred to page 21, lines 28-29, [of the
proposed committee substitute (CS) for SB 35 (JUD), Version U]
and read the language in Amendment 8. He explained that this is
clarifying language that also would add a bit more data.
3:05:01 PM
CHAIR HUGHES removed her objection, and after determining
Senator Micciche had a question, withdrew removing her
objection.
3:05:16 PM
SENATOR MICCICHE said this language would only change paragraph
(3). He read paragraphs (1)-(3).
(1)the number of felony sex offenses reported to the
Department of Public Safety that were not referred for
prosecution;
(2) the number of felony sex offenses referred for
prosecution that were not prosecuted; and
(3) the number of felony sex offenses.
He asked whether a fourth paragraph should be added since
paragraph 3 of Amendment 8 only captures those cases under a
plea agreement.
3:06:18 PM
MS. SCHROEDER commented that Senator Micciche makes a good
point. The proposed language would exclude cases that were taken
to trial, and the defendant was acquitted on all sex offenses,
was convicted on a non-sex offense.
3:06:39 PM
SENATOR MICCICHE moved to adopt Conceptual Amendment 1 to
Amendment 8, beginning on page 21, line 30, which would add
paragraph (4).
MR. WHITT interjected by relating that the Department of Law has
pointed out the effect of Amendment 8 could be achieved by
deleting the language "under a plea agreement."
3:07:27 PM
At-ease.
3:09:12 PM
CHAIR HUGHES reconvened the meeting.
3:09:12 PM
SENATOR MICCICHE restated his motion to adopt Conceptual
Amendment 1 to Amendment 8. On page 21, line 30, [of the CSSB
35, Version U] would renumber paragraph (3) of Amendment 8 to
paragraph (4) and insert the language, "the number of sex
offenses referred for prosecution that were charged as a felony
and, under a plea agreement, resulted in a conviction for a
crime other than a sex offense." This would essentially separate
the data for sex offenses under a plea agreement.
CHAIR HUGHES objected for discussion purposes.
SENATOR SHOWER asked whether this language should be broken down
further or if the [Conceptual Amendment 1 to Amendment 8] will
capture what is needed since the other categories were
mentioned.
MR. WHITT offered to read the language, as amended [by the
Conceptual Amendment to] Amendment 8. He directed attention to
page 21. Lines 28 and 29 would remain in the CS as written, but
a new paragraph (4) would be added. Amendment 8, as amended by
Conceptual Amendment 1, would read:
(3) the number of felony sex offenses that resulted in a
conviction for a crime other than a sex offense; and
(4) the number of sex offenses referred for prosecution
that were charged as a felony and, under a plea agreement,
resulted in a conviction for a crime other than a sex
offense.
3:11:21 PM
SENATOR MICCICHE explained that a number of reasons exist for
prosecutors to decide not to charge a person of a sex offense,
but the offender could be convicted of a crime other than a sex
offense. However, Alaska ranks number one in the country for
sexual assaults. He stressed the importance of obtaining data to
help the legislature develop laws to reduce these numbers. A
separate category for plea agreements could help [the state] to
better understand the effect that plea agreements have on the
lack of convictions and how to identify and improve the number
of convictions. The importance of this has been highlighted by
the recent high-profile case that brought this to light, he
said.
CHAIR HUGHES said she appreciated this since it may help close a
loophole.
SENATOR SHOWER said his question was not answered. He asked
whether the two or three other categories previously mentioned
should also be added or if Conceptual Amendment 1 to Amendment 8
will capture the needed data. He was unsure if it was necessary
to break the categories out further for the fidelity of the
data.
MS. SCHROEDER asked whether he was referring to the other
categories in Section 29.
SENATOR SHOWER answered no. He recalled that in a previous
discussion the committee rattled off about four other
categories. However, he did not specifically recall the
categories.
MS. SCHROEDER offered her belief that the CSSB 35, Version U,
with Conceptual Amendment [1 to Amendment 8], would capture
everything necessary, including trial and non-trial plea
agreements.
SENATOR SHOWER said he wanted to be sure it captures the
necessary data.
3:13:31 PM
CHAIR HUGHES removed her objection. There being no further
objection, Conceptual Amendment 1 to Amendment 8 was adopted.
CHAIR HUGHES said that brings Amendment 8, as amended, before
the committee. There being no objection, Amendment 8, as
amended, was adopted.
3:13:56 PM
CHAIR HUGHES moved to adopt Amendment 9, work order 31-
GS1873\U.19, Radford, 3/15/19.
AMENDMENT 9
OFFERED IN THE SENATE BY SENATOR REINBOLD
TO: CSSB 35(JUD), Draft Version "U"
Page 13, line 11, following "resources":
Insert ", including the Council on Domestic
Violence and Sexual Assault, the Alaska Network on
Domestic Violence and Sexual Assault, the Office of
Victims' Rights, and the Violent Crimes Compensation
Board"
CHAIR HUGHES objected for discussion purposes.
3:14:24 PM
SENATOR REINBOLD explained that Amendment 9 would direct the
[Department of Corrections] to include the Council on Domestic
Violence and Sexual Assault, the Alaska Network on Domestic
violence and Sexual Assault, the Office of Victims' Rights, and
the Violent Crimes Compensation Board to provide clarity and be
more victim-focused in the bill.
3:14:42 PM
CHAIR HUGHES removed her objection. There being no further
objection. Amendment 9 was adopted.
3:15:12 PM
SENATOR REINBOLD moved to adopt Amendment 10, work order 31-
GS1873\U.2, Radford, 3/14/19.
AMENDMENT 10
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 35(JUD), Draft Version "U"
Page 2, line 2:
Delete "AND 24"
Insert "22, AND 25"
Page 2, line 29:
Delete "sec. 24"
Insert "sec. 25"
Page 3, line 3:
Delete "sec. 24"
Insert "sec. 25"
Page 3, line 7:
Delete "sec. 24"
Insert "sec. 25"
Page 13, following line 27:
Insert a new bill section to read:
"* Sec. 22. AS 12.63.010 is amended by adding a new
subsection to read:
(g) Notwithstanding the requirement to register
under this section, a sex offender or child kidnapper,
as that term is defined in AS 12.63.100(6)(B), may
petition the department for removal from the central
registry of sex offenders and child kidnappers and to
be exempt from the registration requirements under
this section. The department shall grant the petition
if the petitioner submits proof acceptable to the
department that the facts underlying the conviction in
another jurisdiction do not constitute a sex offense
or child kidnapping in this state. When the petition
is granted, the department shall remove from the
central registry information about the sex offender or
child kidnapper as provided in AS 18.65.087(d)(4)."
Renumber the following bill sections accordingly.
Page 15, line 14, following "section":
Insert "and of the procedure to petition for
removal from the central registry"
Page 15, line 23, following "occurred":
Insert ";
(3) procedures to remove a sex offender or
child kidnapper, as that term is defined in
AS 12.63.100(6)(B), from the central registry of sex
offenders and child kidnappers"
Page 17, following line 28:
Insert new bill sections to read:
"* Sec. 26. AS 18.65.087(d) is amended to read:
(d) The Department of Public Safety
(1) shall adopt regulations to
(A) allow a sex offender or child kidnapper
to review sex offender or child kidnapper registration
information that refers to that sex offender or child
kidnapper, and if the sex offender or child kidnapper
believes the information is inaccurate or incomplete,
to request the department to correct the information;
if the department finds the information is inaccurate
or incomplete, the department shall correct or
supplement the information;
(B) ensure the appropriate circulation to
law enforcement agencies of information contained in
the central registry;
(C) ensure the anonymity of members of the
public who request information under this section;
(2) shall provide to the Department of
Corrections and municipal police departments the forms
and directions necessary to allow sex offenders and
child kidnappers to comply with AS 12.63.010;
(3) may adopt regulations to establish fees
to be charged for registration under AS 12.63.010 and
for information requests; the fee for registration
shall be based upon the actual costs of performing the
registration and maintaining the central registry but
may not be set at a level whereby registration is
discouraged; the fee for an information request may
not be greater than $10;
(4) shall remove from the central registry
of sex offenders and child kidnappers under this
section information about a sex offender or child
kidnapper
(A) required to register under
AS 12.63.020(a)(2) at the end of the sex offender's or
child kidnapper's duty to register if the offender or
kidnapper has not been convicted of another sex
offense or child kidnapping and the offender or
kidnapper has supplied proof of unconditional
discharge acceptable to the department;
(B) who has successfully petitioned the
Department of Public Safety to be removed from the
central registry of sex offenders and child kidnappers
under AS 12.63.010(g) [IN THIS PARAGRAPH, "SEX
OFFENSE" AND "CHILD KIDNAPPING" HAVE THE MEANINGS
GIVEN IN AS 12.63.100].
* Sec. 27. AS 18.65.087 is amended by adding a new
subsection to read:
(j) In this section, "sex offense" and "child
kidnapping" have the meanings given in AS 12.63.100."
Renumber the following bill sections accordingly.
Page 23, line 5:
Delete "sec. 22"
Insert "sec. 23"
Page 23, line 6:
Delete "sec. 23"
Insert "sec. 24"
Page 23, line 7:
Delete "sec. 24"
Insert "sec. 25"
Page 23, line 8:
Delete "sec. 25"
Insert "sec. 28"
Page 23, line 9:
Delete "sec. 26"
Insert "sec. 29"
Page 23, following line 10:
Insert a new subsection to read:
"(d) AS 12.63.010(g), enacted by sec. 22 of this
Act, applies to the duty to register as a sex offender
for offenses committed before, on, or after the
effective date of sec. 22 of this Act."
CHAIR HUGHES objected for the purpose of discussion. She
indicated that Amendment 10 was Senator Kiehl's amendment. She
asked him to speak to Amendment 10.
3:15:22 PM
SENATOR KIEHL explained that Amendment 10 is designed to address
the issue where sex offenders convicted in other jurisdictions
are required to register in Alaska, but the crime they were
convicted of is not considered a registerable sex offense in
Alaska. If the person can demonstrate to the Department of
Public Safety that the crime that the person was convicted of in
another state is not a crime in Alaska, the department can
remove the individual's name off the registry. He further
explained the process, such that the individual would need to
petition the department and provide proof that is acceptable to
the department. The state would maintain its constitutional duty
to write Alaska's laws, but still capture everyone who has been
convicted of crimes that are considered sex crimes in Alaska.
3:16:39 PM
CHAIR HUGHES expressed concern that the full faith and credit
clause in the U.S. Constitution requires states to honor the
judgments of other states. She asked whether Alaska would honor
the judgement or conviction in another state for a sex crime.
For instance, Alaska honors the domestic violence protective
orders from other states even if the orders do not align
identically with Alaska law.
3:17:22 PM
MS. LARGENT explained that the full faith and credit provision
in the U.S. Constitution provides a foundational way to view
this proposal. It really is not the distinction of whether
Alaska laws match other states, but if Alaska will give full
faith and credit for a conviction, a judgment, of a sex crime in
another state.
She provided an example, when Francis Scott Key argued that a
judgment between the states should be brought in as evidence.
The U.S. Supreme Court disagreed. Justice [Joseph] Story said
this interpretation would render the cause "utterly unimportant
and illusory." The court went on to hold that a judgment that is
rendered conclusive must be held conclusive elsewhere. She said
that subsequent case law has indicated that is not an
unqualified command. The courts have held that a jurisdiction
might go back and inquire whether a court had actual
jurisdiction. If not, it could raise due process issues. The
court goes back to see if new evidence contradicts that
judgment, which is "reaching back into the judgment." The
specific language has been that states are not required to
enforce a law from another state that is obnoxious to its public
policy. For example, if enforcing a sex crime judgment from
another state would be obnoxious to Alaska's public policy,
there is room for [argument], but unless that bar is met, under
the U.S. Constitution's full faith and credit provisions, Alaska
is under somewhat of a directive to give credit to those
judgments.
3:20:35 PM
JOHN SKIDMORE, Division Director, Criminal Division, Central
Office, Department of Law, Anchorage, said the issue with
Amendment 10 is that it would gut the underlying concept. Alaska
suffers from one of the worst sex offense rates in the country.
The public and the administration were concerned when Alaska's
statutes were interpreted during a case to mean that individuals
who moved to Alaska but were convicted of an offense that
required them to register as sex offenders in other states could
move to Alaska and not have to register as sex offenders.
He said that what upset people were examples of people who
committed offenses in other states who moved to Alaska and
committed sex offenses in Alaska. The intent behind [SB 35] is
to eliminate the incentive for individuals to seek out Alaska to
avoid sex offender registration requirements. The state may wish
to review and crimes in other states that require sex offender
registration but are not crimes in Alaska and consider if that
conduct should be criminalized. The goal is to avoid encouraging
sex offenders to come to Alaska to avoid sex offender registry.
He characterized it as hanging a sign over Alaska's door saying,
"Sex offenders welcome."
MR. SKIDMORE said that Amendment 10 is still stricter than
current law. However, it would require substantial effort by the
Department of Public Safety to compare Alaska's law to other
states' laws to determine the underlying conduct. One thing
pointed out by the New Mexico Supreme Court, which is cited in
the Doe case, is that if you follow this approach, it relies on
the conduct for which someone was convicted. Sometimes it is
very clear, but other times is not as clear. For instance, the
New Mexico court considered whether a person convicted of an
offense who was required to register, had been convicted using a
plea agreement without an allocution, meaning the defendant did
not stand up and recite the facts. In those instances, the
courts are left to compare the statutes but not the conduct
itself. The original bill was more encompassing since it said if
an offender is required to register in another state, the
offender must also register in Alaska. The DOL and
administration oppose Amendment 10 because it would gut the
concept, he said.
3:25:06 PM
SENATOR MICCICHE said that he cannot support Amendment 10. He
reminded members that the committee worked on [SB 12] to close
the Justin Schneider loophole, because his crimes were not
considered sexual crimes. The legislature recognized these
actions should have been crimes. However, if someone had come to
Alaska who had recently strangled someone to the point of
unconsciousness [and done the things Justin Schneider did], he
would not be required to register in Alaska. He acknowledged
that Alaska has gaps, but some other states have done a very
good job. He said it does not work for him and he did not think
Amendment 10 works for Alaskans.
3:26:02 PM
SENATOR KIEHL said that he was not concerned with the U.S.
Constitution's full faith and credit issue since there is not
any opportunity to retry the facts or the conviction. This
simply looks at whether the facts would be registerable sex
crimes in Alaska. The legislature would not ask the Department
of Public Safety to judge the credibility of a witness. He
maintained his belief that it is not a full faith and credit
issue, but it relates to the Alaska Constitution. In the State
of Missouri, a person must register as a sex offender if he/she
is a teacher and has sex with a student, even if the student is
18 years old. Alaska has not made that a sex crime. In Michigan,
consensual sex between people within the third degree of kindred
is a registerable sex offense, but it is not in Alaska, which is
a conscious choice, and not a loophole in Alaska. Ultimately, it
is important to look at what actions constitute a registerable
sex crime in Alaska. He said that troopers look at the elements
of the offense all day long. And when they have a question, they
call the lawyer for advice. He offered his belief that
administering this is straightforward. The presumption is that
sex offenders must register and the burden of proof that it does
not constitute a sex crime in Alaska is on the offender. He
characterized it as a minor adjustment for the rare cases in
which Alaska has decided the conduct is not a crime.
3:28:58 PM
MR. SKIDMORE said that some of the examples do not track with
Alaska's law. He said that the Michigan law talks about incest
in the third degree, which is criminalized in Alaska. He offered
his belief that there are some factual errors. Further, he fails
to identify where in the Constitution of the State of Alaska it
shows some reason that someone should not have to register as a
sex offender. He said he goes back to the government's
compelling state interest to not encourage sex offenders to move
to Alaska to avoid having to register as sex offenders. He
acknowledged that the current law focuses only on elements and
that his amendment would have the department look at facts.
However, he was also trying to highlight that looking at facts
and determining what are the facts that resulted in the
conviction is not as easy as one might think without an
allocution from the defendant. Absent the allocution, the state
is left only with the elements, which is the problem the state
faces today. The issue becomes that Amendment 10 is not
achieving that underlying goal or principle of discouraging
people from moving to Alaska to avoid sex offender registry when
they have already committed sex offenses. Those are the reasons
the department is opposed to Amendment 10.
3:31:04 PM
CHAIR HUGHES offered her belief that Amendment 10 would put the
Department of Public Safety (DPS) in the position of making a
judgment in violation of the full faith and credit clause of the
U.S. Constitution by asking the department whether it will honor
judgments from other states and that concerns her. She said the
compelling interest to eliminate the problem of Alaska being a
magnet to sex offenders trumps everything. She said she will not
be supporting Amendment 10.
SENATOR KIEHL said the question of a plea agreement without
allocution, arguably leaves the offender in the unenviable
position of not being able to prove the facts do not match and
so he/she would have to register. That is how Amendment 10 is
written, he said. He said he appreciated Mr. Skidmore's talent
at hyperbole, but the State of Michigan's criminal sexual
conduct in the fourth degree is not the crime of incest.
3:32:27 PM
CHAIR HUGHES maintained her objection.
3:32:34 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Amendment 10 and Senators Reinbold, Micciche, Shower, and Hughes
voted against it. Therefore, Amendment 10 failed by a 1:4 vote.
CHAIR REINBOLD moved to adopt Amendment 11.
CHAIR HUGHES objected for discussion purposes.
3:33:02 PM
CHAIR HUGHES asked whether the committee could continue since
the allotted committee time was up.
3:33:20 PM
At-ease.
CHAIR HUGHES reconvened the meeting. She said that she would
hold off on the remaining amendments.
[The committee treated Amendment 11 as not offered at this
time.]
3:34:12 PM
MR. WHITT said he would review the action the committee took on
Amendment 8.
[SB 35 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 89 - Bill - 3 13 19.PDF |
SJUD 3/18/2019 1:30:00 PM SJUD 3/20/2019 1:30:00 PM |
SB 89 |
| SB 89 - Sponsor Statement - 3 13 19.pdf |
SJUD 3/18/2019 1:30:00 PM SJUD 3/20/2019 1:30:00 PM |
SB 89 |
| SB 89 - PowerPoint Presentation - 3 13 19.pdf |
SJUD 3/18/2019 1:30:00 PM |
SB 89 |
| SB 89 - Sectional Analysis - 3 13 19.pdf |
SJUD 3/18/2019 1:30:00 PM SJUD 3/20/2019 1:30:00 PM |
SB 89 |
| SB 89 - Supporting Document - AO 19 01 - 3 13 19.pdf |
SJUD 3/18/2019 1:30:00 PM SJUD 3/20/2019 1:30:00 PM |
SB 89 |
| CSSB35 Version U.pdf |
SJUD 3/18/2019 1:30:00 PM |
SB 35 |
| CSSB35 Explanation of Changes from Version A to U.pdf |
SJUD 3/18/2019 1:30:00 PM |
SB 35 |