Legislature(2005 - 2006)HOUSE FINANCE 519
03/07/2006 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB218 | |
| HB408 | |
| HB485 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 324 | TELECONFERENCED | |
| += | HB 408 | TELECONFERENCED | |
| += | SB 218 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 485 | TELECONFERENCED | |
CS FOR SENATE BILL NO. 218(FIN)
"An Act relating to sex offenders and child kidnappers;
relating to reporting of sex offenders and child
kidnappers; relating to periodic polygraph examinations
for sex offenders released on probation or parole;
relating to sexual abuse of a minor; relating to the
definitions of 'aggravated sex offense' and 'child
kidnapping'; relating to penalties for failure to
report child abuse or neglect; relating to sentencing
for sex offenders and habitual criminals; and providing
for an effective date."
SENATOR CON BUNDE, SPONSOR, thanked the Committee and
pointed out examples from weekend news articles from
Anchorage recounting various sexual crimes, especially
noting an incident when an perpetrator committed an assault
hours after being release from prison. Her concluded that
this was an indication of the need for longer prison
sentences.
1:48:17 PM
Co-Chair Chenault MOVED to ADOPT Work Draft #24-LS1307\U,
Luckhaupt, 3/6/06, as the version of the bill before the
Committee. There being NO OBJECTION, the motion was ADOPTED.
Senator Bunde referred to SUSAN PARKS, DEPUTY ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW to address the
bill. Ms. Parks highlighted changes in the Committee
Substitute. She noted changes in Section 1 and 2, referred
to as the "peer group amendment". She stated that there was
a concern about whether conduct between teenage peers hould
be considered criminal. She explained that the changes
specified the need for one of the teenagers to be 17 years
of age or older, and for there to be four years' difference
in ages to constitute a criminal act.
1:50:58 PM
Ms. Parks also noted another major change to the bill
contained in Section 8, page 7. She explained that the
original bill mandated that there be probation for sex
offenses. She pointed out that probation only carried
weight if it pertained to suspended time, which enabled
violators of probation to be punished. She stated that
Section 8 required a certain amount of suspended time so
that mandatory probation carried significance. She pointed
out that there were amendments to the ranges that had been
increased by 5 years to allow for required suspended time.
1:52:00 PM
Ms. Parks also pointed out that on Page 6, line 11, the
range of sentence was changed from "one to twelve years" to
"two to twelve years".
Representative Stoltze referred to a sentencing proceeding
that reminded him of the truth in sentencing provisions, and
asked about the actual provisions.
1:53:11 PM
Ms. Parks emphasized that a prior sexual offense would
guarantee a severe sentence for a subsequent offense,
whereas a first time offender might receive a lighter
sentence, such as four years, with the possibility of
discretionary parole.
Representative Stoltze noted that the offender to which he
referenced in Wasilla had received a sentence of 99 years,
being eligible for parole in 23 years.
1:54:20 PM
Co-Chair Meyer MOVED to ADOPT Amendment #1.
Page 3, lines 18-21
Delete subsection (b)
Insert:
(b) This statute does not apply if any of the
circumstances or conduct establishing the offense
relate to an attorney-client relationship with the sex
offender or child kidnapper.
The defendant may file notice pre-trial that subsection
(b) applies. The notice merely requires that a good
faith basis for its filing exist. The defendant may
request a pre-trial ruling by the Judge, or may request
a jury determination, or both. The State has the
burden to prove beyond a reasonable doubt that sub-
section (b) does not apply.
Representative Stoltze OBJECTED.
Co-Chair Meyer referred to Ms. Parks for discussion of the
amendment. Ms. Parks explained that the amendment pertained
to the "failure to report" provisions contained in Section 3
of the bill. She explained that the Public Defender's
office raised concerns that the bill created an ethical
dilemma for a defense attorney representing a client who
should have been registered and was not registered. She
stated that the language had been developed in cooperation
with the Public Defender's office in order to mitigate the
ethical issue.
QUINLAN STEINER, DIRECTOR, OFFICE OF PUBLIC DEFENDER
testified online, stating that he had worked with Ms. Parks
on the language to remedy the ethical dilemma.
Representative Stolze WITHDREW his OBJECTION.
There being no further objection, the Amendment was ADOPTED.
Representative Kerttula MOVED to WITHDRAW Amendments #2 and
#3.
Representative Kerttula then MOVED to ADOPT Amendment #4,
24-LS1307\U.2, Luckhaupt, 3/7/06.
1:57:38 PM
Representative Hawker OBJECTED.
Representative Kerttula explained that her amendments did
not indicate a lack of support or respect for the sponsors,
but rather pertained to the complicated nature of the
legislation. She thanked the sponsors for changing the
crime of omission and for extending statutory rape.
Representative Kerttula specified that Amendment #4
pertained to sentencing for Class A and Class B felonies.
She conceded that these were serious crimes that should
carry serious penalties, however pointed out that if the
sentences were increased to this degree it would generate
commensurate costs. She proposed bringing the sentences
within a range that allowed for a more gradual impact.
Senator Bunde agreed that the bill would generate a cost.
He discussed the merits of the costs as compared to the
quality of safety in society. He also pointed out that
large sentences, as well as incarcerating offenders for a
long and costly period, also served as a deterrent. He
concluded that the societal cost therefore balanced the
financial costs.
2:01:19 PM
REPRESENTATIVE NEUMAN (Co-Sponsor) emphasized that,
particularly for victims age 13 or younger, the cost of
rehabilitation lasted a lifetime. He referred to
discussions on the cost of such rehabilitation, and
estimated it at $45,000 per victim. He also noted that
there were 518 reported victims, resenting only 16 percent
of sexual crimes committed that were actually reported. He
also reminded the Committee about the rate of recidivism due
to the inability to rehabilitate offenders. He also
recalled discussions with Commissioner Tandeske, confirming
that these offenders also committed other types of crimes.
He concluded that all of these costs should be considered in
the entire picture.
2:03:47 PM
SENATOR GUESS (CO-SPONSOR) spoke in opposition to the
amendment, but welcomed the discussion of the issues. She
referred to previously passed bills (Sen. French), and
testimony by administration stating that the bill did not
pertain as much to sentences as to compliance with a court
case. She emphasized that the bill sponsors did not
contemplate appropriate sentence ranges. She noted that the
Legislature discussed such policy issues at length. She
pointed out that Senator French's bill did not address first
time offenders or the sentencing structure.
2:05:34 PM
Senator Guess also referred to the third section of the
amendment that reduced probation requirements. She pointed
out that probation stipulations allowed for the best use of
the polygraph in helping prevent offenders from recurrence.
She stated her opinion that it was wrong to reduce sentences
and probation on a policy basis. She agreed with
Representative Neuman that the societal cost of sexual
crimes was significant, if somewhat unknown, and concluded
that it outweighed any other costs.
Representative Hawker MAINTINED his OBJECTION.
Representative Kerttula concurred with the Sponsors'
addition of probation to the Committee Substitute, and
explained that her amendment was an effort to bring the
sentencing down into a somewhat reduced range with
commensurate probation periods. She stated that this was
the most difficult of her proposed amendments.
Responding to a question by Co-Chair Chenault, Senator Guess
clarified an earlier observation that sexual offenders
responded well to the structured environment of
incarceration. She referred to Senator French's bill, and a
supporting document confirming that sexual offenders often
received "good time", which under the current amendment
would be eight years.
Representative Bunde noted that sex offenders often sought
vulnerable victims.
2:09:19 PM
A roll call vote was taken on the motion.
IN FAVOR: Moses, Kertulla
OPPOSED: Stoltze, Hawker, Holm, Joule, Kelly, Meyer,
Chenault
The Amendment FAILED on a vote of 7 to 2.
Representative Kerttula MOVED to ADOPT Amendment #5, 24-
LS1307\U.1, Luckhaupt, 3/7/06.
Representative Stoltze OBJECTED.
Representative Kerttula explained that the amendment
pertained to Class C Felonies. While she conceded that
these offenses could indicate serious behavior, she noted
that it could also include less serious behavior such as
touching. She stated her belief that the maximum sentences
were often disproportionate to the less serious crimes. She
also noted that the Amendment contained a commensurate
reduction of probationary periods.
2:11:02 PM
Representative Stoltze referred to comments made in the
Senate Judiciary Committee regarding the issue of incidental
touch, and asked how often instances of this nature were
prosecuted.
SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW referred to case examples and stated that
in 2004, of over 100 case that were charged with touching
offenses, only 40 times did they receive the most serious
offense, and usually when accompanied by a more serious
charge. She noted a case in Anchorage when a young girl had
received touches over an eight year period, that eventually
developed into more serious conduct, and concluded that this
was often the case. She also noted that touching offenses
were often prosecuted when offenders had been interrupted or
fought off. She noted several cases of touching offenses in
various serious circumstances and concluded that these could
be potentially serious offenses.
2:15:16 PM
Representative Stoltze concluded that the touching
offenses in a situation of an accidental or "barroom grope"
were rarely prosecuted. Ms. Parks responded that those
types of cases were not usually charged.
Representative Neuman referred to the first section of the
amendment, deleting the numbers "99" and "20", and pointed
out that the bill language actually stated "not more than
99/20". He also referred to lines 22 to 23 of the amendment
proposing to delete "99" and insert "9 to 20", and pointed
out that these sentences pertained to a third felony
conviction.
2:17:10 PM
Responding to a comment by Co-Chair Meyer, Senator Guess
stated that the Sponsors were opposed to the amendment.
Senator Guess noted that at the third degree level, a wide
variety of conducts were included. She noted a recent study
about the problem of rape in prisons, as well as about
incest. She concluded that there were serious crimes
included in this range. She explained that a wider range of
sentences at this level of offense was to give courts
flexibility.
2:18:44 PM
Representative Kerttula expressed that while she
appreciated the benefit of flexibility, she maintained
concern over the large range of offenses in the bill. She
proposed breaking the bill apart, and separating the lesser
offenses from much more serious behaviors. She also
commented that, along with flexibility, an amount of
discretion remained to the courts. She noted that low level
thefts were also included within the same level and
therefore subject to the same sentencing structure.
A roll call vote was taken on the motion.
IN FAVOR: Moses, Kertulla
OPPOSED: Stoltze, Hawker, Holm, Joule, Kelly, Chenault,
Meyer
The motion FAILED on a vote of 2 to 7.
Representative Kerttula MOVED to ADOPT Amendment #6.
Representative Hawker OBJECTED.
Representative Kerttula commented that in her experience as
a defense attorney she had dealt with offenders who were
well aware of sentencing ranges. She stated her concern that
such knowledge of sentences might induce an offender to
murder a victim of a sexual assault in an attempt to obtain
a lighter sentence.
Representative Hawker strongly maintained his objection,
expressing his concern for victims of sexual assaults who
serve a "life sentence" of suffering.
2:23:51 PM
Representative Neuman stressed that the majority of crimes
referred to by the amendments were committed against persons
under the age of thirteen. He also noted that the
perpetrators often carried firearms, thereby justifying the
higher sentences.
Representative Bunde pointed out that in any of the
sentences, a single mitigating circumstance could reduce the
sentence by as much as half. He noted that courts and
juries could exercise a certain amount of discretion in
these circumstances. He mentioned that other states had
substantially increased penalties for sexual predators. He
also pointed out that offenders often moved from state to
state, and was concerned that Alaska could become a prime
destination for sexual predators if our sentences were
lower.
Representative Kerttula clarified that her amendments did
not address repeat offenses, and only pertained to the lower
end of the offenses. She proposed that the lower end of the
sentence should be lower than that for murder in the second
degree.
Representative Bunde stated that research showed that by the
time a perpetrator was arrested and tried they often had
committed a number of unreported offenses.
A roll call vote was taken on the motion.
IN FAVOR: Kertulla
OPPOSED: Hawker, Holm, Joule, Kelly, Moses, Stoltze, Meyer,
Chenault
The motion FAILED on a vote of 1 to 8.
2:27:26 PM
Representative Bunde departed the meeting and stated that he
was opposed to any amendments.
Representative Kerttula MOVED to ADOPT Amendment #7 (24-
LS1307\U.4, Luckhaupt, 3/7/06).
Representative Hawker OBJECTED.
Representative Kerttula explained that the amendment dealt
with the failure to report sexual offenders or child
kidnappers. She noted that this section of the bill had
been amended to address ethical considerations for defense
attorneys.
2:29:08 PM
Representative Kerttula suggested that the standard should
be one of "knowingly" disregarding requirements rather than
"recklessly". She noted that in an earlier discussion Ms.
Parks had referred to other legislation that employs such
duel standards. Representative Kerttula proposed that the
current standards in the bill would make it confusing and
more difficult to prosecute.
Senator Guess stated that she was opposed to the amendment,
and confirmed their belief that the duel standards would not
cause confusion.
2:30:25 PM
Ms. Parks stated her belief that changing the mental state
to "recklessly" would make it more difficult to prosecute
the cases. She noted that certain offenses contain both a
"reckless" and "knowing" terminology. She pointed out that
"recklessly" was a difficult standard to meet, since it
requires that the offender is aware of and consciously
disregards a substantial risk, constituting a gross
deviation from a reasonable standard of conduct. She
expressed concern that those who wish to remain ignorant of
circumstantial evidence can simply claim to "not know",
whereas it can be proven that a person acted in reckless
disregard of the evidence.
2:32:15 PM
Representative Stoltze asked how it would affect a family
situation. Ms. Parks confirmed that the concern would be
that individuals would choose not to confirm suspicions.
2:32:45 PM
Representative Hawker observed that use of the "reckless"
standard had been adequately defended. He questioned,
however, the double standard "and knowlingly".
Representative Hawker asked whether, if an individual was
unaware of location of a perpetrator, their knowing could be
proven.
2:34:02 PM
Representative Neuman stated his opinion that the standards
were a policy decision. He questioned whether if an
individual knew of incest in a family, or a sexual molester,
and purposefully did not bring these facts forward, or even
witnessed an act while under the influence of a substance,
they would bear some measure of guilt. He observed that
the victims should be given first consideration, along with
our responsibility to society. He suggested that there
should be a greater aptitude toward societal responsibility.
Representative Hawker commented that in the construction of
statute, they were obligated to protect the innocent, as
well as provide a vehicle to prosecute the guilty. He
expressed concern that with the current bill, the statute
might prosecute the innocent.
2:36:50 PM
Senator Guess acknowledged Representative Hawker's
observation as valid, and conceded that language might be
changed to protect an individual who failed to report the
location of a sex offender due to their lack of knowledge.
2:37:58 PM
Representative Hawker asked if it was the chairman's
intention to report the bill out of Committee, and suggested
that the language could be remedied during discussion of
other amendments.
Co-Chair Meyer recommended that the amendment be withdrawn.
Representative Kerttula WITHDREW Amendment #7.
Co-Chair Meyer stated that the bill would be HELD. He
requested that updated fiscal notes be prepared for the next
hearing to take into account any bill changes.
2:39:08 PM
Representative Kerttula requested that the remainder of her
amendments (#8-10) be withdrawn in order for further
consideration before the next hearing.
2:39:38 PM
CS SB 218 (FIN) was HELD in Committee for further
consideration.
2:40:18 PM
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