Legislature(2005 - 2006)HOUSE FINANCE 519

03/07/2006 01:30 PM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
<Bill Hearing Rescheduled to 9:00 mtg.>
Moved CSHB 408(FIN) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
<Bill Hearing Rescheduled from 9:00 mtg>
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                                                                   
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)                                                                                                      
          (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                                                                   
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,                                                                      
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                                                                   
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                                                                   
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                                                                   
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,                                                                   
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                                                                   
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                                                                   
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,                                                                   
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                                                                   
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                                                                   
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                                                                   
2:40:18 PM                                                                                                                    

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