Legislature(1997 - 1998)
02/04/1998 01:08 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 252 - REGISTRATION OF SEX & CHILD OFFENDERS [Also contains some testimony in support of HB 360, following log number 0847.] Number 0645 CHAIRMAN GREEN announced the next item of business, HB 252, "An Act relating to criminal records; relating to notice about and registration of sex offenders and child kidnappers; and amending Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure." Number 0654 REPRESENTATIVE JOE RYAN, sponsor, came forward to present the bill, specifying that he represents District 21. He advised members that considerable work had been done since the hearing in the interim, and there is a new proposed committee substitute. REPRESENTATIVE RYAN read from the sponsor statement, saying the bill is offered to intensify sex offender and child kidnapper registration statutes and the registration process in order to better protect our citizens from criminals. Numerous citizens will be protected, including vulnerable adults and children. The intent is to comply with recent changes to the law, including the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Wetterling Act"), and to remain eligible for $200,000 in funds granted to states that comply with this Act. REPRESENTATIVE RYAN advised members that under the bill, failure to register as a sex offender or child kidnapper, or to properly register, results in a class C felony, which is an increase from a misdemeanor so as to induce persons to register and to do so properly. By reducing reporting times, HB 252 reduces the time that an offender is unregistered and unsupervised, and it reduces the time that a sex offender or child kidnapper has to report a change of address. It also provides for annual or quarterly verification of addresses of sex offenders or child kidnappers. REPRESENTATIVE RYAN said that furthermore, HB 252 adjusts the length of time a sex offender or child kidnapper must register to meet the requirements of 42 U.S.C. 14071. It requires the Department of Public Safety (DPS) to notify the Federal Bureau of Investigation (FBI) if a sex offender or child kidnapper does not register or cannot be found. Or, if such a person moves to another state, the FBI and that state are notified. He said they receive written judgments and notice of duration of registration. REPRESENTATIVE RYAN advised members that HB 252 provides for registration at the time of conviction, to allow public knowledge of who these offenders are and where they live. It ensures that fingerprints and photographs are taken at a place where other photographs and fingerprints are taken. It also provides clear requirements for sex offenders and child kidnappers to register upon moving into or out of Alaska. And it provides for offenders and kidnappers to provide proof of unconditional discharge to the Department of Corrections; this is a shift from the department to the offender or child kidnapper. REPRESENTATIVE RYAN continued, "It provides for expanded identity information to be collected and used in the registry. It provides for additional agency to fingerprint and photograph the offender or kidnapper. It provides for 15 years' registration time for the first offense, and life registration for the second, of sexual assault or kidnapping. It provides for the continuation of the registration period for one year at the instance of each failure to register timely or properly. And it provides for notification of other jurisdictions. It provides a definition of 'sex offender' and 'child kidnapper,' a definition of 'sex offense,' a definition of 'aggravated sex offense.' It provides for the Department of Public Safety to maintain a sex offender and child kidnapper registry, and provides for the Department of Public Safety to enter and maintain information gathered from sources other than the offender or the kidnapper." REPRESENTATIVE RYAN continued, "It provides for public access to information without making public record of the person asking for the information. And it provides for notification of relevant authorization when an offender/kidnapper escapes incarceration, along with appropriate identifying information." Number 0799 CHAIRMAN GREEN asked whether there were any questions. REPRESENTATIVE RYAN requested permission to distribute information they had acquired [mostly newspaper articles]. Number 0818 REPRESENTATIVE BERKOWITZ asked which version they were addressing. Number 0847 CHAIRMAN GREEN called an at-ease at 2:16 p.m. He called the meeting back to order at 2:20 p.m. and announced that because of the lateness in receiving Version Q [0-LS0818\Q, Luckhaupt, 2/4/98], they would now take testimony. ROBIN BOWEN, We Against Sexual Predators (WASP), testified via teleconference from Anchorage, thanking Representative Ryan and his staff for their diligence in presenting HB 252 and HB 360. She said Alaska is indeed fortunate to have a representative so concerned for Alaska's children. Ms. Bowen stated, "We ask simply for the total support of these bills. Alaska's children deserve no less. Equipping our judges with tough, clear, (indisc.) laws ensures a greater level of safety for our children. We will endeavor to continue to monitor specific cases during the trial and sentencing of these offenders, to keep a line of communications open and provide a means of accountability during these matters. The children are now being heard and will continue to be heard." Number 0933 CHAIRMAN GREEN asked Captain Ted Bachman, Division of Alaska State Troopers, Department of Public Safety (DPS), whether he wished to testify via teleconference from Anchorage; Captain Bachman deferred to Anne Carpeneti in Juneau, who agreed to wait until after testimony was taken from people on teleconference. In addition, Diane Schenker, Criminal Justice Planner, Division of Administrative Services, DPS, indicated via teleconference that she was available for questions. Number 0977 SUZANNE MANNIKKO, We Against Sexual Predators (WASP), testified via teleconference from the Mat-Su Legislative Information Office (LIO). She stated, "Eight years ago, I watched our system fail my daughter and I. I'm as angry today as I was then. I watch our courts run sex offenders in one door and out the other. Judges who blame legislators, and legislators who blame judges. Sex offenders who have a dozen charges pending before them play the 'DA game'; they hold out, plea down to lesser charges. Attorneys who defend them with vigor, knowing that they are guilty. Troopers who say it would be too heavy a burden to enforce our registration laws. A correction department that cries 'foul' because they haven't time or space. It sounds like empty excuses." MS. MANNIKKO continued, "I don't believe any one of you could have walked in my shoes these past years and be proud of the protection we offer our most vulnerable members of our society - our children. (Indisc.) was given the mandatory seven-year sentence. He again played the system and walked out, serving only three and a half years, leaving us mentally, physically and financially devastated. To this day, I struggle to hold on to what little I have left." MS. MANNIKKO continued, "Sex offenders have lost the trust of our community and therefore must be responsible for past actions. They laugh in our faces, refusing to register, giving false information and hiding behind what they call their rights. What happened to the rights of the victims and their families? What Alaskan child should ever bear the hardship of an abortion at the age of 11? And then to hear the perpetrator was given a sentence of only seven years." Number 1056 MS. MANNIKKO said she believes that any civilized society could not find this acceptable. She said it saddens her to see one of the wealthiest states not take up the cause for Alaskans' future, and she characterized the system as caring more about the dollar than about providing protection. Ms. Mannikko stated, "You must make Alaska's sex offenders accountable for the pain, hardship [and] financial devastation these people force us to endure." She asked members to support HB 252 and HB 360, which toughen the stand against sex offenders. Number 1127 SYLVIA DAVEY also testified via teleconference from the Mat-Su LIO, stating support for HB 252 and advising members that she works for a day care center. She read the following into the record: "Pedophiles. It leaves a bitter taste in my mouth just saying it. When I hear that word, pictures of children being raped flash through my mind. I see them crying, crying from physical and emotion pain. What these pedophiles do to the children in this country sickens me. "So, I hear some law enforcement officers don't have the time or the money to enforce Bill Number 252. Would you want your child or grandchild to be their next victim? The pedophile moving in next door, you not knowing they had raped a child before. The child molester gets a cute puppy to lure your child over toward their yard. Oh, I forget, if you wanted to, being an officer of the law, you could have your buddies find out all you need to know about your new neighbor. "Well, the public relies on the sex offender list to know where they are moving into. Do we not list owners of (indisc.) dogs in the local paper? Well, I hold the lawmakers responsible for enforcing laws needed to protect our children, because these criminals are handed over to you to deal with. Are you standing up on behalf of children or the child molester? Our laws will reflect on whom you decide. Thank you." Number 1207 W. ANN EDEN-MENEZES testified via teleconference from the Mat-Su LIO, specifying that she was speaking not from a script but from her heart. She stated, "When I was a child, my life was shattered, all because of a sex predator. When my mother tried to get help, he, the predator, cried insanity - he cried her insanity. And as a result - through two years of in and out of institutions, where they did shock therapy on her brain to try to erase her memories, because she was Indian, he was of the European ethnic background - my mother was shattered. I never saw my mother again. (Indisc.) provided that my mother wasn't there. MS. EDEN-MENEZES continued, "I was separated from siblings. I spent nights weeping and crying, wondering where my family was, and trying to find that thing that was robbed from me that I could no longer pull back, that sense of protection, that sense of purity, that sense that I was special. And to find that we have in our capability to be able to require these people to register -- because had my predator been required to register, many other children would have grown up safely. But no, they listened to him. They believed him. And they shattered so many lives, and there are still others that are being shattered." MS. EDEN-MENEZES continued, "Sex predators appear harmless, and to the normal adult, they are harmless, because they do not have the gumption to face the real people. They pick on children. They are like devouring slugs. They're underground. They're nipping at the roots of something very precious. You have it in your power to protect the garden or to protect the slugs. Which will it be?" Number 1326 CHAIRMAN GREEN thanked Ms. Eden-Menezes for sharing that regrettable incident, acknowledging that it took a lot of courage on her part. He then thanked the other testifiers and asked that anyone with written testimony send it or fax it to the committee. Number 1354 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Crim history. Jacob Wetterling was an 11-year-old boy who lived in St. Joseph Minnesota; he was abducted by a masked man with a gun and was never seen again. The police investigated; the case was similar to one that happened in the next community, and they assumed it was a sex offender who had taken him. MS. CARPENETI told members that as a result of this and other crimes of this nature, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which requires states to adopt a registration program for people who commit certain crimes against children and certain sex offenses. When this was passed, Alaska already had a good sex offender registration program, which was adopted in 1994. Ms. Carpeneti said that makes it easier for Alaska to comply with the Wetterling Act than for other states, by adding certain new offenses to those required to be registered in Alaska - for example, kidnapping of children under the age of 18. She noted that for one particular offense, sexual contact by a person over 18 in a position of authority with a 16-year-old or 17-year old, the state cannot comply with the Wetterling Act without a major change in statute. Number 1459 MS. CARPENETI advised members, "The main thing that we need to do to comply with Wetterling is to have people who are convicted for the second time, or of serious offenses, to register or verify their address every 90 days with an agency of the state. And this bill - it's similar to the Governor's bill - requires that people ... who are convicted of these serious offenses or for a second time have to verify their address every 90 days with the police." MS. CARPENETI told members the Wetterling Act was amended by Megan's Law, named after a seven-year-old child who was raped and killed by a sex offender living across the street from her. Ms. Carpeneti explained, "What that did was Wetterling had originally provided that the information that the states gain at the time of registration was confidential and could only be used by law enforcement. Megan's Law provided that ... the states can decide whether or not to disseminate the information; and they are, in fact, required to disseminate information that is important to the public safety." MS. CARPENETI expressed appreciation for the work Representative Ryan has done. Again noting that HB 252 is similar to the Governor's bill, she advised members that it does bring the state into compliance with the Wetterling Act and with Megan's Law. She said there are a few little "fixes" that the department would recommend, and she specified that she had been working from Version P. [A copy of Version Q was then provided to her.] Number 1540 MS. CARPENETI pointed out that HB 252 raises to a class C felony failure to register as a sex offender, and it adds some other behavior such as failure to verify one's address quarterly for a person required to register for life. She stated, "It will probably be a presumptive term, because ... most registerable offenses are offenses. This will be a second felony offense, which will be a two-year presumptive term, so you should be aware that ... that's what we're getting into by making it a C felony." Number 1587 REPRESENTATIVE PORTER stated his understanding that the Department of Corrections had changed the procedure for registration so that a person is registered prior to release, as opposed to being released and then having to come back to register. MS. CARPENETI replied, "That's correct. And actually, ... that's in the Governor's child protection bill, and we're putting it into law. In practice now, that's exactly what they're doing." She said unfortunately, Title 33 is a little confusing. Number 1618 REPRESENTATIVE PORTER asked, "Have the fiscal notes as regards failure to register been adjusted to that policy?" MS. CARPENETI said she wasn't sure. She stated, "But in addition to failure to register, this bill provides that if you fail to verify your address quarterly, and if you -- every year, that sex offender registration requires you to, every year, check in, sort of, with the Department of Public Safety and tell them either that any of the information has changed or, in fact, that it hasn't changed. So, failure to do that would be a C felony under this bill." CHAIRMAN GREEN asked, "If you did that more than once, if it's quarterly, would that be a repeat offense? Would that be a third felony then?" MS. CARPENETI said yes. Number 1659 REPRESENTATIVE BERKOWITZ said it also seems that if there is any problem with failure to register, there is potentially a perjury charge if false information is provided. MS. CARPENETI replied, "Yes, the bill also provides that providing false information on the sex offender registration or verification is punishable by perjury, which is a class B felony." Number 1683 REPRESENTATIVE BERKOWITZ asked, "If this was required to be sworn testimony, would it in any event be perjury?" MS. CARPENETI replied, "I think if you'd write the right things on the forms, you can make it perjury for putting false information - knowingly putting false information - on a registration form." Number 1699 REPRESENTATIVE BERKOWITZ suggested that in essence, someone who attempts to camouflage his or her whereabouts by providing false information would already be committing a felony. MS. CARPENETI responded, "Without this bill, no, I think it would be unsworn falsification on this point. ... It depends on what the form says. But we have been pursuing unsworn falsification for people who lie on their registration materials. This bill would make it a perjury, and they'd have to rewrite their forms so that it was clear that providing false information ...." REPRESENTATIVE BERKOWITZ said in essence, at the very least at this point it is two misdemeanors, unsworn falsification and failure to register, which stacked have a two-year term. MS. CARPENETI concurred. Number Number 1752 REPRESENTATIVE ROKEBERG said he noticed throughout the bill that the additional crime of child kidnapping is added. He asked whether that is mandated by the federal statutes. MS. CARPENETI said yes. She added, "Jacob Wetterling requires us to register people who kidnap children under 18." REPRESENTATIVE ROKEBERG asked about Ms. Carpeneti's statement that the Wetterling Act is amended by Megan's Law. MS. CARPENETI explained that Megan's Law only amended the provision in the Wetterling Act that addressed what information, once they get it, the states can disseminate to the public. Number 1796 REPRESENTATIVE ROKEBERG asked whether because of the federal requirement, there is a time deadline that Alaska has not acted upon, or whether recent changes in federal law have spurred this. MS. CARPENETI replied that the budget bill last year that Congress passed had some provisions, which they called the Jacob Wetterling Improvement Act [Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Improvement Act of 1997]. She stated, "The federal government has not yet issued guidelines telling us exactly what these provisions mean. It looks like they're going to be loosening up the requirements a little bit, but not very much." Number 1835 CHAIRMAN GREEN asked whether it would constitute kidnapping if a 19-year-old boy took a 17-year-old girl home from school, she wanted to get out of the car, they got in an argument and he detained her, for example. MS. CARPENETI said it would depend on the particular facts. She indicated HB 252 doesn't change the substance of the law regarding kidnapping at all. Number 1873 REPRESENTATIVE BERKOWITZ said it seems that a 16-year-old who kidnaps a 17-year-old would be guilty of child kidnapping under this interpretation and would be required to register. MS. CARPENETI replied that unless juveniles are tried as adults, they haven't been registered as sex offenders. She asked whether he was talking about a juvenile prosecuted as an adult. REPRESENTATIVE BERKOWITZ said yes, for kidnapping someone. MS. CARPENETI said yes, then, that is correct. Number 1949 REPRESENTATIVE ROKEBERG said he would love to debate about what child kidnapping should be, but apparently it is the federal law. He suggested that many parents without custody of their children are involved in child kidnapping; he said under this bill, those people would be registered. He asked whether that is correct. MS. CARPENETI explained, "Generally, our kidnapping statutes do not apply to parents who move their children from one place to another. ... That's considered custodial interference, and that is not a basis for registration as a sex offender." Number 2008 REPRESENTATIVE ROKEBERG referred to Section 12, Version Q, page 7, beginning at line 7. He asked whether "solicitation" refers to prostitution. Noting that it indicates that engage or inducing someone 16 or 17 years of age in prostitution is a sex offense for the purpose of this statute, he asked whether solicitation alone wouldn't be a sex offense as well. MS. CARPENETI indicated that because they are required to by the federal government, they have added as a registerable offense the offense of a person in a pimp position getting a child to engage in prostitution. Number 2114 REPRESENTATIVE BERKOWITZ commented that drawing on past experience, he interprets "solicitation" in this context to mean soliciting someone to commit this crime. Number 2141 REPRESENTATIVE ROKEBERG said he wasn't that familiar with the bill or the statute. However, he was concerned that the different levels of what constitutes a sex crime for the purpose of this registration are all treated equally. He asked whether that is mandated by federal law or state law. He mentioned indecent exposure as an example on one end of the spectrum. MS. CARPENETI explained that most registerable offenses are felonies. It is directed in some part by federal law, but the crimes required to be registered are the more serious sex offenses, at least as opposed to indecent exposure, which is a misdemeanor. Number 2249 CHAIRMAN GREEN stated his understanding that they are talking about offenses done to children, not adults. MS. CARPENETI clarified that the offenses that require registration don't depend on whether the victim is a child, except in a couple of instances such as child kidnapping or the offenses referenced in Version Q, page 7, lines 13 through 15. A person convicted of sexual assault on an adult is required to register under the sex offender registration provision. Ms. Carpeneti commented, "And I guess these decisions were made in 1994, when the bill was passed, that ... the people who commit these offenses are dangerous enough to require this registration procedure." Number 2337 REPRESENTATIVE ROKEBERG asked whether there are instances in the statutes where a threat without actual contact could lead to a prosecutable sexual assault. Number 2434 MS. CARPENETI replied that conviction of an offense is what triggers a person's responsibility to register as a sex offender. "We have to prove beyond a reasonable doubt that the behavior ... proscribed by the legislature in our statutes has in fact occurred," she stated, adding that beating someone up is not a registerable offense if there is no sexual act. TAPE 98-10, SIDE A Number 0006 REPRESENTATIVE ROKEBERG asked whether attempted sexual assault would be a sex crime under this law. MS. CARPENETI said yes. REPRESENTATIVE BERKOWITZ added, "B felony." MS. CARPENETI said it depends on the level of the offense. Number 0052 REPRESENTATIVE ROKEBERG expressed concern and asked again whether there are ways to make distinctions between the types of crimes, or whether this is mandated by the federal code. MS. CARPENETI said she hated to give this answer, then stated that she assumes Congress, when it made its assumptions as to who should be registered, was looking at the seriousness of the offense and had some good reasons to include them as registerable offenses. Ms. Carpeneti added, "Actually, what this legislature passed in 1994 was pretty similar to what the Wetterling [Act] requires us to register, with a couple of exceptions, and that is a child kidnapping, a kidnapping of a child under 18, and ... sexual abuse of a minor. And maybe I wasn't clear enough. Sexual abuse of a minor is included here, so -- in the sense that those victims are minors." CHAIRMAN GREEN said, "But not limited to that." MS. CARPENETI said, "It's not limited to that. We also had to include, under the Wetterling Act, ... the crime where an individual who is 18 years of age or older has sexual contact with a 16- or 17-year-old and is three years older and is in a position of authority in relation to that 16- or 17-year-old. ... That is required by the ... federal law. But otherwise, most of these provisions were already in our sex offender registration statutes." Number 0205 MS. CARPENETI continued, "The next suggestion we have is found on page 2. And we've talked to the sponsor about it, and he has his reasons, which I think are good ones. We would suggest, rather than requiring registration at the time of conviction, to require registration of people who are incarcerated for their offense right before they are released from jail, within the 30-day period of release from jail, for a couple of reasons. Their photograph is going to be more recent. And people change over a period ... of five or six or seven years in jail, their appearance changes. And it's best to get the most recent picture. And if they're in jail already, they're really not posing a danger to the community. That's one reason." MS. CARPENETI continued, "Once they register, we want to find out every year ... if they've moved. And there's no reason to do that if they're in jail, because they're not moving to a place, or they're not in a place that presents a danger to the community. Number 0278 MS. CARPENETI continued, "The third reason is that practically, requiring them to register at the time of conviction presents some problems, because a person is convicted at the time ... that they are sentenced for the offense, ... and to register as a sex offender, you have to register with the police, or, if you're in jail, the Department of Corrections will register you. But it would require -- I don't know exactly what we would do. We would require a police officer or some state official to be there, if that's how it's interpreted, to register at the time of conviction. It just seems to make a lot more sense to us to register once, right before release, so that we have a recent picture, the person has more idea where he or she is going to be living when ... he or she is released. And the Governor's child protection bill requires the person ... to register within the 30-day period ... from their release from jail, and to have the Department of Corrections do that. And we would suggest that's a better approach." CHAIRMAN GREEN asked whether she was suggesting within 30 days or at the time of release. Number 0360 MS. CARPENETI clarified, "Within the 30-day period before release, so that it gives Corrections some time to take their fingerprints and their photograph and make sure everything is ...." REPRESENTATIVE ROKEBERG noted that it would be everything except their address, because they don't know where they're going to be. MS. CARPENETI replied, "Well, they might know at that time, but they'd probably know a lot better when they're released than when they're first convicted." CHAIRMAN GREEN said he'd wanted to make sure it was within 30 days before, not within 30 days after. Number 0393 MS. CARPENETI affirmed that and specified that in Title 33, the Alaska Statutes now provide that. She added, "Unfortunately, there's confusion because ... our statutes in Title 12 say 'within seven days of release,' and that's a problem because, you know, people may not go register. And we don't want that to happen." Number 0419 MS. CARPENETI provided suggested amendments to Version Q. First, on page 8, line 1, Section 14, she suggested adding the word "registration" between the words "receives" and "information" at the beginning of that line. MS. CARPENETI next referred to page 8, line 3, and stated, "We appreciate the sponsor adding this; this was at our suggestion. But ... after reading it this morning, we thought it'd be clearer to say, 'Unless the sex offender provides proof that he is out of state or has already complied with the time limits,' so that it's clear that the department isn't putting information on the central registry ... when they know that the person no longer has to register or ... when they have proof that they're out of state." MS. CARPENETI said they are trying to make it easier for the Department of Public Safety, and she indicated Diane Schenker could address that. Ms. Carpeneti then explained that when people don't register and the state gets information from court judgments or other sources, they can put it on the registry. She added, "If we think these people are around, the public should know it, even if they haven't registered." She said she could provide this proposed amendment to the committee staff. Number 0518 MS. CARPENETI then made what she called a minor suggestion, on page 11, line 8, to add the words, "sex offender central registry" after the phrase, "the Department of Public Safety". She explained that this is so that local police departments and the Department of Corrections send this information to the registry, rather than to Alaska State Trooper headquarters or some other place where it would have to be passed along. Number 0697 MS. CARPENETI said those are her main suggestions. She told members, "We've been working with Representative Ryan and his staff; they've been very cooperative with us, and we'd be glad to continue to do so." Number 0714 CHAIRMAN GREEN suggested that the sponsor review these suggestions with Ms. Carpeneti and then return with another proposed committee substitute or formal amendments to offer. This would also give the committee a chance to review Version Q. He noted that there were still people signed up to testify, and he thanked Ms. Carpeneti. Number 0767 BARBARA BRINK, Director, Public Defender Agency, Department of Administration, came forward to testify, reminding members that she had also testified about some of her concerns the previous October. She indicated she had received more information since then. MS. BRINK stated, "My main concern at that point was with increasing the penalty from a misdemeanor to a felony, and with increasing the numbers of times a person has to register within a year cycle, and with increasing the amounts of information one must provide, that there was the potential for many more violators to inadvertently be caught within this net. I did learn, since my worries about ... how many people that might be, that last year the Department of Law prosecuted 127 people for failure to register. It certainly has an impact upon my agency and upon how we are able to do business, whether we're representing 127 misdemeanors versus 127 felonies - and, as Ms. Carpeneti pointed out, 127 felonies with mandatory two-year sentences." MS. BRINK pointed out that felonies are much more time-consuming and labor-intensive than misdemeanors. Therefore, she had adjusted her fiscal note and wanted to bring that to the committee's attention. She added, "But I think it's still a very conservative adjustment. I've only asked for half an attorney position, which I don't think will be sufficient, because as you continue to roll the requirement for registration and verification, four times a year every year for 15 years, the potential for having many people charged for inadvertent failures to register is very great. And ... I also had a figure from the Department of Public Safety; I don't want to impose upon their testimony, because I know they're present, but my understanding was that out of 1,700 people who did faithfully register, last year when the time for the annual verification or renewal came around, I believe 690 people didn't make it." MS. BRINK continued, "And my concern is that a great percentage of those people are not the ones that you're really after. I mean, I understand being after the stealth criminal, the person who's hiding, manipulative, conniving, evasive, and because of that, he is a serious danger. My concern is that we are sucking in a population that just isn't very good about following meticulous rules, isn't -- they don't get their cars registered on time, either. And certainly this is a much more serious problem. But if there could be an effort to sort of narrow the field, I think that your concerns about protecting the community and registering those people that we really want to know about can be induced to do that with perhaps a change in the severity of the offense or in the requirements." Number 0926 CHAIRMAN GREEN asked whether a more severe penalty would better get the attention of the people that have inadvertently failed to register. He suggested it was different from failure to register a car. MS. BRINK replied that it is hard to say. Increasing penalties for some offenses has shown a deterrent effect; she cited the three-day minimum penalty for driving while intoxicated (DWI) as an effective tool for those people who actually think about consequences. She stated, "So, for that population that maybe isn't just putting it on the right priority scale, I think a slightly more severe penalty may have an effect. It may be that once law enforcement starts prosecuting a few more of those and the message gets out, that may have a more deterrent effect. I wish I knew the answers to those questions. That would certainly make drafting criminal legislation a lot easier." Number 1002 CHAIRMAN GREEN asked how they defend clients who have failed to register. MS. BRINK said her own experience is rather limited because she is not personally representing those misdemeanants. However, in talking with her staff attorneys, it is a rare situation where somebody is willfully doing that to be evasive. She stated, "And, in fact, there is a case pending, as I understand it, right now in Southeast Alaska in the Kake district court, where the whole question is: Was this failure to register intentional or willful, or was it completely an accident or mistake or negligence, and how does that affect the charge? Is the state required to prove that this was intentional? Or is it sufficient to just show that they missed their deadline? And so, it's a sticky legal question." MS. BRINK indicated the limited cases she has seen personally have not involved intention, evasion or deliberateness. For example, she had just represented someone who registered three times in a row successfully but missed his fourth time and was charged. Ms. Brink stated, "And my impression of that individual wasn't that he meant to miss it but that other things took priority. And I agree with you that's wrong. But by demonstrating that he had registered successfully three times, my impression was that it was a mistake." Number 1091 CHAIRMAN GREEN asked whether failure to register requires intent. MS. BRINK replied that the definition is "knowingly." She said it is kind of a factual question of what was going on in that person's mind at the time. REPRESENTATIVE PORTER asked whether the Kake case is being handled by the Public Defender Agency. Number 1112 MS. BRINK said no, it is an Office of Public Advocacy (OPA)case. Referring to an earlier question of Representative Rokeberg's, she then noted that Version Q, page 7, Section 12, refers to AS 11.51.130, which is contributing to the delinquency of a minor. She indicated she had just received Version Q a few minutes beforehand. CHAIRMAN GREEN asked whether Ms. Carpeneti had information to add. Number 1196 MS. CARPENETI clarified that that definition of a serious offense is in Title 12, Chapter 62; it is not a registerable offense. It is a definition that has to do with what records can be given to people who are looking to hire a babysitter or somebody who is going to be working with vulnerable adults or children, for example. A person who is convicted of that offense does not have to register as a sex offender. Number 1172 MS. BRINK stated, "I understand the legislature's concern about protecting the public, and I understand the legislature's concern about complying with the Wetterling Act. I just wanted to reemphasize two things. The Wetterling Act does not require that we change this into a felony-level offense. And, number two, even the Department of Justice - the National Institute of Justice Section of the U.S. Department of Justice - says everybody's jumping on this bandwagon. We now have 43 states that require registration, and presumably all 50 will soon be in compliance. But there still is no empirical evidence that that reduces the rate of recidivism. We're trying something; we don't know whether it works." Number 1273 CHAIRMAN GREEN asked whether Ms. Brink has a feel for the way the 43 states handle this and whether it is a felony or a misdemeanor in those states. MS. BRINK said she didn't have that information off the top of her head. She said she knows that so far, New Jersey is the only state that requires this every 90 days. CHAIRMAN GREEN asked whether that is a felony or a misdemeanor. MS. BRINK said she didn't know but would get that information. Number 1298 REPRESENTATIVE ROKEBERG stated his belief that testimony indicated the 90-day or quarterly registration is part of the Wetterling Act. MS. BRINK said that is what she understands from the Department of Law. Number 1468 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety, came forward to testify, expressing support for HB 252. He said he wanted to make it abundantly clear that throughout his law enforcement career, he has not been concerned about what the punishment is for any particular crime. "My job, then and now, was to apprehend people," he said. "I might have personal feelings about what the punishment should be, but the Department of Public Safety doesn't want to argue about whether it should be a felony or not. There are certainly things that go along with being a felony that cost more than it does currently, and it's been fairly well-articulated here, so I don't want to belabor that point. But there are other things that I think could be done if you chose not to make it a felony, such as some kind of mandatory minimums for misdemeanors and those kind of things." DEPUTY COMMISSIONER SMITH pointed out that approximately 3,300 people are currently required to register, if they are in the state. At one point last year, 1,700 were registered. As Ms. Brink had indicated, 690 had failed to re-register within the 30 days prior to their birthdays. DEPUTY COMMISSIONER SMITH stated, "That was about two weeks ago that I got that information; we're down to 590 now, as we slowly track down, charge people and do that. For some reason, that dropped off. That's nearly a third of what we had registered. Clearly, ... somebody's thinking that it's not a big deal if they don't. So, I would say that that certainly bears some attention on the part of the legislature regarding this." Number 1421 DEPUTY COMMISSIONER SMITH told members the other issue he certainly supports in this is the availability of names of others than those people who choose to obey the law and come in to register. "And we can't put that out as part of the sexual offender registry, under our interpretation of the current law," he explained. "And there is a section of this that certainly would allow us to do that, getting the information from other sources." DEPUTY COMMISSIONER SMITH continued, "We can't put it out if we don't know they're in the state. And it is a very, very time-intensive process trooper was assigned for a week down here about two weeks ago, in Juneau - not a lot of road system here - but tracked down eight people in five days, from going from address to address; so, it is very labor-intensive." Number 1458 CHAIRMAN GREEN said he was hearing that while it may be more expensive, at least certain portions would be helpful. DEPUTY COMMISSIONER SMITH replied, "I think some enhanced punishment for not complying with the law might be in order here. I don't know what drove those folks to say, 'Gee, I recognized the one time that I had to register; now I don't.' I don't think all 600 left the state." Number 1478 REPRESENTATIVE BERKOWITZ referred to Section 18, which contains a requirement that the sex offender or child kidnapper must provide fingerprints. He suggested it might be helpful for them to also provide a DNA (deoxyribonucleic acid) sample. He asked whether any thought had been given to that. DEPUTY COMMISSIONER SMITH replied, "Not specifically, but ... there is a requirement that we get DNA samples for people convicted of certain offenses now, that passed two years ago, and we are collecting DNA samples. Whether it's all of these sex offenders, I cannot tell you off the top of my head. But it certainly would not hurt in the long run." Number 1525 CHAIRMAN GREEN suggested that would add both to the cost and to the proof, at least. He asked, "Would it help you any in finding these? You mentioned the labor-intensiveness and so on. It would certainly eliminate any mistakes." DEPUTY COMMISSIONER SMITH responded, "It would certainly eliminate any mistakes, but hopefully the fingerprints do also. We take a set of registration fingerprints (indisc.) to help us do that. As relative to the DNA - I was advised the other day - we take blood currently, but it's also possible, given the two years that have passed, that we can just do a swab of saliva also, which help us capture DNA samples." Mr. Smith said it would not be particularly problematic to do that. Number 1561 REPRESENTATIVE ROKEBERG asked whether, if someone was in breach of a series of class A misdemeanors, that could become a felony; he asked whether any such laws now exist. REPRESENTATIVE PORTER pointed out that there are other offenses where a third or fourth or fifth conviction becomes a felony, such as for a DWI; however, those are not simultaneous offenses. DEPUTY COMMISSIONER SMITH agreed, saying a third-time felony DWI comes to mind. Number 1654 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, came forward to testify. She stated, "I think it goes without saying that the council is consistently interested in seeing whatever we can do take place to protect victims of sexual assault and child abuse. Therefore, we do support this bill." MS. ANDREEN continued, "There is one caution that we have, that we want to look into further - we've talked to the sponsor's aide about that - and that's the concern that victims of domestic violence who flee to protect themselves and their children would not be captured under this child kidnapping. I understand that that's most often treated as a custodial-interference-type of thing. But that's the only caution we have, and otherwise, we support the bill." Number 1691 REPRESENTATIVE CROFT said that was a concern he had as well. He said he had looked up the statute on kidnapping, which makes as an affirmative defense that the defendant was a relative of the victim, the victim was under 18, and the primary intent was to assume custody. CHAIRMAN GREEN advised members that the testimony was concluded. Number 1712 REPRESENTATIVE PORTER noted that the sponsor had been asked to look at some things. He asked that perhaps a look be taken at failure to register or failure to provide an address, for example, with the idea that a mandatory minimum for a first offense misdemeanor be considered, with perhaps a felony for repeat offenses. He expressed concern over the effect of the high fiscal notes when this bill gets to the House Finance Standing Committee. Number 1752 REPRESENTATIVE CROFT referred members to his proposed amendment L.2 [0-LS0818\L.2, Luckhaupt, 2/2/98, in committee packets]. He suggested it is another approach that makes it a C felony if it can be shown that a person failed to register "with the intent to escape detection to do this crime." He indicated there would be two levels, the first of which is negligence. REPRESENTATIVE PORTER suggested it may be worth checking with the Department of Law as to their opinion on the case in Kake. He said if the standard now is "knowingly failing to register," there is a good chance there might be some requirement of intent in that. He stated, "And so, in effect, there might be a problem in the statute in any event that needs to be looked at." He suggested at one level, malum prohibitum, it could be a misdemeanor with a mandatory minimum for failing to register, period; it would not be knowingly. Then, if there is a standard of "knowingly," perhaps there could be a felony under that standard or for repeat offenses of just failing to register. CHAIRMAN GREEN asked whether for a standard of "knowingly," the degree of proof is as severe as for a standard of "intentionally." REPRESENTATIVE PORTER said yes, it is basically the same. CHAIRMAN GREEN noted there was disagreement from others. Number 1815 REPRESENTATIVE CROFT said he could look into it further, but there has to be some level of culpability beyond just not registering. For example, if a person does everything that should be necessary to register - sending in the form, walking it there, and so forth - but there is a glitch or error in entry, that person has failed to register in fact. Representative Croft suggested there must be some level of culpability, some requirement, beyond just not doing it. Number 1839 REPRESENTATIVE PORTER replied, "I'll agree that technically you can articulate differences between knowingly and intentionally, although I would suggest that most folks would imply intention with knowingly, because you have to prove that you knew it; so, intention is implied. There's basically two levels of offenses: malum prohibitum and malum in se. Malum prohibitum means it's against the law whether you knew about it or no; if you go through a stop sign you didn't see, tough, it's malum prohibitum, it's against the law, you get a ticket, you pay your money. Malum in se requires the proof of intent, knowing, whatever you want to call it, but it's basically intent. My suggestion would be that you make malum prohibitum failing to register, or failing to furnish the quarterlies, and make it a mandatory minimum misdemeanor. That'll get their attention. But, quite frankly, ... these fiscal notes don't bode well in Finance if you don't try to ...." Number 1890 REPRESENTATIVE RYAN said perhaps 3,300 people are convicted. Of those, 1,600 show up on the Department of Public Safety's list. Approximately 600 of those are not registered correctly. Representative Ryan stated, "My aide ran the first hundred on the list this morning and found 31 percent were incorrectly registered; they're either lacking information, outdated information, so forth. So, obviously, 31 percent of these guys are blowing it off, out of the first hundred, and ... only 1,600 out of 32 [thousand] or 33 [thousand]; that's 50 percent blowing it off. We're not getting very good policy." REPRESENTATIVE RYAN indicated someone from the Office of the Attorney General had talked with him about reducing this from a felony and making it a little stiffer misdemeanor. Representative Ryan stated, "And what my aide's research found out was the people, if they were apprehended, they were registered, they came to the judge, the judge says, 'Well, are you registered or not?' 'Yeah, we registered.' 'Good. Case dismissed.' It doesn't seem to do it." REPRESENTATIVE RYAN advised members that the reason he made this a class C felony was to put a hammer there, without probation or parole, as an inducement to register. Then the citizens in the community can find out who these guys are and keep the light on them, he concluded. Number 1950 REPRESENTATIVE PORTER asked how many of those failures were as a result of the felon registering himself, as opposed to the new policy of the Department of Corrections. He said he didn't know when that policy went into effect. REPRESENTATIVE RYAN deferred to David Pree to answer. Number 1960 DAVID PREE, Legislative Assistant to Representative Joe Ryan, Alaska State Legislature, said he didn't know that he could answer the question, but he could explain what he had done. He stated, "I took just simply the first 100 names that I encountered in the sex offender registration that's on the Internet, and I printed them out. And I ... began noticing quickly that 'not in compliance' was noted on these. And when I was finished, I separated those in compliance and those not. As far as I can tell from this form, it doesn't specify why they're not in compliance, just they are not." REPRESENTATIVE PORTER suggested that statistically that would mean that most of those were done by the individuals, rather than by the department. Number 2002 REPRESENTATIVE BERKOWITZ said, "We're going to have a couple of policy imperatives here. The first is we want folks to register, in order to provide for community safety. The second is ... we're going to have to do this within the constraints of other cases that are ongoing, in terms of the resources required for the Department of Law, the Department of Public Safety, the Department of Corrections." He said on one hand, they want to ensure that everyone registers and that there is a big enough hammer. But on the other hand, they want to be able to move these cases through the system in a way that doesn't compromise public safety. He suggested they could come up with a way to separate out those who pose no additional danger to society but just are not good with forms, for example, from those who are intentionally trying to evade. He suggested the additional hammer may work for the latter. Number 2169 REPRESENTATIVE RYAN commented that he is a critic of the discretion that prosecuting offices have to plea bargain, dismiss cases, and so forth. He suggested part of the problem is that the more difficult cases slide. He expressed concern about people who are flagrantly blowing the system off. He stated, "The object of this whole exercise on my part is to satisfy a public cry that I hear, and we've heard lots of testimony: 'We want to know who these guys are, and we want to know if they're in our neighborhoods, so we can watch 'em and keep our kids away from 'em.' And I told the AG's office [Office of the Attorney General] when they said, 'Well, can we find a way to get around the class C felony?' I said, 'Okay, give me a year in jail on a misdemeanor - mandatory year in jail - and I'll take it.' ... Justice works, and the criminal system works, when punishment is swift, sure and certain. You know if you do the crime, you're gonna do the time. That has a deterrent effect. But if you can go, like in Los Angeles, where you commit 19 crimes for every arrest, and 12 arrests for every conviction, why, gee, it's good business; the odds are pretty good, you know." Number 2115 REPRESENTATIVE BERKOWITZ said if jails worked, we wouldn't need any, which is sort of the rub of the problem. However, jails don't work for everyone as a deterrent. "But there are hammers out there with the misdemeanor penalty," he stated. "All these folks that you're talking about, who are sex offenders, they're facing the loss of probation time or parole time; so, that additional hammer is on them. Plus, ... if they fail to comply in the appropriate way, there could be additional charges stacked on top of just the failure to register. We've already seen the false information charges. You could be looking at felony perjury charges. ... It's not as if the district attorney's office is without tools in this regard. So, there are hammers available." REPRESENTATIVE BERKOWITZ continued, "But what the DA's offices are constrained by, as well as the troopers, it's just a complete lack of resources. When you give them a choice between prosecuting a felony - such as a homicide or a dangerous assault or a drug dealing in a school yard - as opposed to going after someone who hasn't registered and might not be posing an ongoing threat to the community, and you've got a choice with limited resources, it's not a choice. So, we can talk real tough here. And we do talk real tough here. But until we put the money on the table, so the troopers and the DAs can do the job, it's just empty talk." Number 2169 REPRESENTATIVE RYAN indicated they had heard testimony from the Public Defender Agency about an average time of 41 days for the people who were arrested. He commented that it isn't much of a deterrent. [HB 252 was held over.]
| Document Name | Date/Time | Subjects |
|---|