Legislature(1997 - 1998)
02/16/1998 01:08 PM House JUD
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* 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 Number 0151 CHAIRMAN GREEN announced the next item of business would be 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 0211 REPRESENTATIVE JOE RYAN, sponsor, indicated he and his staff had been working diligently with both the committee and the Administration to address various concerns, making substantial changes to the original bill. He called on his staff member, David Pree, to outline the latest changes. DAVID PREE, Legislative Assistant to Representative Joe Ryan, Alaska State Legislature, referred to Version T [0-LS0818\T, Luckhaupt, 2/13/98]. He explained that the substantive changes made since the last hearing are in Sections 1 through 4; with the exception of Section 7, the following sections contain minor changes. They had changed some language for the Department of Public Safety (DPS) and a few other things that he could point out. Number 0307 MR. PREE discussed the gist of the major changes. First, failure to register as a sex offender or child kidnapper has been changed to a two-step process under which the first-time failure to register is a class A misdemeanor. However, there is an exception that a person could be prosecuted for a class C felony if the failure to register was deliberate, intentional or malicious, or if the period that they have not been in compliance or not properly registered has been more than one year. MR. PREE pointed out that Alaska is supposed to have approximately 3,300 registered sex offenders. He said there are two parts to the problem. First, of the 1,600 who have actually registered, about 30 percent have not re-registered. And second, 1,700 are not accounted for. Mr. Pree indicated those are the offenders that were included in the original bill between 1994 and its retroactive active date of July 1984, and those are the people that the felony is intended for. Number 0436 REPRESENTATIVE ETHAN BERKOWITZ expressed appreciation for the sponsor's efforts to accommodate the legal concerns of all parties involved. He made a motion to adopt Version T as a work draft. CHAIRMAN GREEN asked whether there was an objection. Hearing none, he announced that Version T (0-LS0818\T, Luckhaupt, 2/13/98) was before the committee. Number 0481 REPRESENTATIVE BERKOWITZ asked whether Section 24 is the same in Version R and Version T, noting that he'd just received the latter. MR. PREE pointed out that the sections were renumbered. REPRESENTATIVE BERKOWITZ said as he understands Section 24, someone already convicted of a sex offense would be required to register. MR. PREE said that is true for a felony sex offense. REPRESENTATIVE BERKOWITZ expressed concern that it might be subject to challenge under the double jeopardy clause, as it places an additional requirement on someone who has been sentenced for a sex offense. MR. PREE replied that courts across the nation have held that it is not double jeopardy. He offered to provide backup material. Number 0552 REPRESENTATIVE BRIAN PORTER requested an explanation of the differences between Version R and Version T. MR. PREE replied that Sections 1, 2, 3 and 4 were added to make failure to register a two-part process, with a misdemeanor and a felony. REPRESENTATIVE RYAN explained that they had discussed with a lot of people a provision for someone who perhaps wasn't intentionally or maliciously trying to duck registration. "And putting a person for two years for this, we acknowledge that may be perhaps a little stiff," he said. "And so, we made it a class A misdemeanor, first time, 90 days. You'll get the message. And a couple people get 90 days and word will get around, very quickly." REPRESENTATIVE RYAN continued, "After that, you've had sufficient notice, you've been registered by the court 30 days prior to release, you've had your photograph taken and your registration (indisc.) by Corrections, along with the new fingerprints and so forth. You know what's going on. Now if you don't want to 'fess up' and do what the law requires, then you have a class C felony, which, since you've already been convicted of one felony, has a presumptive sentence of two years." Number 0648 REPRESENTATIVE RYAN mentioned that he and Representative Croft had discussed possible consequences relating to the fiscal note from the Department of Corrections. He suggested that a ball park figure of five people a week would have to be incarcerated before the word would get around that the state is serious. Representative Ryan expressed his understanding that this legislation would make the state eligible for $200,000 in federal funds, which he didn't believe to be reflected in the fiscal note. He then advised members that Mr. Pree would explain the rest of the changes in detail. Number 0699 CHAIRMAN GREEN pointed out that the differences between Versions R and T actually begin in Section 3, on page 2 of Version T. MR. PREE agreed, indicating he had been including changes made since they took testimony at a previous hearing. He advised members that Version R, an intermediate version, had contained grammatical and spelling mistakes. He said they themselves had received Version T very recently, and he apologized. MR. PREE referred to Section 7 of Version T. He told members that beginning at page 3, line 31, and continuing through page 4, line 9, that is new language shortening the deadlines to the next working day. It was suggested by the Department of Corrections. Number 0820 REPRESENTATIVE PORTER referred back to Section 3 and requested an explanation of the difference between Version R and Version T. CHAIRMAN GREEN noted that it is an addition. Section 4 is the former Section 3. He then asked about the addition of Section 3 on page 2, lines 22 through 29, in Version T. Number 0885 REPRESENTATIVE RYAN explained that in Version R, the drafting attorney had added a sentence that the court may reduce or suspend the minimum term of imprisonment if the court finds the defendant's violation was not malicious. However, that had opened a can of worms because of the question of what is malicious. On reflection, they had decided perhaps that language didn't need to be there because it created too many problems. The intent is that it is up to the court to decide, without making esoteric judgments on what is malicious or not, and they are trying to make it as straightforward and plain as possible. "They either did it or they didn't," Representative Ryan added. Number 0930 CHAIRMAN GREEN stated his understanding that they had dropped that last sentence from Version R and had inserted a new Section 3, which refers to Section 4, the former Section 3. REPRESENTATIVE RYAN concurred. Number 0954 MR. PREE told members the next change, for clarity, is on page 9, line 5, which adds "registration or change of address" between the words "receive" and "information." The next change following that is on page 10, lines 1 and 2, which adds the language, "physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers." Mr. Pree explained that "vehicle identification numbers" is the change here. The language in their model had referred to another terminology, and they had made this change after being informed that "vehicle identification number" is the proper terminology in Alaska. Number 1047 MR. PREE referred to page 12. On line 15, they had added, "(4) the central registry of sex offenders and child kidnappers." And on line 24, they had added the word "verification." Mr. Pree said he believed those were all the changes since the last time they were before the committee. Number 1066 REPRESENTATIVE BUNDE said he had a philosophical question. Suggesting that it may be fair to say that the initial sex offender registry law hasn't been working, he asked whether the sponsor contends that by changing to a felony, with facing two years in prison, this will begin to work better than in the past. Number 1096 REPRESENTATIVE RYAN affirmed that. He then referred to the statistic of 3,300 offenders, of which 1,600 are registered and 30 percent of those are not in compliance. While the state doesn't necessarily have to throw them all in prison for two years, he said he believes that the hammer of the presumptive two-year sentence will be a motivating factor to make these people comply with the law. He indicated that the compliance is what they are trying to accomplish, not only relating to federal statutes but also to the right of people in the communities to know. REPRESENTATIVE RYAN advised members that in first doing research on this bill prior to last summer, they began looking at the printed list of people. He had found that about 150 were within a mile of his own home; having a nine-year-old son, that didn't make him feel too comfortable. Furthermore, when they went down the addresses listed, they found mail drops and business office buildings where they knew these people didn't have residences. Representative Ryan stated that not only were people not complying, but they were skirting the law by giving false information. REPRESENTATIVE RYAN said discussions with people in the law enforcement community and with social workers, psychologists and others have indicated that bringing light on these people can render them fairly harmless. Only when they are allowed this do they start doing the things they do, and we get the serious problem of a child winding up seriously injured, emotionally scarred or dead. Representative Ryan said it isn't what these people do but what they are, and that their brains are wired a bit differently. He suggested the courts need the tools necessary to enforce compliance. Number 1210 REPRESENTATIVE RYAN next referred to testimony about people who are picked up, registered by the police, then set free when the court asks whether they are now registered. He indicated someone from the Office of the Attorney General had told them recently they had begun prosecuting those. However, Representative Ryan pointed out, the original law was passed in 1991 or 1992, and they are just starting in now. He suggested perhaps the whole system hasn't been as focused as it should be. Number 1247 CHAIRMAN GREEN referred to the questions of double jeopardy and whether a class C felony is unduly harsh by some standards. He asked whether Representative Ryan wished to address those issues, noting that Anne Carpeneti and Jayne Andreen were available to answer questions. He further asked whether there is any indication that moving this into the class C felony category will have the desired effect. He added that he himself subscribes to that. Number 1306 REPRESENTATIVE RYAN replied that casual conversations with people in this field indicate the feeling that it would be a very good tool and would force compliance. He added, "You know the old saying, 'If it's not broke, don't fix it.' Well, it obviously is broke." Number 1332 CHAIRMAN GREEN asked whether any information from other jurisdictions implies that moving in this direction would, in fact, help. REPRESENTATIVE RYAN deferred to Mr. Pree. MR. PREE replied that Washington has moved away from treatment to harsher, stiffer penalties for the offense, because their treatment programs aren't working. CHAIRMAN GREEN asked whether people are complying in better numbers under the new regime. MR. PREE said it is too early to tell. Number 1375 REPRESENTATIVE BERKOWITZ said he wanted to make sure they were comparing apples with apples. He asked whether Washington law enforcement is at adequate levels, as opposed to our law enforcement. He added that according to some police standards surveys he has seen, the Alaska State Troopers are 50 percent below recommended levels. MR. PREE answered that he doesn't know their staffing levels. Number 1396 REPRESENTATIVE RYAN requested that Mr. Pree tell members what they do in Oregon as far as signs. He added that he doesn't propose this. MR. PREE informed members that in addition to the types of things in HB 252, in Oregon they have passed other rules. For example, a sex offender has been required to post a red sign that says, "Stop, sex offender lives here," with a telephone number for the department of corrections posted on the person's place of residence. He indicated that communities are getting very serious about this. CHAIRMAN GREEN asked whether that is statewide or just in a jurisdiction of Oregon. MR. PREE answered that he didn't believe it was statewide. Number 1442 REPRESENTATIVE JEANNETTE JAMES referred to the fiscal note and asked about the $200,000 offset from the federal government. REPRESENTATIVE RYAN stated his understanding that if this passed, they would be eligible for $200,000 in federal funds, which would offset the $437,000. He indicated that amount from the Department of Corrections is for incarcerating six prisoners. REPRESENTATIVE JAMES asked about the status of legislation from the previous year that addressed identification of sexual predators, allowing them to be kept incarcerated or in some sort of seclusion, provided that they were evaluated to be repeat offenders. Number 1525 REPRESENTATIVE RYAN replied that he has a companion bill that deals with that, which because of the single-subject title had not been combined with HB 252. He explained the other bill. Number 1581 REPRESENTATIVE JAMES said she struggles with the class C felony for failure to register on two points. First, there are 1,600 or 1,700 who haven't registered, and she isn't sure the fiscal note will cover it. She asked how they will find these people. She further asked whether Representative Ryan anticipates that the penalty would result in a half-dozen people being picked up, which would result in the others coming into line. REPRESENTATIVE RYAN replied no, that that is more for enforcement, to let people know there is a penalty. He added, "But we do realize, too, that there's an educational process that's going to have to be done in this area." He said that is why the first time, it is 90 days. REPRESENTATIVE RYAN indicated they had received testimony from people in the Matanuska-Susitna area who said these people hang around together and swap stories on how they entice children. Representative Ryan expressed certainty that in that community, word will get around about passage of this bill. He said he didn't want to add a greater fiscal note and put more responsibility on departments to notify these people, noting that ignorance of the law is no excuse for lack of compliance. He mentioned the current one-third compliance and suggested that if they don't want to take stronger action and force compliance, they might as well repeal all the laws on it and not have any registration. Number 1670 REPRESENTATIVE JAMES commented that she is sensitive to this issue. She suggested that putting up a sign, as in Oregon, may be as destructive to the community as anything else, because of the perception and the fear put into the community; no one will want to live there, and property values will drop, for example. Representative James specified that she wasn't saying this because she opposes HB 252. She suggested that instead of making stronger penalties, they should figure out a different way to make sure these people don't offend again. She said she doesn't know that registration will stop these people. Number 1764 REPRESENTATIVE RYAN said he doesn't know that it will stop them, either, but if he knew how to cast a smaller net, he would address it in the bill. He is basically concerned with pedophiles and their behavior. As an example, he referred to an Internet printout for a Chico Rodriguez, listed as of 1/29/1998 as "not in compliance," with five related aliases provided and a two-page list of convictions including sexual abuse of a minor and sexual assault. Representative Ryan suggested that perhaps such a person would choose not to register because if people knew his whereabouts, they could look out for him. REPRESENTATIVE RYAN said other than what he has tried to put together with HB 252, he doesn't know a solution, either. He expressed hope that the bill will alleviate some of this or, if not, that offenders will go to jail so society won't have to worry about abuse of a minor. REPRESENTATIVE JAMES agreed with the goal but said she doesn't think this will do it; she believes that fellow should never be out, free to have to register. "He should be somewhere else, where he can't be getting to the public; that's my point," she concluded. Number 1888 ANNE CARPENETI, Assistant Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law, came forward, clarifying that the state already receives the $200,000 in federal Byrne funding referred to earlier by Representative Ryan. That is in jeopardy if the state doesn't amend its laws to comport with the Wetterling Act [Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act], one reason that the Administration introduced bills the previous year on sex offender registration; in addition, there are good reasons to make amendments in the area of sex offender registration. "But it's not money that we're going to get if we pass it; it's money that we will lose if we don't change our laws to comport with the Jacob Wetterling Act," Ms. Carpeneti concluded. Number 1916 CHAIRMAN GREEN asked Ms. Carpeneti to address double jeopardy. MS. CARPENETI said Mr. Pree was correct, adding, "We haven't lost a double jeopardy challenge yet to sex offender registration ... for convictions that occurred before the date of the Act." REPRESENTATIVE BERKOWITZ asked for confirmation that it has been challenged, and he asked what the court's ruling was. MS. CARPENETI replied that she would like to get more information for the committee. She told members she relies on an attorney in the department's Office of Special Prosecutions and Appeals (OSPA). Ms. Carpeneti said, "And when I called him, he said we're doing okay. It has been challenged in federal court, I believe, ... and we haven't lost." Number 1947 REPRESENTATIVE PORTER asked whether the four or five concerns of the Department of Law, brought out at the last meeting, had been fixed. MS. CARPENETI said although she had just received Version T, a brief review indicated the department's suggestions were adopted. Number 1966 REPRESENTATIVE PORTER said he recognizes that there are 1,500 or 1,700 unregistered offenders. He asked whether there is some indication that may not be the whole picture. MS. CARPENETI said yes. First, they don't know whether those people are still in the state; if not, they have no obligation to register and are not out of compliance. She reported that one of the main sections that the Administration suggested, which has been included, allows the state to put on the central registry information received from other sources besides an individual going in and registering. Sources include court judgments and APSIN [Alaska Public Safety Information Network]. MS. CARPENETI said the bill also makes it clear that it is the responsibility of the sex offender to clear his or her name, if that is somehow in error. For example, if a person who left the state is on the registry, that person could prove to the satisfaction of the DPS that there is no obligation to register and thus get the name removed. However, the department doesn't have to go out and figure out where so-and-so is, whether he or she still has to register, or whether that person's date of registration has passed. Number 2030 REPRESENTATIVE PORTER asked if Chico Rodriguez is really missing. MS. CARPENETI said she'd just been informed that he is in custody. CHAIRMAN GREEN asked: If someone like Mr. Rodriguez was in violation for not registering for three years and was picked up for a traffic violation, for example, how would the penalty be handled? MS. CARPENETI inquired whether he was asking how many charges would be brought. CHAIRMAN GREEN affirmed that. MS. CARPENETI said that is a good question. She added that she supposed they could really stack on a lot of charges for every year of failure to register. CHAIRMAN GREEN suggested jokingly that perhaps they could in this way comply with Representative James' concern. Number 2093 REPRESENTATIVE NORMAN ROKEBERG referred to Section 6, which defines the scope of serious offenses. He requested an analysis of "how this fits into this legislation by what appears to be expanding the scope of what's called serious offenses." MS. CARPENETI replied that it doesn't expand it very much but reorganizes the statute. She explained, "Already felony offense is included; it's just included in the prose section, or the introduction section, rather than in the letters. And a crime involving domestic violence is not an addition; it's already there." Number 2131 REPRESENTATIVE ROKEBERG asked whether contributing to the delinquency of a minor, now in subsection (d) on line 20, would be involved as a sexual offense for the purposes of this bill. MS. CARPENETI said no. This section amends AS 12.62 and deals with what information about an individual the DPS can release to an individual who is inquiring because he or she wants to hire that person to work with children or vulnerable adults. Ms. Carpeneti stated, "And that is not even an addition. As you look on line 20 of Version T, that offense is already included." She added that she believes it was just an edit, because she didn't think there were one through three paragraphs in that particular section. REPRESENTATIVE ROKEBERG pointed out there are four, with subsection (3) being skipping school; he suggested that isn't germane to what they're talking about in terms of sex offenders. MS. CARPENETI agreed. Number 2199 REPRESENTATIVE ROKEBERG expressed concern about Megan's Law and the Wetterling Act. He asked whether, for example, indecent exposure is included as a sexual offense. MS. CARPENETI said if it is a felony offense, yes. She added that it is presently included as a sex offense under AS 12.63. REPRESENTATIVE ROKEBERG commented that he would assume it is at the bottom of the list as far as harm to the community. He asked what are included as sex offenses. Number 2261 MS. CARPENETI suggested that page 8 of Version T might be helpful. She explained that AS 11.41.410 through AS 11.41.438 are basic sexual assaults and sexual assaults of a minor; AS 11.41.450 is incest; AS 11.41.455 is unlawful exploitation of a minor under age 16; AS 11.61.125 is promotion of prostitution; and AS 11.66.110 is distribution of child pornography. Ms. Carpeneti said the former sections that are included are various former versions of sexual assault before the (indisc.--papers over microphone) bill was adopted. REPRESENTATIVE ROKEBERG asked whether they are adding a new definition of an aggravated sexual offense. MS. CARPENETI replied, "Right. And the reason for that is to comply with the Jacob Wetterling provision, in addition to that it's a good idea. Right now, our present law requires recidivous sex offenders to register for life. ... This bill requires people who are convicted for the first time of sexual assault in the first degree - which is basically rape - and sexual abuse of a minor in the first degree to register for life. And that is an attempt to comply with the Jacob Wetterling Act." Number 2321 MS. CARPENETI explained that the Wetterling Act wants the states to set up boards of experts in sexual offender behavior, sentencing and treatment. The Act envisions that the states will appoint these boards to examine people who are convicted of a sex offense, to do a psychiatric or psychological exam and then to make a recommendation to the sentencing court as to whether that person is or is not a predator. If they make that recommendation and the sentencing court agrees, the person is considered a predator and must do the various things that predators must do under the Wetterling Act, which is basically verify their address every 90 days. It also allows for the sex offender to come back and ask the board to reconsider whether or not he or she is a sex offender, and then to go back to the same sentencing court to try to convince that judge that he or she is no longer a sexual predator. MS. CARPENETI informed members that Alaska's approach, to which she believes some other states are agreeing, is to treat recidivists who have had a chance to reform but to no avail, as well as people convicted of the most serious offenses, as if they are predators, requiring verification of address every 90 days. That is the protection the Wetterling Act provides relating to that group. Ms. Carpeneti indicated they can thereby avoid having this board, which would entail problems such as whether people can actually say if a sex offender will not reoffend and is no longer dangerous. She also noted the expense of litigation as to whether a person is an offender, and then deciding whether, forever, the person is no longer a predator. Number 2394 REPRESENTATIVE ROKEBERG asked whether it is possible, under the bill as drafted, that a person who committed the crime of indecent exposure and failed to register would be committing a felonious act. MS. CARPENETI requested a statutory citation. REPRESENTATIVE ROKEBERG said it is AS 11.41.460. MS. CARPENETI answered that it is not included in the definition of sex offense in HB 252. Number 2418 REPRESENTATIVE ROKEBERG asked what the least egregious offense is relating to this. MS. CARPENETI said it is AS 11.41.440, a misdemeanor, sexual abuse of a minor in the fourth degree, where the offender is over 18, the victim is under 18 and three years younger, and where there is a relationship of authority, such as a teacher. She said that is the only misdemeanor in this bill. REPRESENTATIVE ROKEBERG asked whether statutory rape still exists without the authority provisions. MS. CARPENETI replied that what used to be statutory rape is included in sexual abuse of a minor. REPRESENTATIVE ROKEBERG suggested that a person must be in a position of authority or live in the household "in various degrees." He asked whether it is true that an offense stemming from a person over 18 having a sexual relationship with someone under 18 no longer exists in Alaska's statutes. [Ms. Carpeneti's reply was cut off by the tape change. According to the log notes, she indicated it depends on the relationship and that the age of consent is 16 in Alaska, unless the relationship of the minor is with a person such as a coach or a teacher.] TAPE 98-17, SIDE B Number 0006 REPRESENTATIVE ROKEBERG asked, "So, we don't have old-fashioned statutory rape?" MS. CARPENETI replied that it still is illegal to have sexual contact with a person under age 16; sexual penetration is still a sexual abuse. She added that the age difference can affect the severity of the offense. REPRESENTATIVE ROKEBERG suggested that a person who committed statutory rape would be a sex offender. MS. CARPENETI agreed, saying that if a person over 18 had a sexual relationship with somebody under 16, that would be sexual abuse of a minor, which would require registration. Number 0041 CHAIRMAN GREEN referred to page 8, line 18, and suggested that is why it says "16 or 17", because a person younger than that would be protected under other statutes. MS. CARPENETI said that is for prostitution. If a person is under age 16, it is already covered in the bill. She indicated that is also a requirement of the Wetterling Act. Number 0052 REPRESENTATIVE BUNDE stated his understanding that HB 252 would meet the federal requirements that will keep the $200,000 [Byrne funds] coming. MS. CARPENETI replied, "I believe so, yes." She said she has spoken to people in Washington, D.C., on a number of occasions, who are unwilling to say yes, to guarantee that. Ms. Carpeneti explained, "The Wetterling Improvement Act [Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Improvement Act], which was passed in the budget bill last year, actually made it easier for states to comply, but they haven't adopted guidelines, and they're not willing to say, 'Yes, you will comply.' But I believe we are in a very good position to comply with Wetterling, with this approach." REPRESENTATIVE BUNDE mentioned the size of the fiscal note and that it will not be offset by the $200,000. He asked whether, now that this will be a felony, there will be heightened enforcement even though they are not providing more police officers. MS. CARPENETI suggested the DPS could answer that better. She agreed it is human nature to do that. Number 0144 REPRESENTATIVE BUNDE mentioned people who travel outside Alaska and then come back. He asked how long a person has, after arriving back in Alaska, to come into compliance. MS. CARPENETI said it is the next working day. Number 0185 REPRESENTATIVE BUNDE referred to discussion about not knowing how many of the 1,600 people have left the state. He asked whether they do a match with the permanent fund dividend list, pointing out that anyone staying in Alaska would hang on to that money. MS. CARPENETI said that is a good question to which she doesn't know the answer. Number 0206 CHAIRMAN GREEN asked whether there is a concern that this might work in reverse, that the more serious offense may result in more plea bargaining, for example. MS. CARPENETI asked whether he meant a sex offender would go farther underground to avoid detection. CHAIRMAN GREEN said either that or a plea bargain down from the charge. He mentioned plea bargaining relating to driving under the influence, which he called horrendous. MS. CARPENETI agreed there is a possibility that a charge might be plea bargained; she added that prosecutors have the interests of justice and the state when they do that. She said it could possibly be reduced to a class A misdemeanor under certain circumstances. However, in this bill, a class A misdemeanor still requires a mandatory 90 days in jail. Ms. Carpeneti said she believes the tool would be there for prosecutors in serious cases to proceed with a C felony, and she assured Chairman Green that she thinks these will rise to a serious consideration by the state. Number 0301 REPRESENTATIVE BERKOWITZ asked whether Ms. Carpeneti had given any thought to the state's exposure in terms of liability resulting from false listings, for example. MS. CARPENETI replied that she had given it some thought. She suggested that perhaps, as they do in other sections such as for the domestic violence central register, they should consider making it clear that a mistaken entry does not (indisc.--coughing). REPRESENTATIVE BERKOWITZ responded that he wasn't going to go in that direction but had wanted to make Ms. Carpeneti aware of it. He added that he believes that if the state does falsely list somebody, the state should be responsible. Number 0306 REPRESENTATIVE BERKOWITZ raised the question of adequate resources being given to prosecutors and law enforcement to address the underlying problem, which is failure to register, and to ensure public safety. He asked, "If the Department of Law had more prosecutors, would you, under the current statutory scheme, be able to better enforce ... the law regarding registration?" MS. CARPENETI replied, "I assume if we had more prosecutors, we could do a better job in all areas." Number 0334 REPRESENTATIVE JAMES asked whether Alaska has any kind of cooperation with other states. She said she was thinking of someone from Alaska who leaves the state, making people elsewhere vulnerable, and/or someone coming from another state, which Alaskans don't know about. She requested an explanation of how those issues are addressed in current law. MS. CARPENETI replied, "The current law requires the offender to notify Public Safety if they plan to leave the state, ... and to tell us where they're going, and we will notify the -- if there is an office that registers sex offenders in the new state, to notify whatever public agency does that." Number 0382 REPRESENTATIVE JAMES pointed out that people who didn't register and went out of state may not be in compliance, even though they have left the state. MS. CARPENETI agreed, adding that if they hadn't told the state they are leaving, they are certainly not complying with what the law requires. Number 0400 REPRESENTATIVE ROKEBERG asked, "How can we meet Wetterling without spending as much money? Is there a way we can do that, to avoid this fiscal note in this bill?" MS. CARPENETI answered that the Wetterling Act requires that failure to comply with the sex offender registration provisions should be a crime, but it doesn't specify that it must be a felony offense or talk about how the state must prosecute people who don't comply. She suggested that may be an area to look at. Ms. Carpeneti pointed out that using the idea of an aggravated sex offense, and requiring people who are dangerous to register for life, will save money in the long run by avoiding the expert panels. REPRESENTATIVE ROKEBERG asked whether the state is out of compliance with the Wetterling Act now, as far as making failure to register a crime. MS. CARPENETI explained that the state is out of compliance with some provisions now, but this summer they received an extension of time from the federal government; the original deadline was September 1997. She added, "But, like other states, we're working on it, but we haven't quite made it yet. So, they gave us a couple years more to comply." Number 0465 REPRESENTATIVE ROKEBERG said they had "sleuthed down" that statutory rape exists and is in the bill as a sex offense. MS. CARPENETI said that is correct. REPRESENTATIVE ROKEBERG asked whether the Wetterling Act or Megan's Law requires that to be in it. MS. CARPENETI specified that the Wetterling Act requires that to be in here. She added, "It's already in here because it's a serious sex offense." Number 0488 REPRESENTATIVE ROKEBERG asked, "You mean, if somebody is three years older than the other person and they have an act of sexual intercourse, that's a sexual offense for federal law now? Is that what you're saying?" MS. CARPENETI replied that she doesn't know that it is against the federal law to do that. She stated, "Wetterling requires us to register people who victimize people under 18 years old - children - in numerous ways, one of which is to sexually abuse them." Number 0505 REPRESENTATIVE ROKEBERG referred to AS 11.41.438 and said it seems that sexual abuse of a minor in the third degree doesn't have the position of authority involved, just the three-year age spread. MS. CARPENETI said that is a C felony, and every offense covered under AS 11.41.438 requires registration by a person convicted of that offense. What she was talking about before, as the misdemeanor offense that is in the bill, is in AS 11.41.440(a)(2). Number 0540 REPRESENTATIVE ROKEBERG suggested that requires the position of authority in the fourth degree, but not necessarily in the third degree, as the statute is drafted. MS. CARPENETI responded that it is sexual penetration. In AS 11.41.440, it is sexual contact. The act is different. REPRESENTATIVE ROKEBERG asked, "Sexual contact is defined that way?" MS. CARPENETI said sexual contact is defined in AS 11.81, in the general definitions section. REPRESENTATIVE PORTER commented that penetration has always been required in statutory rape. REPRESENTATIVE ROKEBERG said in fourth degree contact, it is not. REPRESENTATIVE PORTER said it is fondling. Number 0596 REPRESENTATIVE ROKEBERG responded that his point stands: Someone three years older than a 15-year-old would be brought into the net of sexual offenses in the state. Number 0637 REPRESENTATIVE BERKOWITZ mentioned that he'd been trying to find the citation for what he recalls was a violation of conditions of release in Title 11 or Title 12. He said it seems that if a sex offender is required under the terms of probation to register, currently failure to register would constitute a violate of the conditions of release. He suggested the state is in compliance with the Wetterling Act as the situation now stands. MS. CARPENETI indicated she wasn't familiar with that section. She said she doesn't believe it is a separate crime to violate conditions of release, although she could be mistaken. Number 0637 REPRESENTATIVE BERKOWITZ said he would try to find the section. As he recalled, it was a corollary of contempt of court. MS. CARPENETI told Representative Berkowitz she would like to talk about that afterwards. She restated that as far as she knows, it is not a separate crime to violate conditions of release. She noted that it is certainly a basis for getting a person back into court and back into jail, if there is suspended time. Number 0672 REPRESENTATIVE PORTER asked how long a sexual offender must continue to reregister and whether it relates to a matter of degree. MS. CARPENETI answered, "For 15 years from the date of unconditional release, which is the date that all time that we have - all power we have - over that person is gone - no conditions of release, no parole conditions - when we lose any power over that person as a state, then they have 15 years beyond that to register." CHAIRMAN GREEN asked whether that is 15 total years, not 15 years in Alaska necessarily. MS. CARPENETI explained, "This bill provides that ... if the person complies with the sex offender registration statute outside, and shows us that he or she has, then that can count for the 15 years." She advised Representative Rokeberg that she had located the definition of sexual contact, AS 11.81.954, for all the sex offenses. Number 0758 BRUCE RICHARDS, Program Coordinator, Office of the Commissioner, Department of Corrections, came forward to clear up matters regarding the fiscal note. Written for a previous bill version, the fiscal note was based on the straight C felony, using information from 1996, when 22 admissions resulted in six people actually doing time. "I'm not sure if the other ones were dismissed if they registered right away, but I know we had six," Mr. Richards added. MR. RICHARDS said he had received new information that indicates more people are coming in now under the current statute. It is his understanding that the DPS is stepping up efforts to locate these people, and according to the numbers in the state's institutions, it is working. He emphasized the difficulty of putting a number on this; he has no idea how many people the DPS will round up, nor how many are still in the state. Referring to Representative Bunde's question about checking against the permanent fund dividend list, Mr. Richards said he understands that the DPS now has a person doing that, who has been successful in finding some of these people. MR. RICHARDS suggested with six people incarcerated, the fiscal note would probably go down, because not all the convictions would be for felonies. However, the numbers are going up because of increased efforts. To determine the numbers for the fiscal note, they have been talking with Department of Law personnel about expected prosecutions, checking Department of Corrections records, and taking into account the increased efforts of the DPS to find these people. Mr. Richards told members he had planned to testify at the previous hearing but had to go to another meeting at 3 p.m. that day. He said he would do his best to provide a fiscal note for Version T. Number 0896 MR. RICHARDS mentioned that Mr. Rodriguez is not in compliance because he is currently in custody and has been in custody. Mr. Rodriguez was sentenced to a very long term, years ago, and had his sentence reduced through a three-judge panel a couple of different times. "And so, he did come up for release recently, last summer," Mr. Richards explained. "We were very concerned about the release of Mr. Rodriguez. We went through extra-special steps to make sure that he got registered and watched him very carefully. And he did make a mistake, right away, and he is now back in custody. He's going to have to serve out ... the remainder of his good time, if you will. But we held him till the last minute that we could possibly hold him ... under law, had to let him go, under supervision, and watched him carefully, and were able to bring him back in ... when we saw there was some problems. So, I wanted to clear that up, as well." Number 0948 CHAIRMAN GREEN asked whether the Department of Corrections would treat two offenders, one with a class A misdemeanor and one with a class C felony, differently, or whether people are treated differently for different offenses. MR. RICHARDS answered that following the trial, a prisoner is classified based on security risk. He explained, "They're run through a matrix, and we decide what their security risk level is. A misdemeanant can be a really bad guy, previous history, may have been a real bad felon a long time ago and have a long record of that." Mr. Richards emphasized that it is not solely dependent upon the current crime but involves the person's history and scoring of the matrix. For example, a misdemeanant in prison can be in maximum custody, maximum security, which they call "max/max." And while a C felon would probably start out with a high classification level, that can be lowered, based on behavior in the institution and scoring on the matrix. Mr. Richards said he believes it is every six months that prisoners go through a classification review. CHAIRMAN GREEN suggested this bill doesn't really affect that. MR. RICHARDS replied, "Their treatment? No." Number 1039 REPRESENTATIVE JAMES referred to the fiscal note and to Mr. Richards' indication that more people are now being picked up for noncompliance. She asked whether this bill will actually give the department authority to hire more people. MR. RICHARDS replied, "We have not been getting new staff people. We're putting more people into the same space. Our current staffs are working overtime. These costs that are in here are based on the ... average daily cost of care for our inmates. And so, the money goes towards overtime, food, clothing, all the things ... that an inmate requires." He indicated that while money could be spent on staffing, it is not broken out that way. The fiscal note applies to all components, because it is so difficult to break those out when dealing with inmates and the many different costs. Number 1120 REPRESENTATIVE JAMES asked whether it is proper to move the bill with the attached fiscal notes but with a notation that this one needs to be redone. Number 1154 MR. RICHARDS explained that it has normally been the practice of the Administration that when a new committee substitute is introduced and moved out of committee the same day, they provide a fiscal note to the present committee, which then forwards that along with the bill. They try to provide that fiscal note right away. Mr. Richards assured members he would look at the information again and do the best he could on the fiscal note, adding that he is certain this will be an issue in the House Finance Standing Committee, as well. Number 1179 REPRESENTATIVE ROKEBERG asked whether Mr. Richards believes the fiscal note will go down. MR. RICHARDS said he is not sure. The fiscal note had been based on 1996 information, and he had just received the 1997 information. If they were all felonies, the number would go up. However, with the two-tiered system that includes a class A misdemeanor with a minimum of 90 days, he doesn't know how many people will be felons or misdemeanants. He said he would work with the Department of Law and the DPS to get the best estimate, but it could go either up or down. Number 1227 REPRESENTATIVE ROKEBERG pointed out that the greater enforcement, or the fact that more people are found out of compliance, has nothing to do with this bill; it has to do with the prior legislation and either enforcement or other factors. MR. RICHARDS replied that the real cost in this bill is in the class C felony, which is not in current law. Number 1258 REPRESENTATIVE JAMES made a motion to move HB 252, Version T [0- LS0818\T, Luckhaupt, 2/13/98], from committee with individual recommendations and attached fiscal note(s). Number 1270 REPRESENTATIVE BERKOWITZ objected, saying it was to climb on a soapbox for a second. He agreed with what the sponsor is attempting to do with this legislation. However, while they hadn't heard from the DPS, comments from the Department of Law and the Department of Corrections highlight why the legislature must concoct a bigger legal hammer, which is because of the chronic underfunding to those departments. REPRESENTATIVE BERKOWITZ told members that having been in the realm of the criminal justice system, he can assure them that to the people who have to make that decision, "plea bargain" is not a dirty word. It is a necessity arising from the need to pick and choose between types of cases. He explained, "As a prosecutor, I have to determine, 'Am I going to go to trial on a C felony and hold an officer in court for the week or so that it'll take to ... be in court? Or am I going to roll it through on an A misdemeanor, and get them on something more serious later on?' Usually, it's not much of a choice. You make the deal because you have a scarcity of resources, and you have to balance what the best interests of public safety are. So, a lot of the decisions about sex offender registration, or about any other crime, are predicated on the need to make the best and highest use of the limited resources that are available." REPRESENTATIVE BERKOWITZ submitted to majority members that it wouldn't take a great deal of additional resources for the Department of Law and the Department of Public Safety to bring on board the personnel necessary to run the system the way it should be run. He stated his belief that it would have huge dividends in terms of public safety and public confidence in the system. Number 1364 CHAIRMAN GREEN commented that he appreciates that, one reason he had asked about plea bargaining. He stated his understanding the response from the Department of Corrections was that they look at a person's history and so forth, rather than necessarily the charge. Number 1375 REPRESENTATIVE PORTER said to balance that out, it goes without saying that any law enforcement agency, prosecutor's office, court system or corrections official would say, "If I had some more money, I could do a better job." At some point, they must draw the policy line as to how much to spend. He pointed out that an officer would not likely be held in court for a week on a felony charge under this, because an officer would make the arrest but not substantiate the evidence necessary for conviction, which he suggested would be done by a clerk at the DPS. REPRESENTATIVE PORTER stated, "The vast volume of this 1,500 or whatever people out of compliance right now came out of Corrections and then were required themselves to go back, some of which didn't because they thought that the issue was still under litigation in the court system. And now that's cleared up, plus the fact that they're going to be registered by Corrections before they leave. So, I think that that number is going to go down considerably. And I think it's going to be helped considerably by the fact that this piece of legislation is going to provide some pretty good motivation." Number 1441 REPRESENTATIVE ROKEBERG suggested the bill is a reaction to an unfunded federal mandate that the state is being pushed into. He said the fiscal note is of supreme importance and that without some surgery the bill wouldn't make it through the process. He told members he has problems with not the concept of Megan's Law and its follow-up in the Wetterling Act, but with the way it is being administered. Representative Rokeberg indicated that constituents and others have told him that this "Scarlet letter" that people wear for the 15 years may not be entirely fair in many instances, which concerns him. He said it is not this bill, but it has to do with this whole subject. "When you bring this subject up, you've got to take the heat on everything, you know," he added. REPRESENTATIVE ROKEBERG mentioned other legislation and that some people in the real estate business are confronted with unintended consequences relating to Megan's Law, the Wetterling Act, and the questions of agency and disclosure. He expressed concern about the higher standards, escalating costs, and the fact that these other concerns are not being accommodated. He said he wouldn't hold the bill up in committee but that under its present structure, he couldn't vote for it on the floor. Number 1581 CHAIRMAN GREEN asked whether Representative Rokeberg was talking about breaking a fiduciary relationship. REPRESENTATIVE ROKEBERG said it is a lawsuit waiting to happen. There is a national debate about what should be done in that business segment. Depending on circumstances and one's duty to the buyer and seller, a person could be in an impossible position relating to disclosure of information. Number 1645 REPRESENTATIVE JAMES suggested it is probably not the only area that will be affected. Number 1660 REPRESENTATIVE BERKOWITZ withdrew his objection. Number 1671 CHAIRMAN GREEN asked whether there was a further objection. There being none, CSHB 252(JUD) [version 0-LS0818\T, Luckhaupt, 2/13/98], moved from the House Judiciary Standing Committee.
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