Legislature(1999 - 2000)

03/22/1999 01:08 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS                                                                                  
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN announced the next order of business is                                                                 
CSSB 3(RLS), "An Act relating to the crimes of murder, solicitation                                                             
to commit murder in the first degree, conspiracy to commit murder                                                               
in the first degree, manslaughter, and criminally negligent                                                                     
homicide; relating to homicides of children; relating to                                                                        
registration as a sex offender or child kidnapper; relating to the                                                              
crime of interference with custody of a child or incompetent                                                                    
person; and providing for an effective date."                                                                                   
                                                                                                                                
Number 0330                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed House                                                               
committee substitute for CSSB 3, Version 1-LS0028\H, Luckhaupt,                                                                 
3/9/99 as a working document.  There being no objection, it was so                                                              
adopted.                                                                                                                        
                                                                                                                                
REPRESENTATIVE ROKEBERG explained the proposed House committee                                                                  
substitute raises the offenses to felonies and deletes misdemeanors                                                             
under AS 11.41 - page 3, lines 20-22.                                                                                           
                                                                                                                                
Number 0418                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked whether the sponsor agrees with the                                                                  
changes.                                                                                                                        
                                                                                                                                
Number 0432                                                                                                                     
                                                                                                                                
JULI LUCKY, Researcher for Senator Rick Halford, Alaska State                                                                   
Legislature, stated the sponsor agrees with the changes made to the                                                             
proposed House committee substitute.                                                                                            
                                                                                                                                
Number 0518                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to consider Amendment 1                                                                   
[1-LS0028\H.2, Luckhaupt, 3/12/99].  There being no objection, it                                                               
was before the committee.  It reads as follows:                                                                                 
                                                                                                                                
     Page 3, line 20:                                                                                                           
                                                                                                                                
          Delete "AS 11.41"                                                                                                     
          Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -                                                                       
          11.41.458"                                                                                                            
                                                                                                                                
     Page 3, line 22:                                                                                                           
                                                                                                                                
          Delete "AS 11.41"                                                                                                     
          Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -                                                                       
          11.41.458"                                                                                                            
                                                                                                                                
REPRESENTATIVE ROKEBERG explained the amendment excludes the crimes                                                             
of custodial interference in the first and second degrees.  The                                                                 
sponsor is lukewarm on the idea, so he thought it should be                                                                     
discussed by the committee.                                                                                                     
                                                                                                                                
Number 0588                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated "it" was already limited to a felony                                                                
and now this amendment takes out custodial interference as well.                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG stated custodial interference in the first                                                              
and second degrees is still a felony.                                                                                           
                                                                                                                                
REPRESENTATIVE CROFT stated all of the misdemeanors have already                                                                
been taken out and this amendment would take out a couple of the                                                                
felonious custodial interferences.                                                                                              
                                                                                                                                
Number 0616                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated "we" didn't want to delete Section                                                               
5 because it is an important fix for the Department of Law.  He                                                                 
said, "I guess my concern was, if you have--if you have a case that                                                             
come up with the DWI plus custodial interference makes you into--or                                                             
the--you have a death on a DWI death, it raises it to second-degree                                                             
murder.  And that's where I..."                                                                                                 
                                                                                                                                
Number 0659                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Representative Rokeberg, if her                                                                  
husband takes her kids to Turkey for six years and goes underground                                                             
with them, whether it would still be considered a felony.                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG replied not under the intent of SB 3.                                                                   
                                                                                                                                
Number 0711                                                                                                                     
                                                                                                                                
MS. LUCKY stated the amendment would take out felony custodial                                                                  
interference, as well as robbery in the first degree, robbery in                                                                
the second degree, extortion, and coercion.  She is not sure                                                                    
whether that is the intent of the sponsor of the amendment.                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated, if that's the case, it is a                                                                     
drafter's mistake.                                                                                                              
                                                                                                                                
MS. LUCKY further stated the proposed House committee substitute                                                                
took out custodial interference as a misdemeanor (custodial                                                                     
interference in the second degree), but left in custodial                                                                       
interference in the first degree - kidnapping one's own child and                                                               
going underground, for example.  A felonious custodial interference                                                             
in the first degree is usually charged to get a warrant for                                                                     
extradition.  Criminal negligence is not only drunken driving, but                                                              
shaken baby syndrome, abusing a child until its death, and starving                                                             
a baby.  This is exactly the type of person this bill is trying to                                                              
get - a history of abuse against children, acting recklessly                                                                    
towards children, taking a child against an order, or kidnapping a                                                              
child across state lines, and then through criminal negligence kill                                                             
another child through shaken baby syndrome or abuse.  That's the                                                                
type of person the bill is looking for.  It is her understanding                                                                
that somebody who takes a child on vacation would not be charged                                                                
with felonious custodial interference.  If somebody accidentally                                                                
killed that child through drunken driving, that would not fit into                                                              
the fact-pattern of this section of the bill.  The sponsor believes                                                             
that taking out custodial interference waters down this section of                                                              
the bill.  The sponsor is also concerned about the other sections                                                               
that the amendment deals with that are obviously a drafting error.                                                              
                                                                                                                                
Number 0891                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg which of the                                                              
numbers he didn't want in the amendment.                                                                                        
                                                                                                                                
REPRESENTATIVE ROKEBERG replied the amendment was intended for AS                                                               
11.41.320 and 11.41.330.                                                                                                        
                                                                                                                                
MS. LUCKY noted that AS 11.41.330 would have already been taken out                                                             
of the bill with the misdemeanor change.  The only substantive                                                                  
custodial interference change would be in AS 11.41.320.  The                                                                    
sponsor would want to include the following felony offenses:  AS                                                                
11.41.500, 11.41.510, 11.41.520 and 11.41.520.                                                                                  
                                                                                                                                
Number 0943                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG withdrew his amendment.                                                                                 
                                                                                                                                
Number 0978                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA made a motion to consider Amendment 2 from                                                              
the attorney general's office.                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG objected.                                                                                               
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN called on Anne Carpeneti from the                                                                       
Department of Law to explain the amendment.                                                                                     
                                                                                                                                
Number 1003                                                                                                                     
                                                                                                                                
ANNE D. CARPENETI, Assistant Attorney General, Legal Services                                                                   
Section-Juneau, Criminal Division, Department of Law, stated the                                                                
amendment would avoid costly litigation in the future.  It defines                                                              
"conviction" to include a person convicted of a sex offense then                                                                
given a suspended imposition of sentence (SIS) for that conviction                                                              
for the purposes of sex offender registration.  In 1994, when the                                                               
legislature adopted the sex offender registration Law, it went back                                                             
to 1980 to gather those who were convicted of a sex offense and                                                                 
required them to register for 15 years after their depravation of                                                               
parole was finished.  The Department of Public Safety defined                                                                   
conviction in regulation to include those convicted of a sex                                                                    
offense and given an SIS, but in 1988 the legislature changed the                                                               
law to forbid a court from giving an SIS to a person convicted of                                                               
a sex offense.  Looking back at the sentences imposed in the late                                                               
1970's and 1980's the courts gave SIS's to those convicted of a                                                                 
first-degree sexual assault, first-degree sexual abuse of a minor,                                                              
and less serious offenses.  An SIS was originally designed and                                                                  
practically imposed on people who have been convicted of less                                                                   
serious offenses, but the legislature found that sex offenders have                                                             
a higher rate of recidivism.  The amendment is being offered                                                                    
because two people have convinced the courts that they shouldn't                                                                
have to register and two other judges have found that they should                                                               
have to register under similar circumstances.  It would be helpful                                                              
to set it straight.                                                                                                             
                                                                                                                                
Number 1204                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN asked Ms. Carpeneti whether the amendment                                                               
would prevent the problem in the future or is it retroactive.                                                                   
                                                                                                                                
MS. CARPENETI replied it would define conviction to exclude SIS                                                                 
for all those who were given SIS's in the past.  It is not really                                                               
necessary for the future because the law prohibits the use of SIS's                                                             
now.                                                                                                                            
                                                                                                                                
Number 1225                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated they should have to register.  He is                                                                
uncomfortable with avoiding litigation, however.                                                                                
                                                                                                                                
Number 1236                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it includes all                                                             
levels of sex offenders, and what is the time period for the SIS's.                                                             
                                                                                                                                
MS. CARPENETI replied the sex offender registration law applied to                                                              
people who were convicted or still under legal obligations prior to                                                             
and after 1984.  If a person was free of any legal obligation and                                                               
condition before 1984, that person did not have to register.                                                                    
                                                                                                                                
Number 1282                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered whether there is a distinction                                                                 
between class A, B or C felonies.  These people are being swept up                                                              
in one big net.  He asked Ms. Carpeneti whether it is correct that                                                              
an SIS is not on a record after a certain period of time, if there                                                              
is no wrong doing.                                                                                                              
                                                                                                                                
MS. CARPENETI replied correct.                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether a person who                                                                
has already reached that person's agreed upon SIS terms would be                                                                
stuck on the sex offender registry after the fact.                                                                              
                                                                                                                                
MS. CARPENETI replied that person should have already been                                                                      
registered.  There isn't a distinction between the different                                                                    
felonies and how many people were given SIS's during that period of                                                             
time.  There were at least 200 people given SIS's between 1984 and                                                              
1988.  Some of whom were convicted of two sex offenses and given                                                                
SIS's.  One of whom was convicted of three sex offenses and given                                                               
an SIS for all three.  Some of them were first-degree sexual abuses                                                             
of a minor and second-degree sexual assaults.                                                                                   
                                                                                                                                
Number 1360                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether or not at that                                                              
time there were certain terms and conditions put on an SIS, and if                                                              
they were not met that person would go back to jail.                                                                            
                                                                                                                                
MS. CARPENETI replied yes.  Usually, a judge imposes conditions of                                                              
jail time, for example.                                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there would be                                                              
an instance where the full force of a conviction would have been                                                                
met and agreed to by both the state and individual that would get                                                               
trapped in this net.                                                                                                            
                                                                                                                                
MS. CARPENETI reiterated that they should have been registered this                                                             
whole time, according to the law as the Department of Law                                                                       
interprets it.                                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, isn't that the point                                                               
of the amendment?  Is there a split in the cases?                                                                               
                                                                                                                                
MS. CARPENETI replied two people have convinced the courts that                                                                 
they should not have to register.                                                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, because they paid                                                                  
their debt to society?                                                                                                          
                                                                                                                                
MS. CARPENETI replied there were a variety of reasons.                                                                          
                                                                                                                                
REPRESENTATIVE ROKEBERG stated he is concerned about an inequity.                                                               
He said, "It seems to me that it's who they're going to throw this                                                              
net out and capture--get if they've already in essence have                                                                     
completed their debt to society and all of a sudden because of the                                                              
retrospective aspect of the law, they're being asked to do                                                                      
something and then they've already completed their routine in which                                                             
their actual offense is lifted off the record, if that's if--if I'm                                                             
not mistaken."                                                                                                                  
                                                                                                                                
Number 1475                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN stated the intent is to get those people                                                                
anyway.  They slipped through because of a couple of liberal                                                                    
judges.                                                                                                                         
                                                                                                                                
Number 1487                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated she wants to get everybody on this list                                                             
who ought to be on it.  But, she finds it difficult to make                                                                     
legislation to change court cases.  She asked Ms. Carpeneti whether                                                             
anything will happen to those four cases.                                                                                       
                                                                                                                                
MS. CARPENETI replied they are on appeal.                                                                                       
                                                                                                                                
REPRESENTATIVE JAMES asked Ms. Carpeneti, if the law is changed                                                                 
with this amendment, will it affect their appeal.                                                                               
                                                                                                                                
MS. CARPENETI replied, "I hope so."  She hopes that the court will                                                              
be instructed to see the clarification in the law to require people                                                             
who were convicted in the 1980's and who were given an SIS to be                                                                
registered.                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked Ms. Carpeneti to explain how the                                                                     
amendment is a clarification as opposed to a change in the law.                                                                 
                                                                                                                                
MS. CARPENETI replied when the sex offender registration law was                                                                
passed in 1994, the legislature gave the Department of Public                                                                   
Safety the authority to adopt regulations to implement it.  As part                                                             
of the regulations, the definition of conviction included every                                                                 
finding of guilt that was not turned over by a court including                                                                  
pleas, and findings of guilt by a court or jury.  This amendment                                                                
takes that definition and puts it in statute.  It also includes an                                                              
intent section to clarify the confusion evident by the judges that                                                              
made those decisions.                                                                                                           
                                                                                                                                
Number 1608                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA noted that the person is still convicted.                                                               
For every change of plea that she has done, the person understood                                                               
that he/she was convicted, that they had an opportunity under the                                                               
SIS to go back, but the conviction still stood.                                                                                 
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN stated that person wouldn't be registered.                                                              
                                                                                                                                
REPRESENTATIVE KERTTULA replied at this point the courts are split.                                                             
The amendment is to clarify the conviction.                                                                                     
                                                                                                                                
Number 1656                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated AS 12.63.020 says if it's not an                                                                    
aggravated sex offense, it is only 15 years from the date of                                                                    
conviction.  If it's an aggravated sex offense, it is a lifetime                                                                
obligation, and in that case that person is caught in the net.  If                                                              
a person is clean for 15 years, then that person can drop of the                                                                
list.                                                                                                                           
                                                                                                                                
MS. CARPENETI stated, if a person does not check in with the                                                                    
Department of Public Safety or a police department every year to                                                                
update information in the registry, then that person doesn't get                                                                
credit for that year.                                                                                                           
                                                                                                                                
REPRESENTATIVE CROFT stated if a court has determined that they                                                                 
don't have to, then they wouldn't be charged for...                                                                             
                                                                                                                                
MS. CARPENETI said correct.                                                                                                     
                                                                                                                                
Number 1740                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what constitutes an                                                                 
SIS.  Would a conviction be removed from the books upon completion                                                              
of the conditions?                                                                                                              
                                                                                                                                
MS. CARPENETI replied when a SIS is imposed a person has to fulfill                                                             
the obligations that a court has imposed, but a conviction really                                                               
isn't removed from every single aspect.  "12.55.085 specifically                                                                
provides that you cannot get an SIS if you have a prior conviction                                                              
and it also provides that convictions in terms of that section of                                                               
whether--so whether or not you have a prior conviction includes                                                                 
conviction where you were given an SIS.  So, if you're convicted of                                                             
a theft as a young person and were given an SIS and provided--did                                                               
everything  you were suppose to do and got your conviction off the                                                              
record, and ten years later if you committed another theft, under                                                               
the law of SIS's the court could go back--has to go back and look                                                               
at that.  And, you can't get another one because conviction for                                                                 
purposes of law of SIS does not include an SIS provision."                                                                      
                                                                                                                                
Number 1851                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that Megan's Law has withstood                                                                    
constitutional tests at the U.S. Supreme Court level, but many                                                                  
states have a two tier system where the severity of a sex offense                                                               
is balance with the crime and the length time on a registry.                                                                    
Alaska doesn't have that.  Therefore, a sex offender convicted of                                                               
assault in the fourth degree is in the same boat of a sex offender                                                              
that committed assault in the first degree.  He takes exception to                                                              
that as a matter of public policy.  He asked Ms. Carpeneti whether                                                              
there would be a distinction in terms of severity when that net is                                                              
thrown back out.  He also asked Mr. Carpeneti whether the net would                                                             
be thrown back over offenders who have completed their conditions.                                                              
In addition, a person in that case would have to say that he/she                                                                
has never been convicted, but that he/she is on a sex offender                                                                  
registry when completing a job application, for example.  It is a                                                               
weird set of circumstances.                                                                                                     
                                                                                                                                
Number 1920                                                                                                                     
                                                                                                                                
MS. CARPENETI replied Alaska does have a two tier sex offender                                                                  
registration program.  People convicted of an aggravated sexual                                                                 
assault and kidnapping are required to register for life, even if                                                               
it a first offense.  People convicted of sexual abuse of a minor in                                                             
the first degree, and people convicted twice of any sexual offense                                                              
also have to register for life.  People convicted of other sexual                                                               
offenses have to register for 15 years.  In addition, she has never                                                             
believed that a person can answer truthfully about a conviction on                                                              
a job application, even if through an SIS that conviction has been                                                              
set aside.                                                                                                                      
                                                                                                                                
Number 1990                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the sponsor has any objection                                                             
to this amendment since it piggybacks SB 62.                                                                                    
                                                                                                                                
MS. LUCKY replied the sponsor does not have an objection to the                                                                 
amendment.                                                                                                                      
                                                                                                                                
Number 2038                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG withdrew his objection.                                                                                 
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN asked whether there is further objection.                                                               
There being none, Amendment 2 was so adopted.                                                                                   
                                                                                                                                
Number 2062                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move the proposed House                                                                
committee substitute for CSSB 3, as amended, from the committee                                                                 
with individual recommendations and the attached fiscal note(s).                                                                
There being no objection, HCS CSSB 3(JUD) was so moved from the                                                                 
House Judiciary Standing Committee.                                                                                             

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