Legislature(2003 - 2004)
03/30/2004 01:05 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 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE Number 1733 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal Procedure; relating to defenses, affirmative defenses, and justifications to certain criminal acts; relating to rights of prisoners after arrest; relating to discovery, immunity from prosecution, notice of defenses, admissibility of certain evidence, and right to representation in criminal proceedings; relating to sentencing, probation, and discretionary parole; amending Rule 16, Alaska Rules of Criminal Procedure, and Rules 404, 412, 609, and 803, Alaska Rules of Evidence; and providing for an effective date." [Before the committee, adopted as a work draft on 3/19/04, was a proposed committee substitute (CS) labeled 04-0033, 1/16/2004.] Number 1769 BARBARA BRINK, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), noting that she has been a public defender for more than 21 years, specified that the information she'd present wouldn't be in the order of her priorities. She referred to Section 5, paragraph (3), which read: (3) the violation occurs within the boundaries of a municipality or the perimeter of an established village that has adopted a local option under AS 04.11.490. MS. BRINK pointed out that this makes it a [class C] felony for a person to provide alcohol to a minor within the boundaries of a local option area. Although it's a policy call within the legislature's purview, she cautioned about the racially disparate impact on Alaska Natives, who are the people that live in areas that have established these local options. A 21-year- old may share a beer with a nephew who is 20 years old, for example; that suddenly would become a felony, and that person would be punished with a felony conviction and all the possible ways such a conviction can hurt somebody. MS. BRINK, in response to questions from Representative Gruenberg, specified that AS 04.16.051 has to do with furnishing or delivering alcohol to a person under the age of 21. Section 5 makes that a felony if it happens within a municipality or the perimeter of an established village that has adopted a local option. CHAIR McGUIRE clarified, "Meaning they're dry - or damp." She opined that if a village has made that public policy decision, it's more egregious for somebody to provide alcohol to someone under the age of 21. MS. BRINK said she understands, but asked whether it is so egregious that the desire is to make it a felony for someone in that village. She reiterated that those felony convictions will disparately impact Alaska Natives in the local option areas. Number 1943 MS. BRINK turned attention to Section 6, the forfeiture provisions. Referring to discussion at the last hearing about how forfeiture works, she affirmed that the police seize property or money first and ask questions later. She explained: Frankly, they seize everything on a person. So if my client is arrested and charged with sharing a beer, they will take all the money in his possession at the time he is cited or arrested and put that into the state's evidence locker. And it will be difficult for that person to get that money back. Not only can the state then forfeit it, but, frankly, a lot of times the prosecutor's office makes it a requirement -- if you want to work out a plea agreement or a settlement of the case without going to trial, the state will often require forfeiture of that property without a forfeiture proceeding, in order to give you any concessions on a charge (indisc.). MS. BRINK, in response to Representative Gruenberg on another topic, agreed to talk with him later and added that public defenders or advocates aren't the best experts on forfeiture because most of their clients don't have assets that are seized in forfeiture proceedings. Number 2014 MS. BRINK addressed Section 8, which amends the statutes on murder in the second degree [by removing "other than one of the participants" in two locations]. It makes a person guilty of murder in the second degree even if a participant in the felony crime was killed during that act. She offered her view that the policy, by not including the participant previously, has been that someone who engages in felonious conduct somehow assumes the risk that things could go wrong and therefore that person's life has been "valued less seriously." Ms. Brink said, "This section, which I don't have a whole lot of disagreement with, just makes it so a participant's getting killed during a felony [crime] ... can also result in felony murder charges." She noted that she'd bring up Section 8 later when discussing Section 13 because they seem a little inconsistent. MS. BRINK paraphrased new language in Section 9 [relating to committing the crime of assault in the third degree], which read: (4) with criminal negligence causes serious physical injury to another person by means of a dangerous instrument. MS. BRINK clarified that this is being moved from assault in the fourth degree, a class A misdemeanor, to assault in the third degree, a class C felony. She said she appreciates the desire to bring harsher consequences to those who are "drinking but are not under the influence of alcohol, but somehow are related in automobile accidents"; however, she suggested if that is the purpose, this bill is drafted far too broadly because nothing in this statute requires any alcohol to have been consumed. MS. BRINK predicted there'd be "unintended people falling under the rubric of this crime." She explained that the following examples could be felony-level conduct if there were an accident: failure to see a stop sign, not seeing black ice on a road and thus traveling too fast for conditions, or getting distracted by the behavior of kids in the back seat and swerving over the line. She added that she doesn't think [paragraph (4)] is necessary, that she believes the current state of the law is that recklessly-caused serious physical injury by means [of a dangerous instrument] will result in a felony, and that she cannot imagine that a jury in Alaska wouldn't find reckless behavior if someone had been drinking and caused a car accident. MS. BRINK, in response to a question from Chair McGuire, clarified that her suggestion is to omit paragraph (4) in its entirety. Saying it's already a felony to cause serious physical injury to another person by means of a dangerous instrument, she added that she believes it's actually assault in the second degree. She said recklessly causing serious physical injury by means of a dangerous [instrument] is a felony and carries a mandatory presumptive [sentence]. [Teleconference cutting out.] She went on to say, "We should think twice about making felons out of people who make careless but still innocent mistakes." She added that if the goal is to get at people who have consumed alcohol, then "we should at the very least include that requirement in that section." Number 2170 CHAIR McGUIRE asked how many times a person has been charged with assault or criminal negligence from turning around to deal with kids in the back seat or other examples such as Ms. Brink had mentioned. She also asked about times when it has been alleged. MS. BRINK replied that the case management system doesn't allow breaking down the categories with that kind of detail. She did report that when she handled misdemeanors in the early 1980s, people were charged with assault in the fourth degree without having consumed any alcohol. She suggested that the representative from the Office of Public Advocacy (OPA) might have examples of cases he has seen. MS. BRINK turned attention to Section 12, which makes it a crime if a third-party custodian fails to provide immediate notification of a violation. She explained that the idea of third-party custodians originated to help poor people get out of jail when they had absolutely no money for bail. A third-party custodian is like a substitute jailer and must come to court, most often promise the judge to watch the person 24 hours a day, insist that every condition ordered by the judge be followed, and promise to immediately turn in the person if there is a violation of those conditions. MS. BRINK said the problem is that the system has evolved into a requirement in practically every case, "not only as a substitute for money bail, but ... in addition to money bail." Saying that now people are being held in jail for even low-level misdemeanors because they have no friends or relatives who can take off work and watch them 24 hours a day, she explained: My biggest fear with this section is that now even fewer people will be able to be third-party custodians because these people are not well versed in the law. To be a third-party custodian, you pretty much have to have no criminal record and not much experience. And so when they come to court and hear that they are now subject to being charged with a crime, I can tell you that that information isn't going to be clear enough to them that ... this is really only a serious problem if you're not going to do your duties. I think it's just going to dissuade more and more people from acting as third-party custodians. ... Number 2249 And, frankly, that's already happening. The Alaska Judicial Council just prepared a report on Alaska felony processes, looking at 1999, and I'm pretty certain that they sent copies of this report to everyone in the legislature. But it already confirmed that public-defender clients - poor clients - (indisc.) incarcerated pretrial than other clients. And it also confirmed that third-party custodians were a huge reason why people spent more time incarcerated. It's going to have a huge chilling effect on people's willingness to come forward and be [third-party custodians]. And ... it's going to result in more and more people spending more and more time in custody before they're ever convicted. MS. BRINK emphasized that these are "pretrial people" sitting in jail because they cannot come up with a third-party custodian. Number 2300 CHAIR McGUIRE asked why that trend of increasingly requiring a third-party custodian is occurring. MS. BRINK replied that she'd asked judges to explain it but still didn't know why. She said people already are somewhat reluctant to be third-party [custodians] because they're advised they could be subject to contempt of court if they don't follow all the conditions to the letter. Saying she disagrees with testimony that the contempt process is a cumbersome process, she added: You file a one-page order to show cause why this person should not be held in contempt, and I've seen it done in bail cases. I think that the prosecutors' office, rightly so, limits their prosecutions of these people to ... cases where they think there really was a deliberate failure. ... Since they already can be prosecuted, and since it's already so difficult to find [third-party custodians], I just don't think we need to criminalize yet another act in the state of Alaska. CHAIR McGUIRE remarked that she'd be more inclined to say "that you should have this" and that third-party custodians should take it very seriously, since they are jailers by extension. She expressed curiosity about discovering why third-party custodians are increasingly being required in addition to bail, even in misdemeanor cases, and suggested that should be the problem that is focused on. TAPE 04-52, SIDE B Number 2389 CHAIR McGUIRE suggested third-party custodians should believe "to the bottom of their soul" that what they're doing is very serious. She said she is concerned about "the logic process" here and doesn't think the answer is to not implement stronger measures for third-party custodians simply because judges perhaps inappropriately require such custodians in some situations. If the original intent was to help poor people who cannot come up with bail money, she asked, why would it be required in misdemeanor cases in addition to bail. She said she didn't know the answer. MS. BRINK replied that she didn't know either. She shared her experience that it's difficult to find a third-party custodian, and pointed out that the person is informed of the rules and then has to sign a document which states that he/she could be charged with contempt. Ms. Brink said there is a strong effort to convince third-party custodians of the importance of this obligation, that it's critical to the process, and that they will be prosecuted with contempt if they violate the terms. She expressed concern that because it is so hard to find a third- party custodian, this will just make it harder. REPRESENTATIVE GARA agreed that third-party custodians are overused. He asked, if it's already a crime for third-party custodians to violate their duties, why it makes things worse to "just come up with a different misdemeanor" to charge instead of criminal contempt. He also asked how that deters third-party custodians if they're already being told a violation may constitute a crime. MS. BRINK replied that contempt can be punished by up to six months in jail and a fine of up to $300. This provision raises it to a class A misdemeanor, which carries a potential punishment of up to a year in jail and up to a $10,000 fine. Number 2247 REPRESENTATIVE GARA suggested someone who is willing to commit a crime probably doesn't think about the full extent of the penalties. He questioned whether the change in penalty would affect people's behavior. MS. BRINK pointed out that [third-party custodians] are making a huge sacrifice in their lives and thus already are somewhat reluctant to undertake this, even for someone they love and support; that they aren't people who commit crimes, but will think about consequences and will listen carefully when the judge advises them of what the mandatory or maximum penalties might be; and that they aren't well versed in criminal law. She expressed concern that this will increase their level of reluctance to get involved. REPRESENTATIVE GARA remarked that he'd prefer that fewer third- party custodians were used, but still wasn't so convinced about the difference between criminal contempt and a misdemeanor. He shared his belief that third-party custodians are imposed only when the prosecution asks for them, but said he has found that some - especially younger prosecutors - ask for them almost routinely. He suggested attorneys may overuse their authority in this regard. For example, an attorney may say to a judge that someone "might possibly, conceivably be dangerous while out on bail," which might apply to any defendant; thus the judge will agree to a third-party custodian just to be safe. REPRESENTATIVE GARA asked other attorneys present, "Is there a tweak to the statute that governs third-party custodians and when they may be offered that we might consider that would be a reasonable tweak - not a ... radical tweak but a minor tweak - that might result in limiting the use of third-party custodians to really the more necessary cases?" Saying it's a rhetorical question, he added that if such a tweak exists, however, it might be considered as an addition to the bill. He suggested if the result is less frequent use of third-party custodians, then everybody would be better off in the long run, even if this is changed to a misdemeanor from criminal contempt. Number 2130 MS. BRINK observed that many times the requirement for a third- party custodian is set by an arraigning magistrate before a prosecutor is involved in a case; this happens when the person is taken to the magistrate right from the scene of arrest for arraignment. Even though the state constitution and the rules require reasonable bail to be set within 24 hours, in actuality reasonable bail hasn't been set because the person cannot get out; to get out, the person must request a bail hearing and either propose removal of the third-party custodian - which the next judge down the line is loath to do - or bring in a third- party custodian who'll be approved. Thus there always must be a bail hearing, which greatly increases the workload of prosecutors, defense lawyers, and judges. This initial setting of bail is sort of meaningless, she remarked. MS. BRINK added that bail setting seems almost in inverse proportion to the seriousness of cases the judges usually see. Magistrates, whose day-to-day business other than these arraignments is handling the lowest level of serious offenses such as traffic offenses, seem to set third-party requirements all the time. District court judges, who handle misdemeanor clients and cases, often set much harsher bail conditions. And superior court judges seem to be the best at setting reasonable bail, she said, because they see the whole gamut. REPRESENTATIVE GARA clarified that he'd meant to suggest perhaps there should be some standard that a magistrate must meet before imposing the third-party custodian requirement, a higher standard than currently exists. MS. BRINK replied, "The statute actually has a presumption of 'OR' [own recognizance] release, but it seems to mean nothing." CHAIR McGUIRE noted that the violation being discussed is the third-party custodian's failure to immediately report a released person's violations of his/her conditions of release. Given that, she remarked, it seems a minimal burden to pick up the phone and report immediately. REPRESENTATIVE GRUENBERG asked that the representative from the Alaska Court System be allowed to comment on this issue. Number 1989 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), relayed that this coming Friday, the Alaska Judicial Council (AJC) will be reporting to the committee regarding its felony sentencing study, a good portion of which addresses third-party custodians and their impact [on the ACS]. MS. BRINK turned attention to Section 13, which, she opined, removes the right of a whole class of people to claim self- defense. She said: I have great hesitation supporting this because I don't think these are questions that we can determine legislatively. Whether or not a person has the reasonable right of self defense has traditionally, in the American system of justice, been left to the jury, who can hear all the evidence. And removing this from ... whole classes of people engaged in fairly petty conduct actually seems inconsistent with Section 8 ... that I mentioned. ... In Section 8, we're setting to value the life of a participant in a felony who gets killed, and making that a possibility to charge felony murder. Well here [in Section 13] it seems like we're removing the right of self defense for whole classes of people, and I have a couple of examples and I can also address the amendment that I know is before you because it tries to address this but I don't think it addresses it adequately. I think in the current state of the bill, as it looks now, let's say a prostitute picked up a customer and it turned out, which is not unheard of in Alaska, that he's a serial killer - this bill is telling her that she has no right to preserve her own life. Let's say there's a couple of underage kids at a park sharing a beer and they're attacked by some ... robber or mugger - you're telling those kids that their life is not worth protecting. ... You might think these hypotheticals are overdramatic, but these are instances that easily could be charged under this. What we're doing is we're sentencing people to death if they engage in petty criminal conduct. What if somebody is driving with a license that's suspended and they get carjacked [and] there's a baby in the backseat of the car? The mother has no right to protect her child or herself because she's driving with a suspended license. ... What we're saying is, you don't have a right to defend yourself. But what are we going to do if these people are attacked with deadly force and they do defend themselves? Well, we're going to convict them. We're not even going to let them bring to the jury the fact that they had a dangerous situation and it was their life or the person's life at stake because we're saying, "You have no right of self defense"; their lawyer won't even get to ask the jury to consider that. Number 1855 MS. BRINK continued: And the examples can go on and on. What if there's a woman who has a restraining order out against a violent husband and she's carrying a concealed weapon in someplace where it's prohibited or banned, like a university or a bank? Her husband, who has already posed a documented danger to her in the past, comes up and attacks her, and what we're telling her is that she has no right to defend herself. [If she's] charged, she may not be permitted to talk the jury about his violent history, what he's done to her in the past, because [we've] said to her, "You cannot defend [yourself]." And even under the amendment that is being proposed, where we change it to felonious conduct, [it] doesn't take much to be [charged with a] felony these days. If you're shoplifting something worth over $50 and, in the last five years, you've shoplifted a pack of cigarettes and a carton of milk, you are facing a felony. And if some lunatic attacks you [in] the parking lot as you're fleeing the shoplifting, you may not defend yourself. ... This reminds me of the case in California where the "three-strikes law" was drafted to cover all kinds of conduct. I'm certain that the drafters in California did not think that stealing three videos would subject you to a life sentence. But under this bill, if you steal three videos - and you have a prior conviction for a theft - that's over $50; now, all of a sudden, you're not going to be permitted to defend yourself. And I just think that we're removing the power from the people, [because] we're taking away a jury's right to look into all the evidence about why someone engaged in self defense. CHAIR McGUIRE asked whether changing the burden such that the defendant would have to argue an affirmative defense would alleviate the PDA's concerns. MS. BRINK said that might be an improvement, but pointed out that that is a difficult burden. Number 1759 REPRESENTATIVE SAMUELS offered a hypothetical situation: If I go to a house and I'm there to buy a large quantity of drugs, and I bring a gun and I know it's a dangerous situation, ... and somebody gets shot, do you think self defense should be allowed in? Because that's [a] far more realistic situation than two kids sitting there drinking beer getting beat up by a serial killer .... MS. BRINK replied: Self defense is a lot more complicated than that. What would have to be determined is whether the person who went there to buy drugs with a gun was the initial aggressor, because, if he was the initial aggressor, the person in their own home, even if they're selling drugs, has a right to defend themselves - there's no duty to retreat in your own home. So I appreciate what you're saying, but self defense is really complicated, and all I'm saying is that we should let the jury sort it out .... No, I don't think the guy is justified if the person in the house doesn't do something to attack him or try to hurt him or kill him. But let's say the person in the house does do that. Why would we want to force this guy, just because he's going there to get drugs, to not be able to defend himself? REPRESENTATIVE SAMUELS offered a different hypothetical situation: You've got two cars full of kids driving down Northern Lights [Blvd.] shooting back and forth at each other, and nobody gets charged, even though somebody got killed, because they both claimed self defense. And that's a far more realistic [hypothetical] than the two kids in the park. ... If ... you bring a gun to a situation and you escalate it, and if it's a drug dealer, it's already escalated enough. And if it's not in somebody's house, let's say it's in a parking lot somewhere, and somebody gets shot, and those, once again, are far more realistic real-life scenarios, but I think that ... when the ... Department of Law drafted this that they were trying to cut those off at the pass. Number 1682 MS. BRINK said she doesn't know that she can agree that Representative Samuels's hypothetical situations are more realistic, because she has seen more of the type of situations that she listed. She referred to Representative Samuels's hypothetical about the two cars full of kids, and said: Let's say that's true. Let's say there's two cars driving down Northern Lights [Blvd.] and all of a sudden one car starts firing on the other. We're telling the people in the second car that because they fired back they don't have a right to self defense. I mean, Representative Samuels, the right of self defense is inherent in every citizen's right to life, liberty, and the pursuit of happiness. How can we decide, before an event even takes place, that someone has forfeited their right by engaging in petty crime? And why would we want to do that? Wouldn't that encourage vigilantism to go on? ... I disagree that those people can't be charged. They can be charged; yes, it might be a more difficult case to prove. So why couldn't the juries figure that out? Why couldn't the jury, based on all the evidence and proof brought before them, decide who fired on [whom] first and whether or not someone was justified. Why can't they make that decision? REPRESENTATIVE SAMUELS asked Ms. Brink whether she is proposing that all the information should just be given to the jury so that it can determine what occurred. MS. BRINK said yes. Number 1604 REPRESENTATIVE GARA said: There are circumstances where it's hard to prove somebody is guilty. There are two things we can do: make it presumptive that ... both guilty people and innocent people are guilty - that makes it really easy, you don't have to worry about hard-proof problems; or you can follow the sort of constitutional mandate that we've followed in this country that says, "You know, sometimes proof is really hard to come by, but we're going to require it anyway." And we know when we do that, ... that that benefits guilty people as well as innocent people. That's the fight that we have here all the time. But by taking away the right to self defense from people who didn't do anything to deserve death, by taking away the right to self defense from people who should, by all rights, be able to defend themselves, just because we want to make it easier to prosecute people, I think is wrong. I understand your point, Representative Samuels: if we don't do this, there will be guilty people who go free. But if we do, do this, we are ... taking away the right to self defense from somebody who, by all rights, should have that right to self defense. CHAIR McGUIRE opined that the current language in the proposed CS goes too far, and mentioned that she would be offering an amendment to "add back in the presumption," perhaps by shifting the burden. REPRESENTATIVE GRUENBERG asked whether courts have upheld the constitutionality of shifting the burden. MS. BRINK said she did not know. Number 1422 SUSAN A. PARKES, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), said that other states currently have such in law and it has been upheld in those other states. REPRESENTATIVE GRUENBERG asked whether there are any states where it has not been upheld. MS. PARKES said she did not know of any. Number 1392 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), indicated that she only knew of cases in which it has been upheld, one of those being a U.S. Supreme Court case. MS. BRINK, referring to language in Section 13, subsection (a)(4)(B), said she did not understand what is meant by "transaction or purported transaction", especially what is meant by "purported", and that she would be even more confused if this were changed to an affirmative defense because she doesn't understand who will have the burden of proving what. Is the defendant going to have to prove that he/she was not in a "purported transaction", or was not acting to "further the criminal objectives of one or more persons"? She opined that the "purported" language is very vague; if there is even an accusation that a defendant was trying to buy or sell drugs, then he/she would lose the right to claim self defense. CHAIR McGUIRE said she agrees that that language is a bit vague and relayed that there would be amendments addressing that section. MS. BRINK directing attention to Section 14, said that this section also addresses the issue of self defense but contains language specifying that the court may only instruct the jury about the justification of self defense if the court, sitting without a jury, finds that there is "some plausible evidence". Currently, jury and judge have two different roles in a trial: the judge decides what evidence is admissible - and this involves determining whether the evidence was legally obtained, whether it's relevant to prove some issue in that particular case, and whether the evidence would be too prejudicial to one side or the other - and often hears evidence in advance of the jury for the purpose of ruling on the evidence's admissibility; the jury decides what weight to give evidence and whether evidence is plausible, or credible, or believable. Section 14 takes away the jury's power and give it to the judge. MS. BRINK said she doesn't understand why such a change should be made, adding, "we don't make the judge the finder of fact in a jury trial." "You have a right to have a jury trial, you have a right to have 12 of your peers determine whether or not your [claim of] self defense [is] plausible, and what self-respecting jury would find self defense when the evidence was implausible?" she asked. She offered her belief that if evidence is admissible, then the jury should be allowed to determine whether it is plausible. Number 1209 MS. PARKES, in response to a question, said that according to her understanding, the word "plausible" is used in the proposed CS because the Alaska Court of Appeals currently says any evidence, even if implausible, raises self defense and [the jury] "gets the instruction." She said that the DOL is "trying to make the level of evidence a little higher." MS. CARPENETI indicated that there are Alaska cases regarding this issue. REPRESENTATIVE GARA remarked: There seems to be an undercurrent here that we don't want the self-defense defense to be used in cases where it's really a frivolous claim, and so I think that was the attempt, frankly, in Section 13. But Section 13 is written in a way that bothers many of us. And I wonder whether, if we adopt Section 14, we don't need to deal with Section 13, if we could just dump it. And here you have this gatekeeper standard that says ... if it's plausible, let the jury hear about it, and [then] we don't have to go through the whole process of adopting this sort of really loose or more troublesome standard that's in Section 13. I wonder if that might be the way to deal with it. REPRESENTATIVE GRUENBERG offered his belief, however, that there are two different issues: one, whether the evidence is plausible; and two, whether "it's susceptible of determination." Number 1033 MS. BRINK referred to Sections 15-17, which pertain to immunity for witnesses. She mentioned that the PDA has submitted a proposed amendment that would simply end [subsection] (i), of Section 17, after the word "finding" on page 9, line 30. REPRESENTATIVE GRUENBERG remarked that that proposed amendment might also require some conforming changes elsewhere in Sections 15-17. MS. BRINK relayed that [the PDA] doesn't have any problems with the provisions in Sections 15-17 that clarify statute and conform it to State v. Gonzalez, wherein the Alaska Supreme Court held that Alaska's privilege against self incrimination requires any finding of immunity to be transactional immunity, not just use and derivative use immunity. She also relayed that [the PDA] does have a problem, however, with the provisions of those sections that requires the judge, after a proffer by a witness who's exercising the privilege against self incrimination, to share information about what was said during the hearing in camera in which the judge finds that the witness does have a valid claim of "Fifth Amendment" privilege. She remarked that when a judge makes such a finding, the witness has an absolute right not to testify or give any information regarding his/her involvement. MS. BRINK pointed out that language in Section 17 is telling the judge that he must tell the prosecutor what level of offense the witness is involved in. She said: I think, Madame Chair, that that is a link in the chain tying them to the crime and, under transactional immunity, that's unconstitutional. I don't you think you can fix that part. I think the only way you can make this statute constitutional is to remove that proffer from the judge to the [district attorney's] office. I realize the [district attorneys] are frustrated, they would like to know what that person is involved in, like to know that before making a decision to grant them immunity, [but] the privilege is absolute and it cannot be breached. And I think if you include that information going from the court to the [district attorney], this renders that section unconstitutional. Number 0869 REPRESENTATIVE GRUENBERG asked Ms. Brink whether she has any authority to support that proposition or whether any state has adopted "such a provision." MS. BRINK, in response, relayed that the Gonzalez case [in referring to E.L.L. v. State, 572 P.2d, 786 (Alaska)] says that in Alaska, the privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. She indicated that her position is that the information mandated by Section 17 to be shared with the prosecution constitutes such a link. MS. PARKES said the DOL has not found any state with a provision such as is being proposed in Section 17, though very few states require transactional immunity. She said [the DOL does] not believe that the proposed language is unconstitutional under Gonzales, which declared that Alaska must have transactional immunity, and is prepared to litigate the issue. Characterizing the proposed language as one of the most important provisions of the bill and as a very minimal request by prosecutors regarding the extremely powerful tool of immunity, she opined that because of the possible ramifications, it is very dangerous to give someone immunity with absolutely no information, which is what the DOL is required to do now. REPRESENTATIVE GRUENBERG noted that the Gonzalez case [in referring to E.L.L. v. State, 572 P.2d, 786 (Alaska)] also says that a witness may not refuse to testify where there is no real or substantial hazard of incrimination. He asked Ms. Parkes whether her view is based on a belief that the information the judge would be required to reveal to the prosecution is not a link. MS. PARKES indicated that that is her view. REPRESENTATIVE GRUENBERG asked Ms. Brink why she believes it is a link. Number 0535 MS. BRINK said: Because the idea is that a person who has a valid Fifth Amendment right must be kept in the same position as if he remained silent. ... So the standard is, the same position if he remains silent. This is not the same position. This is giving the state information about the crime - about the type of crime, about the level of crime - from his own words; if he had remained silent, he would have faced no hazards of incrimination from his own words. And through the second basis, through the Gonzales opinion, it says that the court and the state cannot safeguard against the nonevidentiary use of compelled testimony. And nonevidentiary use means, what's to prevent law enforcement or the [district attorney's] office from focusing the investigation, deciding to initiate a prosecution, refusing to plea [bargain], ... interpreting evidence, ... planning a [cross- examination], or somehow otherwise planning trial strategy. ... I'd like to point out one more thing. The state ... prosecutor's office argued extremely strongly in this case that our statute, which only provided use and derivative use immunity, was constitutional, and they were wrong about that. The [Alaska] Supreme Court held that the statute, this very statute that you're fixing now and that [the state] supported, was unconstitutional if it only provided use and derivative use [immunity]. So that question of constitutionality was resolved against the state REPRESENTATIVE GRUENBERG asked Ms. Parkes what safeguards the state would use to ensure against nonevidentiary use of compelled testimony. "It seems to me that if that information's provided to you, then you could use it," he remarked. MS. PARKES replied: It's information, it's not testimony. ... This is just a judge letting us know the level of offenses, and not even the specific level, that we're looking at. ... So I don't think we're getting much information. I don't consider it evidence to be given that level of information. What seems to be being implied here is that we're in an investigative stage of a case, [but] ... we're not. What we're talking about is, when someone's been charged, we're trying to go to trial, we've made a charging decision, we've done our investigation, we're trying to get a witness on the stand to give evidence, and so I think the concerns that we're somehow going to be using this information to now focus on the person we're trying to get to testify ... are far afield of what would really happen. Number 0372 REPRESENTATIVE GRUENBERG, in response, said: The first, that this is not testimony, frankly, I can't buy ... because the way the judge learned it was from the defendant's mouth, or from the attorney's mouth on behalf of the defendant, in chambers; it clearly was testimony at that point. Secondly, if you're saying that you're focusing on whether to get this person to testify, that's great, but the court here is talking about whether you, the state, can provide an assurance [that] it won't be used against that person. And that's the crux. I don't need an answer now, but if you want something like this, I think to meet the standard of Gonzales you have to have a meaningful safeguard that the words, the information you obtain, are not going to be used against that person. MS. PARKES said she wouldn't be opposed to the addition of language that said that the information given by the judge - fruits of that poisonous tree - would be suppressed, couldn't be used, or couldn't be pursued. She mentioned that she couldn't see that the information given by the judge would be particularly useful in an investigation anyway. REPRESENTATIVE GRUENBERG suggested to Ms. Parkes that she pursue the issue of additional language. Number 0133 CHAIR McGUIRE remarked: The way it is right now, if there's a witness that you want to put up, and they claim immunity and go and meet with the judge, you really are in a position where it could be for something very, very serious. And I'm sure that there's probably even a case of somebody ... [wanting] to be a witness because they could get immunity for something like that, where, at a minimum, you're granting immunity for something very, very serious when you could have found another witness or you could have let that part go. MS. PARKES responded: That's exactly the concern: ... you give immunity to the wrong person because you do it blindly and, yes, someone's going to get up there and confess to a homicide. And [if] you've given them transactional immunity, you're done, you can't prosecute them. And that's what we're trying to avoid. And I just would like to point out that many, many times, we work with witnesses and work these things out, where they tell us what their concerns are [and] we know what the crime is that they're concerned about - drug use or something like that - and we do give immunity in these cases. These are cases where the witness is uncooperative with us; sometimes they are afraid to testify - they've been intimidated by the defendant - [or] they're friends with the defendant [and] want to protect them. Those are the kind of cases, often, where this is coming up, and then we lose very valuable evidence in a serious case. TAPE 04-53, SIDE A Number 0001 REPRESENTATIVE GARA remarked: We're asking the court to advise the prosecution whether the privilege was for [a class A felony, a class B felony, a class C felony, or a misdemeanor], and I don't think that's knowable in many cases because the gradations in the severity of your conduct are so subtle, sometimes, between a high level misdemeanor and low level felony, and a mid level felony and a high level felony. That's why prosecutors submit jury instructions that say, "If you find all of this evidence, convict the defendant of this; if you find some of it, convict the defendant this lesser offense." And so how is a ... defendant supposed to tell a judge, and a judge supposed to tell the prosecution, whether the conduct is clearly [a class A felony, a class B felony, a class C felony, or a misdemeanor] when it might be very fuzzy as to [which] side of the line the conduct falls on. MS. PARKES clarified that the bill only refers to a higher-level felony, a lower-level felony, and a misdemeanor. For a judge to make a finding that a person has a valid Fifth Amendment privilege, he/she has to have some concept of what crime the person potentially could be prosecuted for. She said she has faith that judges are able to make that call and perhaps err on the side of "a higher potential liability." REPRESENTATIVE GARA pointed out, though, that the bill does not specify that if it's unclear the judge should assume it's a higher-level crime. The bill presumes that the level of crime will be really clear. MS. PARKES said she did not think it will be that difficult for a judge to determine what the potential charge could be. With regard to the aforementioned jury instructions given by prosecutors, she said, "What you're actually going to be able to prove beyond a reasonable doubt in front of a jury may be a different thing and so we want to give juries options, but the prosecutor, I can guarantee you, always believes that the highest level charge charged is the accurate charge." Number 0300 MS. BRINK, with regard to the suggestion of adding language to limit the state's use of the information given by the judge, said she didn't think that that would be effective because, in Gonzales, the Alaska Supreme Court has said, "Even the state's utmost good faith is not an adequate assurance against nonevidentiary uses because there may be 'nonevidentiary uses of which even the prosecutor might not be consciously aware.'" She pointed out that in that case, the court also said: We sympathize with the Eighth Circuit's lament in McDaniel that "we cannot escape the conclusion that the [compelled] could not be wholly obliterated from the prosecutor's mind in his preparation and trial of the case." ... This incurable inability to adequately prevent or detect nonevidentiary use, standing alone, presents a fatal constitutional flaw in use and derivative use immunity. MS. BRINK turned attention to Sections 18 and 19, which pertain to consecutive sentences. She said: What these provisions do is specify, in great detail, what cases have to have consecutive sentences and, in many cases, in fact, what amount of jail time has to be consecutive. And I guess I'm unhappy with [these sections] because I've always felt like individualized case consideration is the hallmark of our system of justice. I don't really understand why we want this judicial discretion taken away from judges. They have a lot more time and energy to listen to all the facts of a particular individual case and try to determine the appropriate sentence. And there might be individual circumstances that warrant a deviation from a strict application of presumptive ... [consecutive] sentences. Number 0497 Why would we, as a state, want to spend $56,000 a year to house an inmate when it isn't justified in ... [a] particular case? I think this will have a huge fiscal impact on [the Department of Corrections] that isn't reflected in their fiscal note. And I realize that all we're trying to do is to punish people appropriately and somehow reduce recidivism and save money that way, but I have to say, after being a [public defender] for 21 years, I have not seen an instance where we, as a state, have decided to increase penalties [and] that has then resulted in the reduction of a particular type of crime. One of our goals, in criminal justice, is to have uniformity of sentences, sentences that are not influenced by race, whether [the defendant] had a public attorney [or] a private attorney, [or] what [the defendant's] socioeconomic status is. I think that by doing this you'll actually damage uniformity of sentencing because, in essence, you're leaving the sentencing decision up to an individual prosecutor. That individual person, who draws up the charging document and deals with the case and either negotiates it or sends it to trial, has the ultimate say in the number [and] types of counts that are charged against any one [defendant]; ... that individual prosecutor can decide whether all these counts and charges should be resolved in one judgment or more than one judgment, and if it's more than one judgment, there's no possibility of concurrent sentencing. MS. BRINK continued: Now, I have to say, some prosecutors I've dealt with for years I could trust to make that decision. But I frankly trust the judges to make objective and fair decisions more than I do the prosecutors because the prosecutors are advocates in this process - they're subject to the human emotions of engaging in a competitive and ... [adversarial] system - and I would prefer that we (indisc. - coughing) decisions by the judge and the probation officer in the Department of Corrections who writes the presentence report and is supposed to give an objective viewpoint. As advocates, our viewpoint is not objective. Number 0609 Frankly, the trend nationally is to get away from rigid and mandatory minimums. We often read in the paper about federal judges who are complaining about the federal sentencing guidelines; many states are starting to revoke mandatory minimums because they found that the people who don't need to be in jail are staying there a long time and draining the state of the resources that they really need to use for other matters. [This] seems to be regressive and unnecessary. People are getting long sentences; people are getting long presumptive sentencing. I don't know that ... you, as a legislative body, or we, as people outside of a case, can determine that somebody should have gotten 20 years instead of 13 - we have limited information. I think the judges, who have all the information, should get [to make] that decision of what sentence a person should get. And the report that Mr. Wooliver was testifying about had another interesting conclusion. In case you think that we're not punishing people enough, in that report they concluded that more Alaska defendants are sentenced to jail time than in other places in the Nation, and that they're likely to serve more of the time that's imposed on them than defendants in the rest of the country. So, believe me, if we think we're not already being punitive enough, compared to the national standards, we certainly are. Number 0739 MS. BRINK, in response to a question, said that for the most serious crimes, the PDA agrees that the presumptive term has to be imposed consecutively. CHAIR McGUIRE asked Ms. Brink, if three people are murdered, for example, why isn't each one of those lives deserving of an individual sentence? MS. BRINK replied: I do think each individual life has value, but I think that those of [us] who've practiced in the courts don't think that the value of the person who was lost is characterized by the sentence that is imposed. I think that what judges do and what lawyers understand is that the total gravity of the situation is reflected in the total length of the sentence. And that's why, for a double homicide, for example, a person might get 99 years for the first one and an additional 20 or 10 for the second one to run consecutive. It's not that that second life is only worth 10 or 20 years, Madam Chair, it's that the fact that there was more than one person involved increases the gravity of this crime and the seriousness and the punishment to go beyond the maximum, beyond what anybody could get for a single homicide, and that the total sentence of say 119 years is reflective of that situation. I don't think any judge ever intended that that should somehow be a measure of each individual life, and I think that's why we err when we try to calculate time in that manner. I don't think that that's what the sentence is reflective of because certainly no one's life could be measured in a term of years. CHAIR McGUIRE posited that many share a frustration over the tendency to view a situation as one criminal act even if multiple people are seriously harmed or killed. "I really do feel like, for each person who is hurt, for each life that is taken, there ought to be that opportunity for a separate sentencing," she relayed. Number 0938 REPRESENTATIVE GARA, referring to page 10, line 26, asked what AS 11.41. pertains to. MS. PARKES explained that AS 11.41 pertains to offenses against a person. REPRESENTATIVE GARA referred to page 11, lines 6-7, which read: "two years or the active term of imprisonment, whichever is less, for each additional crime that is criminally negligent homicide". He asked whether a two-year minimum term of imprisonment will be required for criminally negligent homicide, and whether that is more jail time than is currently required. MS. PARKES replied: "I don't believe there's a mandatory minimum on criminally negligent homicide, so I think ... the belief was [that] two years was an appropriate amount of additional time for each count." REPRESENTATIVE GARA asked what "active term of imprisonment" means. MS. PARKES explained that if someone is sentenced, for example, to five years of imprisonment with four years suspended, the active term of imprisonment would be one year. She noted that these provisions of the proposed CS are identical to provisions in the original version of HB 244 REPRESENTATIVE GARA asked whether Section 19 is saying that if there are two or more crimes against a person, then the total sentence has to be at least the minimum for one of those two crimes. Number 1266 MS. BRINK responded: No, I think what [Section 19 is] saying is it has to be doubled. What's happening in this section is that it's a regimented approach. Already the statute creates a presumption of consecutive sentences, so judges know that judges do have the opportunity to impose consecutive terms. What this does is it regiments how much time must be consecutive. If it's an escape, all the imprisonment must be consecutive. If it's [murder in the first] degree, the mandatory minimum term for each one much be consecutive. Same with an unclassified felony. In a manslaughter or a kidnapping that's a class A felony, the presumptive term must be consecutive. So, depending on the number of people involved, it's really arithmetic: you take the mandatory minimum term and you chop it up among the different counts. Now currently, the judges can get to the same overall sentence, if they want to, in the appropriate case just by doing a larger term of years or doing consecutive sentencing. But they don't have to parse it out; they don't have [to] apportion it among victims. And so that's what's different, here; this is a regimented approach, dealing with cases that haven't even happened yet, deciding what might be appropriate in the individual circumstances by arithmetic. REPRESENTATIVE GARA asked, "Currently, if the presumption is consecutive sentences, that just applies to felonies?" MS. BRINK said it applies to all crimes, both felonies and misdemeanors. MS. PARKES remarked, however, I don't think there's a presumption that every sentence, every time, should be consecutive. There are times that the statute indicated that it should be consecutive, but there are times it can be concurrent. And frankly, part of this proposal was because it appeared that judges were not necessarily following what was already in the statutes; they were not giving consecutive times when it appeared that that was the legislative intent of the statutes that are currently on the books. Number 1359 REPRESENTATIVE GARA asked, "So are you saying that the statutes provide that in some cases the presumption is not consecutive sentences?" MS. PARKES offered as an example AS 12.55.025(g), which says in part: "If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if ...". So it's a clear opportunity, she remarked, rather than a presumption. REPRESENTATIVE GARA asked: "So the statutes provide that ... if the defendant meets certain standards, then they can get out of the concurrent sentence presumption - is that what you're saying?" MS. BRINK offered: I have to strenuously disagree that the presumption is for concurrent sentences. The presumption is for consecutive sentences. [In AS] 12.55.025(e) it states very clearly, "Except as provided in (g) and (h) of this section" - and that was the section that [Ms. Parkes just referred to] - "if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively. REPRESENTATIVE GARA said, "So [AS 12.55.025(e)] says they shall be presumptive, and then [AS 12.55.025(g) and (h)] say here are the circumstances where you can get out of a presumptive ... consecutive sentence. ... What are the circumstances that ... now would get you out of the consecutive sentence?" MS. BRINK replied: For you to get out of the consecutive sentence, ... what you have to show is that the crimes violate similar societal interests; they are part of a single, continuous criminal episode; there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or the type of property right offended, or the persons offended; the crimes were not committed while [you] ... attempted to escape or avoid detection or apprehension after commission of another crime; it's not for a violation of [AS] 11.41.100- 11.41.470, which, again, [are] crimes against persons; and it's not for a violation of [AS] 11.41.500- 11.41.530 that results in physical injury or serious physical injury, [and those] I believe [are] misdemeanor crimes against [a person]. Number 1529 So it is very, very difficult to get a concurrent sentence. And in fact, when that section was changed, it was a sea change; the presumption, when I began practicing ... was for concurrent sentences. [The] legislature changed that and made the presumption very clear: they are to be consecutive sentences. [if] there's a change in the parties, if you have more than one person who is injured, in two different assault counts, they cannot get concurrent [sentences]. MS. BRINK turned attention to Section 20, and said she likes this section because it codifies the current practice regarding instances in which an indigent witness is called upon to testify in a court proceeding and the judge thinks that that person needs legal representation to address the issue of whether or not he/she has a valid Fifth Amendment privilege. That person can be appointed a public defender so that the judge and the witness are not left to sort out that point on their own without assistance. MS. BRINK turned attention to Sections 21 and 23, and surmised that [Section 21] says that once someone gets convicted of felony driving under the influence (DUI), any DUI after that will always be a felony, and that Section 23 says the same regarding "felony [DUI] refusal." She urged the committee to consider a time limit for those provisions. She elaborated: If you have a young kid struggling with a drinking problem who, say, gets [DUIs] when he's 16, 17, or 18, [but] he successfully attends a [rehabilitation] program and ... remains clean and sober [and] becomes a hard working and productive citizen for 30, 40, 50 years, ... do we really want to make that person a felon at the age of 48, 58, 68? Do we really want to make that a felony? ... I know there is pending before the legislature another bill to adjust the current look-back for mandatory minimum sentences on [DUI] sentences. ... We're looking at that because what we've discovered is, we have among the harshest look- back ... and [DUI] sentencing provisions in the country; we have the longest look-back provision, and so, once again, I think that making it a felony anytime in the next lifetime of a person would be extremely harsh. CHAIR McGUIRE remarked that those are good points. Number 1633 MS. BRINK turned attention to Section 22, which, she remarked, has to do with eliminating what [prosecutors] characterize as the "big gulp" defense. She said this provision would prohibit any introduction of evidence regarding the consumption of alcohol [that occurred before] the driving or operating. So that means that the person who's charged with a blood alcohol concentration (BAC) level of .08 does not get to come in and testify that, "No, I only had a beer," even if there are witnesses to that effect. She posited that this provision is broader than what people have said is the intent. She added: I don't think we ought to eliminate the big gulp defense because, frankly, don't we want to punish those people whose judgment and skills [are] impaired? Don't we want to punish those people who are driving under the influence? If a person isn't under the influence at the time they're driving, do we really want to treat them the same as somebody who is? That's what we do if we adopt this measure saying that that evidence is not relevant or admissible. And I, frankly, think we should concentrate on punishing those people who are under the influence or impaired at the time of driving. MS. PARKES relayed that for those very reasons, the DOL has drafted a proposed amendment for the purpose of tightening down that provision such that it will only apply in the situations intended. That proposed amendment read [original punctuation provided]: Delete Page 13, lines 7-10 Insert in its place: (s) In a prosecution under (a) of this section, a person may introduce evidence of having consumed alcohol before operating or driving the motor vehicle, aircraft or watercraft, to rebut or explain the results of a chemical test, but it is not a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. Add a new section and renumber other sections accordingly: *Sec.__. AS 28.35.030(a) is amended to read: (a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance; (2) if [WHEN], as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if [WHEN] there is 0.08 grams or more of alcohol per 210 liters of the person's breath; or (3) while the person under the combined influence of an alcoholic beverage, an intoxicating liquor, an inhalant, or [AND] a controlled substance. Number 1606 MS. PARKES added: If someone wants to attack the validity of the [Intoximeter 3000] and needs to talk about how much alcohol they've had to say the Intoximeter wasn't accurate at the time of the test, that certainly should be admissible. And this is a policy call for the legislature. It appeared to us that the intent in the original drafting of the DUI statute - [which] ... said, within four hours of driving, you get tested and you're .08, you're considered under the influence under the statute - was [that that would] ... be a presumption. And we feel that the big gulp defense of, "Well, ... my blood alcohol was rising," sort of thwarts the legislative intent. If the legislature doesn't believe that that thwarts it, then you would want to reject this provision .... MS. PARKES, in response to a comment, remarked that the defense [currently used] is, "My blood alcohol was rising, and if I'd only made it home before I got stopped, I wouldn't have been drunk driving." Number 1789 REPRESENTATIVE GARA posed a scenario in which someone has two drinks, drives home, starts "partying like a maniac," and the police, who've received a call, come, test that person, and find that he/she has a BAC level of .15. He asked whether the aforementioned proposed amendment would allow that person to offer the defense that he/she had only had two drinks before driving. MS. PARKES pointed out that the person really ought to speak to how much alcohol he/she consumed after driving. That's the real defense, and that's preserved, she remarked. REPRESENTATIVE GARA said: "And you could talk about what you had before you started driving, too, right? ... Frankly, that's the more important part." MS. PARKES remarked, "To rebut or explain the results of the chemical test." REPRESENTATIVE GARA offered, "I don't really want to have to prove how much I had to drink after I got home; I want to be able to prove that I only had two drinks before I got in the car." MS. PARKES responded, "Under those circumstances, that is not what we're intending to exclude now." REPRESENTATIVE GARA asked, "But it's clear in the amending language that you can show that I only had two drinks before I got in the car?" MS. PARKES said she'd have to look at the DOL's proposed amendment to see if it addresses the aforementioned scenario. CHAIR McGUIRE surmised that a person's conduct after he/she gets out of the car can be used as a defense, and that a person will still have the ability to question the validity of the Intoximeter. What they didn't want to allow, she posited, is the argument that it was that last drink before leaving the bar that "put you over the edge and that you weren't drunk when you were driving - it was that you were tested later and that huge drink that you took, before you left, kicked in." MS. PARKES concurred. Number 1887 MS. BRINK opined that under the scenario offered by Representative Gara, the jury would be instructed to disallow those facts as a defense because a portion of the proposed amendment stipulates that it is not a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. So, although a person may be allowed to offer evidence, the jury will be told that it is not a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. MS. PARKES disagreed, saying that "this does not preclude the alcohol that was then [drunk] at the house after the driving, and could be introduced to explain why the chemical test was high." REPRESENTATIVE GARA suggested that they write an amendment that says a person shall be allowed to show what he/she had to drink before driving. MS. PARKES argued, however, that the real defense pertains to the alcohol that was consumed after driving; evidence regarding that is what will show that a person was not DUI, and that evidence would still be admissible. She noted that part of the proposed amendment will alter "when" to "if" in the current statute because the court, in the Conrad (ph) case, focused on that current statutory language and decided that it didn't clearly disallow a big gulp defense. REPRESENTATIVE SAMUELS offered his belief that everyone is in agreement with regard to the intent, and now they just need the right language. Number 2080 MS. BRINK turned attention to Section 27 and said she doesn't like Section 27 because it doesn't offer protection to juveniles. She elaborated: The reason we treat juveniles differently and we have their information be confidential is because, although juveniles don't have the (indisc.) capabilities of processing information like adults - their brain is not sufficiently developed - many, many juveniles who come (indisc.) are rehabilitatable and never reappear in the adult [system]. And so we keep their record and their cases confidential. I understand wanting to be able to protect members of the public, but if we were going to do that, I would suggest we limit [it] strictly to sexual offenses [and] we limit [it] strictly to adjudications. What about a case that's investigated and dismissed? Or [a] case where the juvenile is acquitted at trial? We don't want to give that information to members of the public. So I would like to pick and chose between these two version to find the one that provides, first of all, the most-needed information for reasons of public safety - and I think that's adjudication having to do with [sexual] offenses - upon request, giving that to members of the public. MS. BRINK noted that although a proposed amendment was drafted with the assistance of the Division of Juvenile Justice (DJJ) and stipulates that the department shall formulate regulations regarding disclosure, nothing in the bill precludes someone from giving out information before those regulations are actually in place. Additionally, nothing in the bill precludes members of the public, once they receive information, from putting up flyers all over the neighborhood saying that "Johnny" is being investigated for a sexual offense by the DJJ, and include that child's picture and home address on those flyers. She characterized the aforementioned as a good reason for not freely giving out this sort of confidential information. Number 2215 PATTY WARE, Director, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), said that although she understands the PDA's concerns, the language in the proposed amendment contains "may" rather than "shall" with regard to disclosing information. She offered that the intent of Section 27 is to allow the Office of Children's Services (OCS) employees and DJJ employees to share information when it's appropriate. Noting that Section 27 proposes to alter AS 47.12.310, she relayed that under existing AS 47.12.315, there is a fair amount of information that the DJJ can share with the public, information related to specific offenses though not solely limited to cases that have been adjudicated. For example, when a juvenile is 13 years of age or older and the DJJ is going to file a petition on a felony crime against a person, or a crime that involves a deadly weapon, arson in the first or second degree, burglary in the first degree, distribution of child pornography, promoting prostitution in the first degree, or misconduct involving a controlled substance, the DJJ can disclose that information to the public. MS. WARE said that the DJJ is committed to working closely with the DOL and the OCS to ensure that regulations are crafted to address concerns about treating juvenile information differently than adult information. In response to questions, she said that the DJJ is already able to share information with the OCS, but the OCS cannot then share that information with a member of the public; that AS 47.12 addresses the issue of inappropriately releasing information; and that the penalty is a Class B misdemeanor. TAPE 04-53, SIDE B Number 2381 CHAIR McGUIRE surmised, then, that that penalty would also apply to the provision proposed via Section 27. MS. WARE, in response to a further question, offered her belief that Section 27 would not expand the amount of information that may be shared with the public; rather, it would just ensure that all relevant agencies would be allowed to share information that is currently available to the public. MS. BRINK offered her belief that the disclosure prohibition in AS 47.12.320 only applies to state officials or employees, and, thus, there is no punishment for a member of the public who inappropriately disseminates information. She acknowledged that it is hard to find a balance between protecting juvenile offenders and protecting the public, but asked the committee to err on the side of ensuring control of confidential information once it's released and limiting disclosure to circumstances in which there is a genuine danger to the public. CHAIR McGUIRE said she did not see that the type of information that could be released is being changed by Section 27. MS. BRINK said: The way I read [AS] 47.12.310, which has to do with agency records, we have to go to [subsection] (a), [and the] amendment starts with [subsection] (c). But in [subsection] (a), if you're complying [with AS] 47.12.310, [it] allows [disclosure of] all information and social records pertaining to a minor prepared by or in the possession of [a] federal, state, or municipal agency or employee. CHAIR McGUIRE remarked that that point is critical. She asked whether a minor's criminal record is destroyed when he/she turns 18, and what happens to "the trail of that record" if that record had to be disclosed. MS. PARKES explained that there will be three sets of records: the court system's records - she remarked that did not know what occurs with those records; the DHSS's records - she surmised that the DHSS must have a policy regarding those records; and the DOL's records - she said that the DOL keeps files on delinquency cases until the person is 21 because sometimes that information can be used if the person gets into trouble as an adult, and that those records are archived and ultimately destroyed. Number 2031 MS. WARE said that something similar occurs with the DJJ's records. She noted that although the DJJ can disclose a fair amount of information to the public, it does not disclose that information unless requested. Once that information is disclosed, though, nothing in existing statute limits what can be done with it - it becomes public information - and the proposed changes will not alter that. CHAIR McGUIRE said that one hopes that when a member of the public asks for such information, he/she does so for legitimate reasons, because that information could be used against the minor from then on. This is of concern to her, she remarked. CHAIR McGUIRE, after ascertaining that the representative from the Office of Public Advocacy (OPA) was willing wait until HB 244's next hearing to testify, suggested that any forthcoming amendments from interested parties should be in written format. [The committee had a brief discussion regarding when the bill would be heard next; HB 244 was held over.]
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