Legislature(2005 - 2006)CAPITOL 120

02/08/2006 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
<Bill Hearing Canceled>
Moved Out of Committee
+= Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 321(JUD) Out of Committee
HB 353 - SENTENCING FOR SEXUAL OFFENSES                                                                                       
[Contains brief mention of SB 218.]                                                                                             
1:59:15 PM                                                                                                                    
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL NO.  353, "An  Act relating  to sentences  for sexual                                                               
1:59:45 PM                                                                                                                    
REPRESENTATIVE  WILSON  moved  to adopt  the  proposed  committee                                                               
substitute  (CS)  for  HB 353,  Version  24-LS1449\G,  Luckhaupt,                                                               
2/2/06, as the  work draft.  There being no  objection, Version G                                                               
was before the committee.                                                                                                       
1:59:59 PM                                                                                                                    
REPRESENTATIVE MARK NEUMAN, Alaska  State Legislature, one of the                                                               
prime  sponsors of  HB  353,  explained that  HB  353 deals  with                                                               
sentencing  for  sexual  offenses.   The  bill  will  essentially                                                               
double the present presumptive sentencing  for all sexual assault                                                               
crimes, sexual abuse  of a minor crimes, and a  few other similar                                                               
crimes,  thereby sending  a clear  message of  zero tolerance  to                                                               
anybody contemplating  or involved in these  most egregious acts.                                                               
The bill  also provides  for periodic  polygraph testing  for sex                                                               
offenders  on  probation,  which  will  give  the  Department  of                                                               
Corrections  (DOC)  an  additional  tool  to  identify  potential                                                               
repeat offenders before another child is victimized.                                                                            
REPRESENTATIVE NEUMAN  commented that  with the amount  of sexual                                                               
assault crimes  on the rise  in Alaska and the  increased numbers                                                               
of Alaskans speaking  out, it's time to toughen the  laws.  Other                                                               
states  have enacted,  or are  in the  process of  enacting, laws                                                               
with  stiffer  penalties  for  those  who  commit  these  heinous                                                               
crimes.  According  to statistics compiled by  the Federal Bureau                                                               
of Investigation  (FBI), Alaska has  the highest per  capita rate                                                               
of reported  rapes, and  that rate is  nearly 71  percent greater                                                               
than that  of the next highest  state.  According to  the report,                                                               
"Making Sense  of Rape  in America:   Where  Do the  Numbers Come                                                               
From and What Do They Mean?",  the reporting of these cases is as                                                               
low as 16 percent.  Arrest rates  are also low, with as few as 27                                                               
percent  of reported  crimes resulting  in arrest.   Furthermore,                                                               
Alaska  has 4,300  registered sex  offenders.   He remarked  that                                                               
these  figures lead  him to  the  conclusion that  the number  of                                                               
actual sex offenders in Alaska is significantly higher.                                                                         
REPRESENTATIVE  NEUMAN  relayed that  there's  no  record of  any                                                               
treatment  or  therapy  having any  significant  effects  on  sex                                                               
offender recidivism rates.  However,  there are steps that can be                                                               
taken to  reduce repeat offenses.   Longer sentences  will ensure                                                               
that the most  dangerous offenders are kept  away from [Alaska's]                                                               
children.    He informed  the  committee  that regular  polygraph                                                               
testing for all sexual offenders has  proven to have an effect on                                                               
sexual behavior.   Supervision of offenders  with polygraph tests                                                               
has lead to a 69  percent compliance with probation requirements,                                                               
while supervision without  polygraph tests has lead to  only a 26                                                               
percent compliance  rate.  He  opined that requiring  a probation                                                               
period  as  part of  a  sentence,  along with  mandating  regular                                                               
polygraph tests, will make Alaska  safer and reduce the number of                                                               
sexual  assault  over time.    He  further opined  that  adopting                                                               
HB 353 is imperative if they  want to change Alaska's position as                                                               
the number one state in the  nation with regard to sexual assault                                                               
and sexual  abuse of  minors, and thereby  provide a  safer place                                                               
for Alaska's residents.                                                                                                         
2:03:20 PM                                                                                                                    
REPRESENTATIVE  ANDERSON  questioned  whether HB  353  will  curb                                                               
sexual offense behavior.                                                                                                        
REPRESENTATIVE NEUMAN  suggested that doubling the  sentences for                                                               
the aforementioned crimes will provide some continuity.                                                                         
REPRESENTATIVE  ANDERSON suggested  that  doing  so may  possibly                                                               
alleviate any potential court challenge.                                                                                        
REPRESENTATIVE NEUMAN relayed that the  fiscal note for HB 353 is                                                               
currently indeterminate.                                                                                                        
2:07:10 PM                                                                                                                    
REPRESENTATIVE  GARA  noted  that [proposed  AS  12.55.125(i)(3)]                                                               
pertains  to   sexual  assault  in   the  second   degree,  which                                                               
stipulates in part that engaging  in sexual contact with somebody                                                               
without  his/her  consent  is  a   class  B  felony.    He  asked                                                               
Representative Neuman  whether he had  a minimum number  of years                                                               
of jail time in mind for offenses involving sexual contact.                                                                     
REPRESENTATIVE NEUMAN indicated that he did not.                                                                                
REPRESENTATIVE  GARA  observed  that  HB  353  proposes  to  send                                                               
somebody to  jail for four  to eight  years for such  an offense.                                                               
He  asked  Representative  Neuman  whether he  thought  that  was                                                               
REPRESENTATIVE  NEUMAN  responded that  he  thinks  that that  is                                                               
something  for  the  court  to   decide  based  on  circumstances                                                               
surrounding the offense;  each case will have to be  decided on a                                                               
case-by-case basis.                                                                                                             
REPRESENTATIVE GARA pointed out, though,  that HB 353 won't leave                                                               
that decision to the court.                                                                                                     
2:10:34 PM                                                                                                                    
CHAIR  McGUIRE  asked  Representative   Gara  whether  he  has  a                                                               
constructive idea about how to remedy his particular concern.                                                                   
REPRESENTATIVE  GARA  offered  his  opinion  that  Representative                                                               
Neuman  doesn't recognize  the ramifications  of simply  doubling                                                               
REPRESENTATIVE  NEUMAN responded  that what  he tried  to provide                                                               
for proportionality  in the sentencing  structure, adding  HB 353                                                               
is meant to send a strong message.                                                                                              
REPRESENTATIVE GARA  explained that  the court currently  has the                                                               
flexibility to  reduce the sentence,  if it's really  minor, down                                                               
to two years.   He said that he agrees with  the concept that the                                                               
court should be  able to apply it to the  factual circumstance of                                                               
a case,  but HB 353  would take  that flexibility away  and would                                                               
mandate a minimum sentence of at least four years.                                                                              
CHAIR  McGUIRE explained  that what's  difficult in  establishing                                                               
mandatory minimum  sentences is that [legislators]  don't get the                                                               
opportunity to  sit as  judges in  front of  each of  these cases                                                               
with  unique circumstances.   Instead  [the committee]  is simply                                                               
saying what  the minimum sentence  will be in  every circumstance                                                               
and not allowing a judge or a jury to consider other factors.                                                                   
REPRESENTATIVE  KOTT referred  to [proposed  AS 12.55.125(i)(4)],                                                               
which pertains  in part  to sexual assault  in the  third degree.                                                               
He noted that  the proposed maximum term of  imprisonment is "not                                                               
more than 30 years", triple the current maximum sentence.                                                                       
2:17:43 PM                                                                                                                    
REX SHATTUCK,  Staff to Representative Mark  Neuman, Alaska State                                                               
Legislature,  one of  the  prime  sponsors of  HB  353, noted  on                                                               
behalf of Representative  Neuman that one of the  key things that                                                               
Legislative  Legal  and  Research  Services  pointed  out  during                                                               
drafting was  that proportionality was critical,  and so doubling                                                               
the minimum sentencing range was  the only scheme that they could                                                               
come up with that allowed proportionality throughout.                                                                           
REPRESENTATIVE GARA  remarked that  he doesn't  "buy" Legislative                                                               
Legal and Research Services' analysis  about proportionality.  He                                                               
said he doesn't think that  the sentences for all sexual offenses                                                               
should be increased.                                                                                                            
MR.  SHATTUCK noted  that at  the present  time, the  courts have                                                               
acknowledged present presumptive sentencing as acceptable.                                                                      
REPRESENTATIVE GARA  remarked that how long  someone is sentenced                                                               
for a certain  kind of conduct is  a policy call.   He added that                                                               
just  because the  sentence for  the most  significant crime  was                                                               
increased,  it  doesn't  have  to  be  increased  for  the  least                                                               
significant crime.                                                                                                              
CHAIR McGUIRE interjected that those  are two separate arguments.                                                               
She said  that if  there are  proportionality arguments  that the                                                               
drafter is advancing,  the committee should know  what those are.                                                               
However,  if it's  a  policy  call that's  being  made, that's  a                                                               
separate issue.   She asked whether judges in  Alaska are failing                                                               
to   provide  serious   sentences  for   very  serious   [sexual]                                                               
predators.  If  such is the case, that's  where mandatory minimum                                                               
sentencing plays a role.                                                                                                        
2:24:20 PM                                                                                                                    
REPRESENTATIVE  COGHILL  requested   information  regarding  past                                                               
sentencing and the  use of sentencing mitigators.   If the courts                                                               
are continually using mitigators  or aggravators, the legislature                                                               
should know about it.                                                                                                           
REPRESENTATIVE GARA distributed  a chart which lists  what HB 353                                                               
would do  in the various  crimes compared  to what has  been done                                                               
over the last few years as  the sentencing laws have changed.  He                                                               
informed  the committee  that he  had talked  to State  of Alaska                                                               
employees who  work in the  prison system with  sexual predators,                                                               
and his  understanding is that  in the youth system,  the success                                                               
rate of treating people so that  they don't reoffend is around 30                                                               
2:29:32 PM                                                                                                                    
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office  of  the  Attorney  General,   Department  of  Law  (DOL),                                                               
informed  the   committee  that   the  DOL   supports  increasing                                                               
sentences  for  sex  offenders  mainly for  the  reason  that  in                                                               
general, it appears that rehabilitation  efforts don't work; [the                                                               
bill]  will make  the streets  safer, though  the debate  on what                                                               
would be  the right number of  years to sentence someone  for the                                                               
aforementioned crimes  is a  policy call  for the  legislature to                                                               
make.  The DOL has been  working with Senators Bunde and Guess on                                                               
SB  218,  which  also  increases   felony  sentences  for  sexual                                                               
offenses, and the proportionality has been discussed.                                                                           
MS.  PARKES  explained that  proportionality  means  that as  the                                                               
offenses  become   more  serious,  the  penalties   becomes  more                                                               
serious, and  so the DOL  is concerned that the  legislature keep                                                               
in mind  how increasing sentences  for sexual  offenses interacts                                                               
with the sentencing  for other offenses.  For  example, murder in                                                               
the second  degree has a  mandatory minimum sentence of  10 years                                                               
and  a  maximum sentence  of  99  years.   When  the  legislature                                                               
decides on a  minimum number of years for  an unclassified sexual                                                               
offense, there needs  to be a clear policy statement  made on why                                                               
the  legislature feels  that that  offense should  have a  higher                                                               
mandatory  minimum  sentence than  the  crime  of murder  in  the                                                               
second degree.   Those are  the issues the  court is going  to be                                                               
looking at in reviewing the bill's increased sentences.                                                                         
MS. PARKES  noted that the  sentencing for  class B and  C felony                                                               
sexual  offenses  needs  careful review  because  those  offenses                                                               
involve a lot of different  conduct, including consensual conduct                                                               
and  teacher/student relationships.    The DOL's  recommendation,                                                               
therefore, is to have a wide range of sentences.                                                                                
CHAIR  McGUIRE requested  that Ms.  Parkes provide  the committee                                                               
with an official response, including  suggestions.  Chair McGuire                                                               
asked Ms.  Parkes whether she  is more comfortable with  [SB 218]                                                               
or HB 353.                                                                                                                      
MS. PARKES expressed  her support for the  polygraph provision of                                                               
SB 218  that is now  included in HB 353,  Version G.   She opined                                                               
that  that's a  very important  provision because  it's "the  one                                                               
little bit of preventative medicine."                                                                                           
CHAIR McGUIRE  requested the guidance  of Ms. Parkes  in tracking                                                               
what things  the DOL believes are  better in one bill  versus the                                                               
REPRESENTATIVE GARA  remarked that just because  the sentence for                                                               
the most  serious [crime]  is increased,  that doesn't  mean that                                                               
the sentence for the least serious has to be increased.                                                                         
MS. PARKES concurred.                                                                                                           
REPRESENTATIVE GARA  mentioned that  he is sympathetic  to giving                                                               
judges  more discretion  in increasing  the ranges  for the  more                                                               
serious crimes.   He  added that  he'd be  more sympathetic  to a                                                               
bill that  increased the [upper  ranges of the  minimum mandatory                                                               
sentences], but left the [lower ranges] as they are currently.                                                                  
2:36:41 PM                                                                                                                    
CHAIR  McGUIRE  suggested  that   [the  committee]  may  want  to                                                               
[increase the  sentences] for more serious  offenses and maintain                                                               
the judge's  discretion to use  the current sentencing  range for                                                               
less serious offenses.                                                                                                          
REPRESENTATIVE COGHILL concurred, adding that  as a result of the                                                               
range  of issues  [the court]  will be  dealing with,  a one-size                                                               
answer won't fit all circumstances.                                                                                             
REPRESENTATIVE  GARA noted  that even  the least  serious [sexual                                                               
offenses the bill addresses] are still felonies.                                                                                
2:39:39 PM                                                                                                                    
PORTIA PARKER, Deputy Commissioner,  Office of the Commissioner -                                                               
Juneau, Department  of Corrections (DOC), informed  the committee                                                               
that the DOC  supports HB 353 and is pleased  with the provisions                                                               
that have  been [inserted]  into Version G.   She  clarified that                                                               
HB 353 in no  way impacts juvenile sex offenders,  rather it only                                                               
impacts adult  sex offenders.   With regard to  treatment issues,                                                               
it's  very difficult  to determine  what works  and what  doesn't                                                               
work  with particular  offenders.   Adult  sex  offenders are  an                                                               
incredibly  diverse  group  - low-risk,  medium-risk,  high-risk,                                                               
extremely high-risk.  The danger  that a sex offender presents to                                                               
society is  based on how many  crimes he/she will commit,  or may                                                               
commit,  or  has committed,  and  the  harm  he/she does  to  the                                                               
victim, which can range drastically.   She relayed that there are                                                               
things the DOC is able to  do to mitigate that risk upon release,                                                               
one  of them  being  treatment in  the  community with  intensive                                                               
supervision,  including using  the  polygraph as  a component  of                                                               
treatment to try to control  and alter the behavior of offenders.                                                               
She added that this is "very, very difficult to do."                                                                            
MS. PARKER remarked that there  has been some success with lower-                                                               
risk offenders or  offenders who are highly  motivated to change.                                                               
Those who are not motivated to  change are much more difficult to                                                               
influence.  Most sex offender  treatment providers will never say                                                               
that  treatment  will  cure  a sex  offender,  because  it's  not                                                               
possible.   A  sex offender  is engaged  in a  relapse prevention                                                               
plan   and  cognitive-behavioral   [therapy].     Increasing  the                                                               
mandatory minimum  sentences for repeat Class  A and unclassified                                                               
felony  sex offenders  is  how  the public  is  protected.   With                                                               
lower-risk  sex   offenders,  there's   a  chance   that  current                                                               
prevention programs  that focus  specifically on  those offenders                                                               
will be much more cost-effective for the state.                                                                                 
2:43:16 PM                                                                                                                    
MS.  PARKER, in  response to  a question,  assured the  committee                                                               
that [the polygraph testing] referred to  in the bill will not be                                                               
used in  legal proceedings; polygraph  testing will only  be used                                                               
for post-conviction  sex offender  supervision and  management in                                                               
the community.   In response  to comments, she explained  that it                                                               
will  be used  similar  to  the way  urine  analysis  is used  in                                                               
substance abuse treatment.   It's to verify what  is happening in                                                               
treatment, whether conditions are being  met, and to determine if                                                               
any relapse behavior is occurring  or whether the sex offender is                                                               
engaging  in high-risk  behaviors; in  this way  the DOC  will be                                                               
able  to intervene  more quickly  and  get the  offender back  on                                                               
track, or increase the number  of visits or treatment sessions if                                                               
the DOC feels that such is warranted.                                                                                           
2:45:46 PM                                                                                                                    
CHAIR  McGUIRE   announced  that  committee  will   hold  HB  353                                                               
[Version G]  over, and  requested  a  presentation regarding  the                                                               
polygraph program  and how the DOC  intends to implement it  as a                                                               
part of HB 353.                                                                                                                 

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