Legislature(2005 - 2006)CAPITOL 120
02/08/2006 01:00 PM JUDICIARY
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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 offenses." 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 appropriate. 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 "everything." 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 percent. 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 other. 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.