Legislature(2007 - 2008)SENATE FINANCE 532
05/12/2007 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HCR6 | |
| HB113 | |
| HB162 | |
| HB90 | |
| HB166 | |
| HB90 | |
| SB178 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 177 | TELECONFERENCED | |
| + | HCR 6 | TELECONFERENCED | |
| + | HB 113 | TELECONFERENCED | |
| + | HB 90 | TELECONFERENCED | |
| += | HB 162 | TELECONFERENCED | |
| + | HB 166 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE CS FOR CS FOR HOUSE BILL NO. 90(JUD)
"An Act relating to the purchase of alcoholic beverages and
to access to licensed premises; relating to civil liability
for certain persons accessing licensed premises; requiring
driver's licenses and identification cards to be marked if
a person is restricted from consuming alcoholic beverages
as a result of a conviction or condition of probation or
parole and relating to fees for the marked license or card;
relating to the information contained on driver's licenses;
requiring the surrender and cancellation of driver's
licenses and identification cards under certain
circumstances; relating to the reporting of certain crimes;
relating to prostitution; relating to the DNA registration
system; relating to credit toward service of a sentence of
imprisonment; relating to violation of probation and parole
conditions by sex offenders; relating to bail; relating to
distribution of certain materials to minors; relating to
time limitations for prosecution of certain crimes;
relating to sex offender registration; relating to the
maximum time for probation; relating to certain post-
conviction relief applications; relating to good time; and
providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Stedman expressed that this bill proposes a fairly
substantial policy change.
10:35:21 AM
REPRESENTATIVE RALPH SAMUELS, co-sponsor of the bill, considered
the majority of the changes proposed in the bill as small policy
changes. Most were proposed by the Governor Sarah Palin
Administration to address loopholes in the State's criminal
justice system. The Department of Law would provide more in-
depth information on the more substantive changes included in
the bill
10:36:33 AM
Representative Samuels reviewed the key components of the bill.
It would allow a sex offender who violated certain conditions of
their probation or parole to be charged with a class A
misdemeanor. This provision was requested by the law enforcement
community.
Representative Samuels stated that the bill would also expand
the penalty for sending indecent material to minors. Currently
this is only a crime if the material being sent portrays minors.
This bill would expand that to include pornographic material
depicting adults.
Representative Samuels stated that the bill would also allow for
the forfeiture of property such as computers that might be used
to electronically distribute indecent material to minors.
Representative Samuels advised that the bill would also add
murder, attempted murder, and kidnapping to the list of crimes
exempted from the State's statute of limitations.
10:37:34 AM
Representative Samuels stated that expanding the list of crimes
exempted from the statute of limitations would assist the
State's cold case investigative unit's activities. This unit,
which has received increased funding from the Legislative in
recent years, has had success in solving several old murder
cases including the "infamous case" about the murder of a woman
named Bonnie Craig.
Representative Samuels stated that other changes include further
defining what would be considered "new information" as it
relates to bail hearings and disallowing electronic monitoring
time in a private residence from qualifying as a credit toward a
person's sentencing time.
10:38:56 AM
Representative Samuels continued his review of the bill. It
would increase the maximum time a person convicted of a sex
offense could be on probation to 25 years. This would allow
conformity with sex offender legislation adopted the previous
year.
Representative Samuels also pointed out that the bill would
change current law to require individuals convicted of
distributing indecent materials to minors electronically to
register as a sex offender.
10:39:35 AM
Representative Samuels stated that a new provision of the bill
also addressed post-conviction relief. This refers to the
situation where a person would "go to court yet again to try and
get" their conviction mitigated after they had been convicted
and the appeals they filed failed.
Representative Samuels explained that this provision resulted
from a victims' rights movement that started after a 1985 murder
in Anchorage that was "perpetrated by a 15 year old girl and a
19 year old man". The daughter of a woman who was involved in
that case, and who has since died, is still "being dragged into
court 22 years later" due to continuing post-conviction relief
proceedings. This legislation would further efforts to tighten
up post-conviction relief hearings.
10:40:31 AM
Representative Samuels stated that the bill also specifies that
a person could not receive "good time" sentencing deductions for
time spent in a treatment program. This would apply to programs
outside of the Department of Corrections programs which are
conducted in house.
10:40:56 AM
Representative Samuels advised that the changes he would now
address might be more appropriately addressed by the Department
of Law or by Senator Dyson's staff as they had assisted in their
development.
Representative Samuels continued. Changes were made to statutes
through which individuals accused of victimizing women and
children by forcing them into prostitution, are prosecuted. This
provision, which had been proposed in a separate bill, had been
"rolled in" to this bill by the Senate Judiciary Committee. He
and the bill's co-sponsor, Representative Bill Stoltze, support
that provision's addition.
Representative Samuels advised that the Senate Judiciary
Committee also added language to the bill that would allow for
deoxyribonucleic acid (DNA) genetic testing collection at the
time of arrest. The DNA language in this bill mirrors that of
legislation enacted a few years prior which has allowed the
State's cold case prosecutors to use DNA evidence to arrest a
man in the case of Bonnie Craig, an 18-year old University of
Alaska Anchorage student who was murdered.
Representative Samuels informed the Committee that this bill
"would allow DNA to be collected like a fingerprint" at the time
of arrest. This could be further addressed by the Department of
Law.
Representative Samuels qualified that the DNA sample would be
destroyed if there was no conviction.
10:42:37 AM
Representative Samuels continued. The Senate Judiciary Committee
also added a provision to the bill, referred to as Kiva's Law,
which would require a person who witnesses a crime against a
child to report it.
10:43:01 AM
Representative Samuels informed the Committee that the Senate
Judiciary Committee also rolled in language from HB 14-RESTRICT
ACCESS TO ALCOHOL which had recently passed the House, into this
bill. This language would require the driver's license or other
legal identification of a person who was ordered by the court
not to purchase alcohol to be marked with some identifying
color. This would alert an establishment not to sell alcohol to
that individual. This language would not hold an establishment
liable and would in fact, allow the establishment to bring a
$1,000 civil penalty case against such a person.
Representative Samuels concluded his review. The Department of
Law would review the more legal and technical nature of the
bill. Other than the DNA testing, the majority of the bill could
be considered an effort to clean up the laws.
10:44:24 AM
REPRESENTATIVE BILL STOLTZ, co-sponsor of the bill, communicated
that the primary goal of this bill was to close existing
loopholes in sex offender laws and further victim's rights. The
bill was expanded to assist with such things as cold case
investigations. He and Representative Samuels consider the bill
"a pretty good omnibus measure".
10:45:23 AM
RICK SVOBODNY, Deputy Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law, informed the
Committee that the Department supported the bill with one
exception. That being Sections 5 through 9, page 4 line 27
through page 7, line 13 which pertain to the Kiva's Law
provisions. This language would "criminalize" an innocent
bystander were they to witness a crime against a child and not
report it.
Mr. Svobodny stated that incorporating this requirement into the
bill "is not necessarily a bad change" since people should be
"socially responsible" particularly in regards to situations
incurring serious harm to children. However, there is concern
that this provision would create "difficult problems" for the
prosecutor who tries the murderer or a rapist in that case in
court. This is because a witness not reporting the crime would
themselves be charged with a crime and would thereby "have the
Fifth Amendment privilege not to testify".
Mr. Svobodny clarified however that this could be accommodated
because the Legislature has provided the Attorney General "the
authority to grant immunity to a witness".
Mr. Svobodny informed the Committee that he had once been the
person designated by the Attorney General to make the witness
immunity decisions. In his 30 years as a prosecutor, that "was
the hardest thing to do".
10:48:04 AM
Mr. Svobodny explained that the problem was not "that the person
witnessed a crime but didn't call"; it is because determining
whether to grant immunity to a witness with Fifth Amendment
privileges is "a guess". The system established in this State
allows the witness to tell the court, in secret, information
specific to their involvement in the case. The judge in turn
tells the Department of Law designee whether the witness's
action was "a serious felony, a felony, a misdemeanor, or the
person doesn't have the privilege".
Mr. Svobodny stated that making the immunity determination,
particularly in the middle of a murder trial, is difficult. It
also delays trials and the issue often arises when a trial is
occurring. He recounted some of the scenarios he experienced
when having to make a witness immunity decision.
Mr. Svobodny restated the position that requiring someone to
report a crime against a child is a good social policy. It would
however, incur problems for prosecutors, for victims whose
trials might be delayed as a result of the process, and would
increase expenses to the public defenders office due to such
things as conflict of interest matters.
Mr. Svobodny suggested that "an easy solution" to the problem
could be to change the penalty from being a Class C felony to
being a violation. This would maintain the social obligation of
reporting the crime but would not incur Fifth Amendment
privileges. This is the recommendation of the Department of Law.
10:50:26 AM
Mr. Svobodny concluded by stating that the Department of Law
supports the bill with the exception of the witness reporting
provision.
Co-Chair Stedman asked whether Mr. Svobodny wanted to review in
more detail any other section of the bill.
Mr. Svobodny reiterated that the Department was in support of
other sections in the bill. He was more familiar with some
sections than others, specifically those proposed by Senator
Dyson and the two bill sponsors.
10:50:59 AM
Mr. Svobodny noted, for instance, that he was not very familiar
with the provision prohibiting a person on probation from
purchasing alcohol. Nonetheless, he would attempt to answer any
questions the Committee might have.
10:51:17 AM
Senator Elton directed attention to language in Section 24
subsection (d) page 13 lines 1 and 2 which would not allow the
time an individual spent being electronically monitored or in a
private residence to count toward their sentencing. During
Committee discussion on a separate bill regarding electronic
monitoring, testimony had touted electronic monitoring "in lieu
of incarceration". It was also "less expensive".
10:52:09 AM
Mr. Svobodny surmised that the bill being referenced related to
the electronic monitoring of gangs.
Mr. Svobodny informed the Committee that the State's appellate
courts have determined that people who are in the "functional
equivalent of jail" as a result of a court order "should get
credit for that time served". The provision in this bill would
establish a procedure through which the courts could make a
determination as to whether the circumstances of the electronic
monitored or restricted to home individual to whom this bill
applied met established "functionally equivalent" criteria; if
not, the time would not be credited.
10:53:35 AM
Mr. Svobodny shared that one such alcohol treatment program was
held in the Sergeant Preston Hotel bar outside of Anchorage. The
argument was that a person attending that program was stuck in
the hotel for the three days the program was being conducted.
Some judges allowed that time to be credited against the
sentence and some did not. The language in this bill would not
allow "good time credit" for attending that program. Good time
credit is a jail "administrative tool" in that if a person
behaves in jail they would receive one day off for every three
days served. "You aren't in jail if you're at home or on
electronic monitoring.
10:54:33 AM
Co-Chair Stedman asked Mr. Svobodny to address the drunk-driving
provisions in the bill.
Mr. Svobodny asked whether the provisions in question were those
in Sections 1 through 3 of the bill.
Co-Chair Stedman affirmed.
10:54:47 AM
Mr. Svobodny expressed that these sections were not necessarily
drunk driving provisions. They would, however, restrict a person
on probation or parole from drinking alcohol by prohibiting them
from being in a bar and purchasing alcohol. A mark on their
identification would identify them as a person prohibited from
drinking alcohol.
10:55:32 AM
Co-Chair Stedman asked for further information about the DNA
provisions.
10:55:38 AM
Mr. Svobodny noted that the State presently collects DNA from
individuals convicted of felony offenses or a crime against a
person. That action would not be altered by the provision
proposed in this bill. This bill would however, align Alaska
with other states that "have changed when they go through that
collection process," in that the DNA collection would be taken
at the time of arrest just as fingerprinting and photographing
the individual are currently done.
Mr. Svobodny noted that the DNA collection is a simple process
in which fluid is collected by swabbing the inside of a person's
mouth with a Q-tip. The sample is then sent to the State crime
laboratory where it is processed and stored in the national law
enforcement Combined DNA Index System (CODIS). If the person is
acquitted or the case dismissed, their DNA profile would be
removed from the database. He noted that this is not the case
with fingerprints: they are retained in the database.
Mr. Svobodny further noted that the national DNA collection
standard is specific to only 13 of the millions of DNA markings
that could be analyzed. Those 13 loci have been determined to
have "no known information other than identifiers". For example,
they could not provide information as to whether the individual
"was at greater risk of having breast cancer" than another. The
national standard was designed so that only identifying loci
could be captured for forensic purposes.
Mr. Svobodny informed the Committee that Alaska law makes it a
crime for someone to use DNA collected in this manner, for other
than forensic purposes. The limited loci collected, makes it
difficult to use for any other purpose anyway.
10:58:44 AM
Mr. Svobodny informed the Committee that the bill would add a
new provision to State law in that it would require DNA to be
processed and updated into CODIS within 90 days. Because this
will be a challenge to the State crime lab to accommodate, this
provision would not go into effect until 2009. The difficulty is
that in order to do DNA processing, the processor must undergo a
six month training period and then a six month supervised in the
field training period. The Department of Public Safety fiscal
note addressing this issue anticipates that four additional
staffers would be required to address the added workload this
provision would produce.
Mr. Svobodny specified that the Bonnie Craig murder case was
resolved due to DNA information maintained in the CODIS national
database. DNA taken at the crime scene was processed and stored
in CODIS. A hit was made in CODIS when another state, which
collects DNA from individuals when they are arrested, loaded an
arrested person's DNA to CODIS.
Mr. Svobodny stated that, as is standard practice, the State
then ran new DNA samples to verify the information.
11:00:58 AM
Senator Thomas supported the concept of the "good time"
administrative tool as well as the electronic monitoring tool,
particularly in regards to individuals with a history of gang
associations. Therefore, he was concerned that the opportunity
for early release would be affected by this legislation. He
inquired whether this restriction might have resulted from the
concern that individuals released early might have a tendency to
re-associate with gang-members.
11:01:52 AM
Mr. Svobodny considered the provisions in this bill to differ
from the concept of good time associated with individuals
convicted of gang-related crimes. Those individuals complete
their jail term and then are electronically monitored while on
probation. The process established in this bill would assist in
determining whether, for example, time a person spent being
electronically monitored should count toward their sentence. The
provisions in this bill would not have any affect on gang crime
sentencing.
Senator Thomas stated that the further questions he had
regarding the DNA provisions in the bill could be addressed
outside of this hearing.
Co-Chair Stedman ordered the bill HELD in Committee.
[NOTE: This bill was readdressed later in the hearing. See Time
Stamp 1:53:34 PM.]
11:03:35 AM
SENATE CS FOR CS FOR HOUSE BILL NO. 90(JUD)
"An Act relating to the purchase of alcoholic beverages and
to access to licensed premises; relating to civil liability
for certain persons accessing licensed premises; requiring
driver's licenses and identification cards to be marked if
a person is restricted from consuming alcoholic beverages
as a result of a conviction or condition of probation or
parole and relating to fees for the marked license or card;
relating to the information contained on driver's licenses;
requiring the surrender and cancellation of driver's
licenses and identification cards under certain
circumstances; relating to the reporting of certain crimes;
relating to prostitution; relating to the DNA registration
system; relating to credit toward service of a sentence of
imprisonment; relating to violation of probation and parole
conditions by sex offenders; relating to bail; relating to
distribution of certain materials to minors; relating to
time limitations for prosecution of certain crimes;
relating to sex offender registration; relating to the
maximum time for probation; relating to certain post-
conviction relief applications; relating to good time; and
providing for an effective date."
The bill was again before the Committee.
Co-Chair Stedman announced that a new committee substitute has
been developed for consideration.
1:53:54 PM
Co-Chair Hoffman moved to adopt Senate Finance committee
substitute, Version 25-LS0331\N, Luckhaupt, May 12, 2007, as the
working document.
Senator Dyson objected.
1:54:23 PM
Senator Dyson pointed out that the Version "N" committee
substitute eliminated [unspecified] language which had been
supported by two members of the Senate Bipartisan Working Group.
He considered that language to be a valuable component of the
bill.
1:54:34 PM
Co-Chair Stedman clarified that Sections 5 through 9 of SCS CS
HB 90(JUD) had been struck from the Version "N" committee
substitute.
1:54:56 PM
RICK SVOBODNY, Deputy Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law, advised the
Committee that the deletion of this language "aids in the
prosecution of criminal cases." Language in Sections 5 through 9
would have hindered the Department's ability to prosecute cases.
While requiring people who witness a crime to report it, "sounds
good" and is essentially a "good social goal", the granting of
immunity to individuals charged for non-reporting would place
"the prosecution at a disadvantage because the defense can
always challenge a witness."
Mr. Svobodny explained that a person testifying in a case who
has been granted immunity means that that person has "done
something bad" and is "getting away with it". For instance, a
drug dealer testifying in a murder case might be granted
immunity because the murder was a worse crime that their drug
dealing. Retaining this language in the bill would also
"criminalize the average citizen."
Mr. Svobodny provided numerous arguments against retaining this
language in the bill, including such things as delays in trials
and allowing someone to go free who otherwise would be held
accountable for their deviant behavior.
1:58:48 PM
Senator Dyson considered legislators' actions in establishing
laws to reflect the values and conduct that communities in the
State support. The deletion of Sections 5 through 9 is contrary
to the behavior western civilization has supported for
centuries. That being that when someone sees someone in harms
way they "have either a responsibility to help or report".
Senator Dyson contended that the adoption of Version "N" would
be detrimental to that responsibility. This language,
particularly the legal ramifications, "was widely debated"
during hearings on this bill in the Senate Judiciary Committee.
Their decision was to retain the language in the bill.
Senator Dyson had particular respect for the Chair of the Senate
Judiciary Committee [Senator Hollis French] and his extensive
criminal law background. Since he "passionately believes in
this", Senator Dyson "would accede to his wisdom, knowledge,
values, and I want it to stay in."
2:00:56 PM
Mr. Svobodny did not "disagree with the philosophy". However, it
could be argued that if it was considered to be such "a good
policy", perhaps it should be expanded to all crimes. Thus, a
legislator witnessing something bad on the Chamber Floor would
have to report it immediately to federal authorities and a
mother who sees her 18 year old hit his 16 year old brother must
report it to the authorities.
2:01:45 PM
Co-Chair Stedman interjected to note that another bill in
Committee, SB 5-FAILURE TO REPORT CRIMES, would address the
issue being deleted from this bill. That bill would be a better
vehicle to address this issue than this bill.
2:02:40 PM
A roll call was taken on the motion.
IN FAVOR: Senator Elton, Senator Huggins, Senator Olson, Senator
Thomas, Co-Chair Hoffman and Co-Chair Stedman
OPPOSED: Senator Dyson
The motion PASSED (6-1)
Committee substitute Version "N" was ADOPTED as the working
document.
2:03:20 PM
Senator Thomas directed attention to language in Section 5, page
4 line 27 through page 5 line 8. He interpreted the language to
indicate that a person who was at least 18 years of age, who
transmitted a picture of a female breast to a minor could be
charged with a sexual offense. Furthermore, if that person was
convicted they would be required to register as a sexual
predator for 15 years.
2:04:43 PM
Mr. Svobodny affirmed that was correct. If it was the person's
first offense, they would be required to register for 15 years.
They would be required to register for life for a repeat
offense.
2:04:57 PM
Senator Thomas understood that this situation would be limited
to the transmittal of stated material via the internet.
Mr. Svobodny confirmed that Section 5 was specific to the
electronic transfer of such material. The determination was that
a person stalking or "grooming" a child would likely transmit
adult material as opposed to child pornography.
Mr. Svobodny had conferred with Anne Carpeneti, Assistant
Attorney General in his Division, about this. She informed him
that the issue of transmitting adult pornography to a child over
the internet had not specifically been addressed before.
2:06:05 PM
Mr. Svobodny understood that prosecuting a young adult for this
action might be of concern. To that point, he reminded the
Committee that the Legislature had separately enacted provisions
relating to "young offenders" and the sexual abuse of a minor.
Those provisions specified that the perpetrator be at least 18
years or older and be at least four years older than the person
they offended against. Such language could be incorporated into
this bill if deemed necessary.
2:06:58 PM
Senator Thomas considered the majority of the offenses
identified in Section 5 substantial enough to warrant the
penalty. The lone area of concern however was the question of
whether "the offense" of transmitting an image of a female
breast over the internet "fit the crime".
2:07:22 PM
Mr. Svobodny understood the concern.
2:07:41 PM
Senator Dyson contended that historically, judges and juries in
our country "have been reasonably understanding about the
extenuating circumstances and I'm not worried about the overly
harsh penalties being levied against people that are trafficking
this kind of material on the internet." To that point, he
emphasized that the entirety of Section 5 dealt with the
distribution of the identified material "to minors, not to
adults."
Senator Dyson assumed that a person would not be prosecuted for
material that "inadvertently got to a minor". The act must be
intentional in order for someone to be prosecuted.
2:09:20 PM
Senator Olson asked whether people in the medical profession
would be exempt from the language in the bill.
2:09:44 PM
Mr. Svobodny affirmed that medical contact would be exempt.
"Sexual contact, including sexual penetration, "excludes
recognized medical treatment".
2:10:10 PM
Mr. Svobodny furthered clarified that Section 5 contains
language that currently exists under Alaska's Child Pornography
and Child Exploitation Statutes.
2:10:31 PM
Senator Olson pointed out that some of the language in Section 5
was new language as it was indicated as such.
2:10:42 PM
Mr. Svobodny clarified his remarks. While the language currently
exists under the aforementioned Statutes, it was new language
for the Statute addressed in this bill.
2:11:09 PM
Co-Chair Stedman asked the Department of Public Safety to speak
to their fiscal note.
DAVID SCHADE, Director, Division of Statewide Services,
Department of Public Safety, testified via teleconference from
an offnet location. The DNA collection provision specified in
this bill is new and would increase the workload of the
Department. The Department had previously utilized federal grant
money to support DNA collections from convicted offenders. Those
samples were sent to a federal laboratory.
Mr. Schade stated that the Department recently became pro-active
and began processing samples in-house. This enables them to get
results faster and allow "for earlier intervention into criminal
careers".
2:12:23 PM
Mr. Schade stated that in order to accommodate the increased
workload, the Department would be required to dedicate four
people to the program as a tremendous amount of time would be
required to track the samples. For example, if there was no
conviction, the samples must be removed from CODIS. He reviewed
the responsibilities of each of the four positions that would be
required.
Mr. Schade also noted that new computer programs and supplies
would be acquired. A 70 percent increase in samples is
anticipated.
2:14:12 PM
Co-Chair Stedman specified that the Department had submitted a
$540,000 fiscal note.
Senator Elton asked what would occur were a "hit" to occur on a
DNA sample that should have been destroyed due to a lack of a
conviction; specifically whether that hit would be admissible as
evidence in the other case.
Mr. Svobodny stated that the case would get litigated. This
issue is not addressed in the bill. Consideration could be given
to adding language to the bill that would hold the State
harmless in such an event.
2:15:58 PM
Representative Samuels voiced no objection to the adoption of
the Version "N" committee substitute. The deletion of the Kiva
Law language was done at the recommendation of the Department of
Law.
2:16:35 PM
Co-Chair Hoffman moved to report committee substitute, Version
25-LS0331\N from Committee with individual recommendations and
accompanying fiscal notes.
There being no objection, SCS CS HB 90(FIN) was REPORTED from
Committee with previous zero fiscal note #2 from the Department
of Law Administrative Services Division; indeterminate fiscal
note #3 from the Department of Administration Office of Public
Advocacy; indeterminate fiscal note #4 from the Department of
Administration Public Defender Agency; indeterminate fiscal note
#7 from the Department of Corrections; and new $540,000 fiscal
note from the Department of Public Safety, dated May 11, 2007.
RECESS TO CALL OF THE CHAIR 2:16:53 PM \ 5:19:19 PM
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