Legislature(2005 - 2006)SENATE FINANCE 532

02/02/2006 09:00 AM FINANCE


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 217 FULL & TRUE VALUE OF TAXABLE MUNI PROP. TELECONFERENCED
Moved SCS CSHB 217(FIN) Out of Committee
+ SB 218 CRIMINAL SENTENCING AND POLYGRAPHS TELECONFERENCED
Heard & Held
= SB 236 AK HOUSING FINANCE CORP DIVIDEND
Moved CSSB 236(FIN) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                                                                                                                                
     CS FOR SENATE BILL NO. 218(JUD)                                                                                            
     "An  Act relating to  sex offenders;  relating to reporting  of                                                            
     sex  offenders  and  child  kidnappers;  relating  to  periodic                                                            
     polygraph examinations  for sex offenders released on probation                                                            
     or parole;  relating to  sexual abuse  of a minor; relating  to                                                            
     sentencing  for  sex  offenders  and  habitual  criminals;  and                                                            
     providing for an effective date."                                                                                          
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Senator  Bunde, the  bill's sponsor,  stated that  while some  might                                                            
argue that there  is no sexual offense problem in  Alaska, he was of                                                            
a different  mindset. The  inclusion of three  separate sex  offense                                                            
articles in  a recent edition of an  [unspecified] Alaska  newspaper                                                            
would underscore how "typical" the problem is in the State.                                                                     
                                                                                                                                
Senator  Bunde  shared   Federal  Bureau  of  Investigations   (FBI)                                                            
statistics  that specify Alaska  as having  "the highest per  capita                                                            
rate  of reported  rapes" in  the nation.  It's  number of  reported                                                            
rapes is 71 percent higher  than that of the next highest state, and                                                            
the number  of reported rapes "is  just the tip of the iceberg",  as                                                            
police officers  would attest that a rapist would  have assaulted "a                                                            
great number of victims" before finally being caught.                                                                           
                                                                                                                                
Senator  Bunde informed  there are  currently  4,300 registered  sex                                                            
offenders  in  the  State  "and  sexual  abuse  continues  to  be  a                                                            
problem."                                                                                                                       
                                                                                                                                
9:09:39 AM                                                                                                                    
                                                                                                                                
Senator  Bunde stated  this  bill would  accomplish  two things:  it                                                            
would substantially  increase prison  sentences for those  convicted                                                            
of sexual crimes,  specially those  involving the sexual  abuse of a                                                            
minor; and it  would require that sexual offenders  on probation and                                                            
parole must submit to a polygraph examination.                                                                                  
                                                                                                                                
Senator  Bunde  noted  that  these  provisions  are  included  in  a                                                            
proposed committee substitute.                                                                                                  
                                                                                                                                
Senator Bunde  offered a motion to adopt CS SB 218,  24-LS1307/X, as                                                            
a working document.                                                                                                             
                                                                                                                                
There being  no objection,  the committee  substitute, Version  "X",                                                            
was ADOPTED as the working document.                                                                                            
                                                                                                                                
Senator Bunde stated that  research indicates there is a significant                                                            
increase in compliance  for people on probation and parole when they                                                            
are subjected  to polygraph testing,  even though those tests  would                                                            
be inadmissible  in court. "It is  easy for people who are  involved                                                            
in deviant  behavior to also be pretty  skillful liars".  They would                                                            
not be so successful in luring victims without that ability.                                                                    
                                                                                                                                
9:11:01 AM                                                                                                                    
                                                                                                                                
Senator Bunde  stated that  when people on  parole or probation  are                                                            
subjected  to  polygraph   testing,  "the  truthfulness"   of  their                                                            
compliance  increases by up to 70  percent. Anecdotal testimony  has                                                            
indicated  that some offenders  want to relocate  to Alaska  because                                                            
there are no polygraph  requirements. A polygraph  would be an asset                                                            
in addressing  habituated behavior. "Someone who is  a sexual abuser                                                            
of either  adults or children"  is unlikely  "to change their  basic                                                            
behavior".  While   rehabilitation  efforts  have  been   conducted,                                                            
evidence would  indicate that treatment does not have  a significant                                                            
effect on  the recidivism  rate of such  offenders. Therefore,  "the                                                            
only way to  prevent the creation  of future victims is simply  long                                                            
prison sentences."                                                                                                              
                                                                                                                                
Senator Bunde  stressed, "it would be incumbent upon  society to say                                                            
what our  standards  are." Alaska's  high rate of  sexual abuse  and                                                            
assault  is  not representative   of the  goal.  While  long  prison                                                            
sentences  would  be  expensive,  allowing   these  perpetrators  to                                                            
continue  their  activities  would  negatively   affect  the  public                                                            
"quality  of life"  and society  would suffer  expenses relating  to                                                            
victims of these crimes.  There would be a fiscal impact regardless.                                                            
This legislation  "would be an investment" that should  seriously be                                                            
considered.                                                                                                                     
                                                                                                                                
Senator  Bunde  acknowledged  the  assistance  provided  by  Senator                                                            
Gretchen  Guess, Senator  Dyson, Co-Chair  Green, the Department  of                                                            
Corrections, and the Department  of Law in the effort "to solve this                                                            
unfortunate problem for Alaska".                                                                                                
                                                                                                                                
Senator Bunde requested  Senator Gretchen Guess assist in explaining                                                            
the bill.                                                                                                                       
                                                                                                                                
9:15:01 AM                                                                                                                    
                                                                                                                                
SENATOR  GRETCHEN GUESS,  Senate District  J, thanked Senator  Bunde                                                            
for sponsoring  this bill. Existing activities are  "out of balance"                                                            
with the values of Alaskans and how they view these crimes.                                                                     
                                                                                                                                
Senator Guess  communicated that there are five differences  between                                                            
the  Version  "X" committee  substitute  and  the  Senate  Judiciary                                                            
version of  the bill. The  first change is  located in Sec.  2(b) on                                                            
page 3 line 2 as follows.                                                                                                       
                                                                                                                                
     (b) Failure to report a sex offender or child kidnapper is a                                                               
     class A misdemeanor.                                                                                                       
                                                                                                                                
Senator Guess  stated that  this would be  a new provision  to State                                                            
law.  The penalty  for this  was originally  proposed  as a  felony;                                                            
however, after  consultant with the  Department of Law, the  penalty                                                            
for a first time occurrence  was changed to a misdemeanor due to the                                                            
fact that an offender  could only be charged with  a misdemeanor the                                                            
first time they failed to register.                                                                                             
                                                                                                                                
Senator Guess  stated the next change is located in  Sec. 4(i)(3)(A)                                                            
page five  line two. The  length of incarceration  for a first  time                                                            
felony conviction  would be increased  to "five to 15 years"  rather                                                            
than  "ten  to  15  years"  as  depicted  in  the  Senate  Judiciary                                                            
committee substitute.  This determination was based  on "the breadth                                                            
of crimes" that  are included in second-degree offenses.  This would                                                            
also  assist in  "overcoming  some of the  Court  hurdles" that  are                                                            
anticipated.  She noted  that the  members of  the Senate  Judiciary                                                            
Committee are  comfortable with the  range proposed in Version  "X".                                                            
                                                                                                                                
9:17:20 AM                                                                                                                    
                                                                                                                                
Senator Guess  stated that the next  change is located in  Sec. 7(o)                                                            
page 6 line 31 through  page 7 line 8. Since the incarceration range                                                            
for second-degree  offenses  was broadened,  it was determined  that                                                            
the length  of probation  should  be increased.  Therefore, while  a                                                            
person  might  receive   "a  lesser  sentence,  they   would  be  on                                                            
probation"  for a  longer  period of  time. An  unclassified  felony                                                            
would require  15 years of probation,  a Class A or B felony,  would                                                            
require a ten-year  probation, and a Class C felony  would require a                                                            
five-year  probation period.  Input from the  Department of  Law and                                                            
the Department of Corrections was received in this regard.                                                                      
                                                                                                                                
Senator Guess stated that  two new provisions were incorporated into                                                            
Version "X"  as the result  of two amendments  offered by  Committee                                                            
Members.  These are incorporated  into the  bill on page eight.  She                                                            
deferred to Senator  Dyson who had offered the language  depicted in                                                            
Sec. 9 page 8 lines 19 through 23.                                                                                              
                                                                                                                                
     Sec. 9. AS 47.17.068 is amended to read:                                                                                   
          Sec. 47.17.068. Penalty for failure to report. A person                                                               
     who  fails to comply  with the  provisions  of AS 47.17.020  or                                                            
     47.17.023   and  who  knew  or  should  have   known  that  the                                                            
     circumstances gave  rise to the need for a report, is guilty of                                                            
     a class A [CLASS B] misdemeanor.                                                                                         
                                                                                                                                
     New text underlined. DELETED TEXT BRACKETED.                                                                             
                                                                                                                                
9:18:16 AM                                                                                                                    
                                                                                                                                
Senator Dyson  explained that  this provision  had been included  in                                                            
separate legislation,  SB 47-FAILURE TO REPORT CHILD  ABUSE/NEGLECT,                                                            
he  had  sponsored   "to  emphasize  the  importance   of  mandatory                                                            
reporting"  of statutory rape. It  would appear that these  offenses                                                            
are being "grossly" under-reported;  specifically in regards to very                                                            
young girls "who are being exploited by older folks."                                                                           
                                                                                                                                
Senator Dyson  continued that such  things as policy, training,  and                                                            
manuals implemented  by the Murkowski Administration  have served to                                                            
"profoundly   increase   the   awareness   amongst   the   mandatory                                                            
reporters"; government  employees in particular. After  six years of                                                            
meeting  with  people in  mandatory  reporting  positions,  such  as                                                            
public health  nurses, he has determined  that the emphasis  on such                                                            
reporting is important.  National statistics indicate that in excess                                                            
of 70 percent  of offenses perpetrated  against 11, 12, and  13-year                                                            
old  girls, the  male  involved  is over  the  age of  21.  National                                                            
statistics also  indicate that those men would each  have an average                                                            
of seven victims.                                                                                                               
                                                                                                                                
 9:20:00 AM                                                                                                                   
                                                                                                                                
Senator  Dyson concluded  that apprehending  these offenders  sooner                                                            
would limit  the number of victims  being exploited. He reported  an                                                            
instance  in which  a woman,  posing as  a 13-year  old,  telephoned                                                            
Alaskan clinics  seeking pregnancy  testing and contraceptives.  The                                                            
woman  told   health  care  providers   she  was  in  a   consensual                                                            
relationship with  a 27-year old male. She was advised  to lie about                                                            
her partner's age; otherwise he would get "busted."                                                                             
                                                                                                                                
9:20:50 AM                                                                                                                    
                                                                                                                                
Senator  Dyson stressed  that a "clear  message"  must be sent  that                                                            
"mandatory reporters  have a duty and a professional  responsibility                                                            
to report."  It has been  determined that those  15 years of  age or                                                            
younger could  not consent to sexual activity. While  most mandatory                                                            
reporters  understand   their  responsibility,   the  hope  is  that                                                            
increasing the penalty  for non-reporting would clarify the message.                                                            
                                                                                                                                
Senator Dyson  continued that the reporter would not  be required to                                                            
investigate  or "assure themselves"  of the  age differences,  their                                                            
responsibility  would be to presume  that a sexually active  15-year                                                            
old is "a victim of statutory rape".                                                                                            
                                                                                                                                
Senator  Dyson   voiced  appreciation   for  this  provision   being                                                            
incorporated into this bill.                                                                                                    
                                                                                                                                
Senator Dyson noted that  in addition to polygraph testing assisting                                                            
in making offenders  comply with the conditions of  their probation,                                                            
it has also "proven  to be very helpful" with their  treatment as it                                                            
inhibits their ability to lie and rationalize their crimes.                                                                     
                                                                                                                                
9:22:43 AM                                                                                                                    
                                                                                                                                
Senator  Guess  stated  that  the  final  change  incorporated  into                                                            
Version "X" is  the inclusion of Sec. 11 on page 8,  line 25 through                                                            
page 9, line 4.  This language would allow the Department  of Public                                                            
Safety to  distribute information  to the public  via such  means as                                                            
the sexual offender Internet registry.                                                                                          
                                                                                                                                
9:23:23 AM                                                                                                                    
                                                                                                                                
Senator Bunde  referred the Committee  to the "Draft 'White  Paper'"                                                            
titled  "The  Purposes  and Rationale  Underlying  the  Increase  in                                                            
Sentencing  Ranges for Felony Sex  Crimes in Alaska" [copy  on file]                                                            
he and Senator Guess had  compiled to address the fact that the bill                                                            
would implement  substantial increases in sentencing  time. A person                                                            
committing  a Class  A or Unclassified  felony sex  crime against  a                                                            
minor would be  subject to incarceration for 25 years.  A three-time                                                            
sexual offender would be  sentenced to 99 years in jail as "there is                                                            
no other way to protect the public".                                                                                            
                                                                                                                                
Senator  Bunde  continued  that in  addition  to the  extending  the                                                            
length  of time  an offender  would  spend in  jail,  there is  also                                                            
consideration of how the  sentences handed to sexual offenders would                                                            
compare  to  the   sentences  for  other  types  of  crimes.   Thus,                                                            
Legislative  findings about  "standards  of our  society" were  also                                                            
included into the draft  white paper. The white paper would continue                                                            
to be in draft  form in order to allow  other Committee concerns  to                                                            
be incorporated.                                                                                                                
                                                                                                                                
Senator  Bunde  asked  that  the  bill  be  held  in  Committee,  as                                                            
additional amendments were being drafted.                                                                                       
                                                                                                                                
9:25:22 AM                                                                                                                    
                                                                                                                                
Senator Bunde  stated that  he would await  direction from  Co-Chair                                                            
Green as to whether the  forthcoming amendments should be introduced                                                            
to Version "X" or incorporated into a new committee substitute.                                                                 
                                                                                                                                
9:25:37 AM                                                                                                                    
                                                                                                                                
Senator Olson  asked how the sentences  proposed in this  bill would                                                            
compare with other felony crimes such as manslaughter.                                                                          
                                                                                                                                
9:25:54 AM                                                                                                                    
                                                                                                                                
Senator Bunde opined that  the life of someone who had been sexually                                                            
abused and  who themselves "might  become an abuser, could  possibly                                                            
be even worse than death".                                                                                                      
                                                                                                                                
Senator Bunde  deferred to the Department of Corrections  to respond                                                            
to the sentencing comparisons.                                                                                                  
                                                                                                                                
Co-Chair  Green asked that  the Department  also explain its  fiscal                                                            
notes.                                                                                                                          
                                                                                                                                
Senator  Bunde  informed  that  the  forthcoming   amendments  would                                                            
specify  who would  be  required to  register  on the  Sex  Offender                                                            
Registry.  The amendments  would also address  the conflict  between                                                            
the requirement  to report a sexual offense and the  confidentiality                                                            
duties of an  attorney, and would  address the applicability  clause                                                            
of the bill.                                                                                                                    
                                                                                                                                
Co-Chair Green  affirmed that those  issues would be addressed  at a                                                            
later time.                                                                                                                     
                                                                                                                                
9:27:43 AM                                                                                                                    
                                                                                                                                
PORTIA  PARKER,  Deputy  Commissioner,  Department  of Corrections,                                                             
voiced  that the  Department  of Law  might  be better  prepared  to                                                            
respond to Senator Olson's  question. Nonetheless, she characterized                                                            
the as valid.  The intent of this  bill is to justify the  number of                                                            
victims  and  the  type  of crimes  committed,   especially  against                                                            
children. Sexual assault  is predominately a crime against children.                                                            
The  emotional, physical,  and  psychological  affects  of a  sexual                                                            
assault  crime "last  for  years and  years".  As more  research  is                                                            
conducted,  it has become obvious  that there are more victims  than                                                            
the criminal justice system is aware of.                                                                                        
                                                                                                                                
Ms. Parker  noted that such realizations  are included in  the white                                                            
paper.  "The belief is  that these  sentences" should  be long  as a                                                            
matter of public safety and to protect children.                                                                                
                                                                                                                                
9:29:12 AM                                                                                                                    
                                                                                                                                
Ms.  Parker stated  "the  message  is that  this is  an appropriate                                                             
sentence for this crime."  It might not be appropriate to compare it                                                            
to  other crimes.  Determining  appropriate  sentences  should be  a                                                            
Legislative determination.                                                                                                      
                                                                                                                                
9:29:55 AM                                                                                                                    
                                                                                                                                
Senator Guess  noted that  the numerous factors  that could  cause a                                                            
death  make comparison  of  sentences for  murder  to the  sentences                                                            
proposed in this  legislation difficult. The sentence  for murder in                                                            
the first degree  is 20 to 99 years; murder in the  second degree is                                                            
ten to  99 years.  While the  sentencing ranges  for sexual  assault                                                            
have  been increased  in this  bill, the  ranges  are narrower  than                                                            
those provided for murder.                                                                                                      
                                                                                                                                
9:30:33 AM                                                                                                                    
                                                                                                                                
Senator Guess  explained sentences for murder could  be less in some                                                            
instances  than  the  sentences  for  crimes   committed  under  the                                                            
provisions of  this bill; however, the maximum sentences  for murder                                                            
would  remain higher  than the  maximum allowable  sentence for  sex                                                            
offences.  Thus, the Court  would have more  discretion in  a murder                                                            
case  than this  legislation  would allow  for cases  involving  the                                                            
sexual abuse of a minor.                                                                                                        
                                                                                                                                
Co-Chair Green  noted that the Department of Law would  be available                                                            
to respond to Senator Olson's question.                                                                                         
                                                                                                                                
Senator Olson requested  that his concern not be misinterpreted. His                                                            
goal was to negate  Court challenges on the basis  of things such as                                                            
cruel and unusual punishment.                                                                                                   
                                                                                                                                
Senator Bunde  stated that this concern had been discussed  at great                                                            
length  with  the  Department  of Law.  Court  challenges  would  be                                                            
guaranteed  in this  regard.  Thus, another  reason  for the  "Draft                                                            
'White Paper'". A Legislature  record must be established as to what                                                            
is viewed  as "the impact  of sexual assault  on society and  why we                                                            
feel  this  is so  important,  and  thereby worthy  of  these  major                                                            
changes in sentencing."                                                                                                         
                                                                                                                                
Ms. Parker stated that  three Department of Corrections fiscal notes                                                            
accompany  this bill:  one  pertaining  to Statewide  probation  and                                                            
parole;   one  pertaining   to  offender   rehabilitation   programs                                                            
including the  addition of the polygraph  examination and  community                                                            
treatment as  part "of the Containment  Model for all sex  offenders                                                            
releasing  after  July  1,  2007";   and  the  third  pertaining  to                                                            
institutions.   The   fiscal   impact   resulting   from   polygraph                                                            
examinations  would occur  in FY  2008. The  impact on correctional                                                             
institutions,  while reflected as  zero for FY 2007, FY 2008  and FY                                                            
2009, would be indeterminate in future years.                                                                                   
                                                                                                                                
Ms. Parker stated that  the Department would be required to hire two                                                            
probation/parole  officers in  FY 2008 and  two more in FY  2009 "to                                                            
handle the increase  in workload associated with such  things as the                                                            
polygraph and  the offender treatment programs. There  are currently                                                            
934 sex offenders  on parole in the State. The fiscal  note is based                                                            
on an average  of 900 sex offenders under parole supervision.  "This                                                            
method  offers  the best  practice  in  the field  of  sex  offender                                                            
management  and supervision anywhere  at this time." The  additional                                                            
workload would assist in  capping probation officer's case workloads                                                            
specific to sex  offenders at 50 per officer. The  national caseload                                                            
recommendation is 35 to 40 per officer.                                                                                         
                                                                                                                                
9:35:41 AM                                                                                                                    
                                                                                                                                
Ms.  Parker   stated  that  the  fiscal   note  regarding   offender                                                            
rehabilitation  would address  the addition  of the  polygraph  as a                                                            
"tool" in  sex offender  treatment and  supervision. An anticipated                                                             
800  additional sex  offenders  would  participate  in this  program                                                            
after July 1,  2007. An estimated 50 percent of sex  offenders would                                                            
pay for their  treatment and cost of the polygraphs  they submit to.                                                            
Alaska  and other  states  currently require  offenders  to pay  for                                                            
their treatment after they  are released and begin work. Such things                                                            
as  income  and ability  to  work  are factors  in  determining  the                                                            
percent of the program  costs that the offender must pay. This would                                                            
be "the most  cost effective way to  manage and supervise  offenders                                                            
in the community where  they are getting the most assistance and the                                                            
most help  to" successfully  complete  probation  and parole,  while                                                            
providing "the greatest protection to public and to victims."                                                                   
                                                                                                                                
9:37:31 AM                                                                                                                    
                                                                                                                                
Co-Chair  Wilken referenced  the  Department of  Corrections  fiscal                                                            
note dated  2/1/2006 relating  to the polygraph  and rehabilitation                                                             
programs   required   for   offenders  on   probation   or   parole;                                                            
specifically   the  reference  to   "Total  Polygraph  &   Community                                                            
Treatment (State Cost Only):  FY 2008 $622,252 FY 2009 $1,124,504 FY                                                            
2010 $1,641,976".  He questioned whether  there might also  be costs                                                            
to communities.                                                                                                                 
                                                                                                                                
Ms. Parker stated that  the purpose of the information in the fiscal                                                            
note's analysis  would be to reflect the portion that  the offenders                                                            
must pay. There would be no expense to communities.                                                                             
                                                                                                                                
9:38:18 AM                                                                                                                    
                                                                                                                                
Senator Bunde  asked Ms.  Parker to share  her experience  regarding                                                            
the effectiveness of polygraph  testing; specifically to explain the                                                            
term "flat-lining  and why some offenders might choose  to do that."                                                            
                                                                                                                                
Ms. Parker  stressed that  the amount of  information that  would be                                                            
provided  by the polygraph  examination to  "the supervising  parole                                                            
officer and  treatment provider in  helping supervise the  offender"                                                            
is  very beneficial.  In  addition,  the  polygraph  examination  is                                                            
helpful in  that "it breaks  down the offender's  denial",  and thus                                                            
the offender  becomes "more receptive  to treatment and change".  In                                                            
order to avoid  undergoing a polygraph  examination, some  offenders                                                            
opt to forgo mandatory  parole or probation and remain  incarcerated                                                            
for the  duration  of their  sentence. That  is the  reason for  the                                                            
inclusion of Section  7, which would require an offender  to undergo                                                            
"a  period of  probation"  even if  they  were to  refuse  mandatory                                                            
parole. This would  also apply to repeat offenders  who would not be                                                            
subject  to  mandatory  parole.  "That   would  guarantee  that  the                                                            
offender will  be on supervision for  at least some period  of time,                                                            
they will be in treatment,  and they will be polygraphed. That is by                                                            
far  the  best  way  to  help  them  be  more  successful   as  they                                                            
reintegrate."                                                                                                                   
                                                                                                                                
9:40:24 AM                                                                                                                    
                                                                                                                                
WALT MONEGAN,  Police Chief,  Municipality  of Anchorage,  testified                                                            
via teleconference   from an  offnet site  in support  of the  bill.                                                            
"Despite all of the research  and efforts in this one area, there is                                                            
no proven treatment  or cure for sexual  predation." He categorized                                                             
all  rapists  as  being  serial  rapists.  He  supported   increased                                                            
sentencing  terms, as there had been  a decrease in sexual  assaults                                                            
when the  State implemented  a presumptive  eight-year sentence  for                                                            
sex offenders. He also  spoke in support of requiring polygraphs for                                                            
offenders on  probation or parole,  as it would act as a  safety net                                                            
for communities.                                                                                                                
                                                                                                                                
Chief Monegan  was "impressed" with  the results experienced  by the                                                            
State of Colorado Department  of Corrections pertaining to their use                                                            
of  the polygraph  for  sexual  offenders.  Thus, he  supported  the                                                            
implementation of this  practice in Alaska, as "there is no cure nor                                                            
treatment as effective as that fear of being caught again."                                                                     
                                                                                                                                
Chief Monegan,  responding to Senator Olson's sentencing  comparison                                                            
question, stated crimes  such as manslaughter are usually a one-time                                                            
occurrence, whereas  sexual offenders have numerous  victims. Inmate                                                            
statistics indicate  a cyclical relationship between  sexual offence                                                            
victims  and offenders,  as many  of those incarcerated  for  sexual                                                            
offences were themselves abused or assaulted as children.                                                                       
                                                                                                                                
Chief Monegan  thanked the Committee  for addressing this  important                                                            
issue.                                                                                                                          
                                                                                                                                
Co-Chair Wilken assumed Chair of the Committee.                                                                                 
                                                                                                                                
In response to  a question from Senator Bunde, Chief  Monegan stated                                                            
that he had been in law enforcement for approximately 32 years.                                                                 
                                                                                                                                
Senator  Bunde,  recognizing  the  Chief  as an  expert,  asked  his                                                            
experience in regards to  the opinion that, "there isn't a high rate                                                            
of re-offending and recidivism amongst sex offenders."                                                                          
                                                                                                                                
Mr. Monegan disagreed:  the rate of "recidivism of  sex offenders is                                                            
very very  high". Sex offender  registries  are indicative  of this.                                                            
Despite efforts to work  with sex offender inmates to stop them from                                                            
re-offending,  the reality is that  "they will. In essence,  they're                                                            
wired  wrong.   The  best   deterrence  is   not  to  get   caught."                                                            
Incarcerating  those who have failed treatment "is  the safest thing                                                            
for the community."                                                                                                             
                                                                                                                                
Senator  Bunde stated  that  there  is also  a contention  that  the                                                            
number  of  sexual  assaults  has  not  increased.  Referencing  the                                                            
aforementioned  newspaper articles,  he noted that two of  the three                                                            
articles  were offenses  against  minors.  To this  point, he  asked                                                            
whether  there  might simply  be  more  reporting  of the  crime  as                                                            
opposed to there being an increase of the crime.                                                                                
                                                                                                                                
Co-Chair Green resumed Chair.                                                                                                   
                                                                                                                                
Mr. Monegan  believed the  answer is "both".  More crimes are  being                                                            
reported as more  people realize that this is an issue,  and efforts                                                            
"to hide it behind closed doors" are reduced.                                                                                   
                                                                                                                                
9:45:31 AM                                                                                                                    
                                                                                                                                
Mr. Monegan  shared  the belief that  "for all  the sexual  offenses                                                            
that occur in a community,  only about ten percent would be reported                                                            
to  the police  department".  In  Anchorage,  the counselors  of  an                                                            
organization called "Standing  Together Against Rape" (STAR) receive                                                            
more "victimization"  contact than  the Anchorage Police  Department                                                            
does.  Increases  in  the  crime  would  be  expected  to  accompany                                                            
increases  in population.  However,  this  would be  accompanied  by                                                            
"heightened community  awareness and people more willing  to report"                                                            
were law enforcement officers provided the tools to work with.                                                                  
                                                                                                                                
Chief Monegan concluded his testimony.                                                                                          
                                                                                                                                
Co-Chair Green  noted that public testimony would  be halted for the                                                            
moment  in order  to  allow  the Department  of  Law to  respond  to                                                            
Senator Olson's earlier question.                                                                                               
                                                                                                                                
9:46:53 AM                                                                                                                    
                                                                                                                                
Senator  Olson  restated  the  question   as  how the  "significant                                                             
changes" proposed  for sexual offender  sentences would "compare  to                                                            
other egregious crimes"  such as manslaughter and murder sentencing.                                                            
The basis  for the  question is  to determine  whether the  proposed                                                            
sentencing  "would be  consistent with  what we want  to do  for the                                                            
criminal justice  system to make sure that there's  not a challenge"                                                            
from  somebody,  such  as  a  sex  offender,  based  on  this  being                                                            
interpreted as cruel and unusual punishment.                                                                                    
                                                                                                                                
9:47:28 AM                                                                                                                    
                                                                                                                                
DEAN  GUANELI,  Chief Assistant  Attorney  General,  Legal  Services                                                            
Section-Juneau, Criminal  Division, Department of Law, characterized                                                            
the proposed  "level  of sentences"  in this  bill as  being a  "big                                                            
increase  from current  law". The  question could  "be legitimately                                                             
asked  why are we  treating someone  who commits  manslaughter  less                                                            
harshly  than  someone who  attempts  to  rape someone  and  doesn't                                                            
complete that rape."                                                                                                            
                                                                                                                                
Mr. Guaneli recognized  "these as being largely policy  calls by the                                                            
Legislature".  A manslaughter  offense  is not a  "crime of  intent;                                                            
it's a crime of  recklessness". Many people consider  crimes such as                                                            
"negligence  or  recklessness  or crimes  that  are fueled  or  even                                                            
caused by alcohol"  as being difficult  to deter. In contrast,  many                                                            
view  sexual  offenses  as  being  intentional   and  often  involve                                                            
planning and manipulation;  therefore, "stiff sentences" could deter                                                            
the behavior.                                                                                                                   
                                                                                                                                
Mr.  Guaneli  remarked  that  this  could  "raise  difficult  policy                                                            
questions  for the Legislature;  and  they are going  to raise  some                                                            
concerns by members of  the judiciary". The Legislature must clarify                                                            
that it  has thoroughly  reviewed the  issue; it  has looked  at the                                                            
affects that these crimes  have on victims and society, and has made                                                            
a determination that the  proposed sentences "are justified in light                                                            
of all of those considerations."                                                                                                
                                                                                                                                
Mr. Guaneli stated  that while opponents might be  unable to prevail                                                            
on the  claim of  cruel and unusual  punishment,  "they might  claim                                                            
that this is  a violation of equal  protection because someone  else                                                            
who's  committed what  could  be labeled  a more  serious crime  was                                                            
getting  a lesser punishment…Equal  protection  claims don't  really                                                            
require   that  you  have   similarly  situated   defendants."   The                                                            
Legislature would  be justified in requiring "harsh  punishment" due                                                            
to the intent  that's involved and  the affects that sexual  offense                                                            
crimes  have on  society.  The hope  is that  "the  threat of  harsh                                                            
punishment" would be a deterrent to sex offenders.                                                                              
                                                                                                                                
9:51:16 AM                                                                                                                    
                                                                                                                                
Senator Olson  inquired to  the number of  sexual offenders  who are                                                            
found guilty of the charge.                                                                                                     
                                                                                                                                
Mr. Guaneli replied  that there are approximately  200 to 300 felony                                                            
sex offense convictions per year in the State.                                                                                  
                                                                                                                                
Senator Olson asked what  percentage this would be of the cases that                                                            
are tried.                                                                                                                      
                                                                                                                                
Mr.  Guaneli ascertained  that  approximately  40 to  50 percent  of                                                            
cases that  are "reviewed end up with  some conviction".  He pointed                                                            
out that  a significantly  larger number  of offenses are  reported,                                                            
however, as a  result of law enforcement investigations,  not all of                                                            
them result in prosecutable charges.                                                                                            
                                                                                                                                
Senator  Olson viewed  sexual  assault and  abuse  as being  serious                                                            
crimes. Continuing,  he asked what protection might  be available to                                                            
a  person "charged  with  sexual  assault  mainly because  they  had                                                            
consensual  sex with  somebody  and then  it turned  into a  lover's                                                            
triangle where she says its rape and he says no it wasn't."                                                                     
                                                                                                                                
Mr. Guaneli  affirmed  that such  cases do  occur. In  a case  where                                                            
there might be either a  long or "short term consensual relationship                                                            
between  adults, absent  factors  such as  violence  or drugs  being                                                            
involved,  juries find  it very  hard to  see that  that  consensual                                                            
relationship  all  of a  sudden turns  non-consensual."  Juries  are                                                            
particularly suspicious  when there is a charge after a breakup in a                                                            
relationship.  Prosecutors "are reluctant  to take those  cases to a                                                            
jury." The  fact that experience has  shown that such cases  "do not                                                            
often succeed",  is a consideration when determining  whether a such                                                            
a case would be pursued.                                                                                                        
                                                                                                                                
Senator Olson  asked whether  a husband has  ever been charged  with                                                            
sexual assault of his wife.                                                                                                     
                                                                                                                                
9:55:01 AM                                                                                                                    
                                                                                                                                
Mr. Guaneli  believed that "husbands  have been charged with  raping                                                            
wives."  The most  common  scenario would  be  a case  in which  the                                                            
couple were  separated and the husband  went "back to the  house and                                                            
maybe there's  some violence  involved." Usually  something  else is                                                            
involved that  would indicate "the nonconsensual or  forcible nature                                                            
of it."                                                                                                                         
                                                                                                                                
9:55:46 AM                                                                                                                    
                                                                                                                                
Senator Bunde  asked whether the conviction rate discussed  earlier,                                                            
included crimes that "were pled out".                                                                                           
                                                                                                                                
Mr. Guaneli  clarified that the statistics  would include  crimes in                                                            
which there  was a plea. The reality  is that "very few cases  go to                                                            
trial". While  the vast majority  of sexual  crimes cases result  in                                                            
plea agreements that could  include such things as reduced offenses,                                                            
the consent of the victim must be sought.                                                                                       
                                                                                                                                
9:56:54 AM                                                                                                                    
                                                                                                                                
Senator Bunde  asked Mr. Guaneli to  speak to the issues  that would                                                            
be addressed  in forthcoming  amendments:  specifically whether  the                                                            
applicability  clause,  which would  be  "a reach-back"  for  people                                                            
sentenced  prior to the  effective date  of this  bill, would  be in                                                            
violation of the State's Constitution.                                                                                          
                                                                                                                                
9:57:27 AM                                                                                                                    
                                                                                                                                
Mr. Guaneli  stated that  due to evidence  supporting the  polygraph                                                            
examination  as being "a  good tool in controlling  the behavior  of                                                            
sex offenders",  imposing  "that condition  on people who have  been                                                            
convicted in the past is  appropriate from a policy standpoint". The                                                            
question  is whether  that  "would be  Constitutional  from a  legal                                                            
standpoint". While  the sentencing of a person previously  convicted                                                            
of a crime could not be  increased after being imposed, "supervisory                                                            
remedial  measures", such  as the  sex offender  registry, could  be                                                            
imposed as such  an issue had prevailed in a legal  challenge before                                                            
the United  States Supreme  Court. Polygraph  examinations  would be                                                            
viewed  in the same  light. Nonetheless,  he  suggested language  be                                                            
included  in the bill's  Applicability  Section to  specify "to  the                                                            
extent  permitted   by  the  Constitution".   This,  combined   with                                                            
Department  of Corrections  efforts to carefully  choose which  past                                                            
offenders would  be subjected to the polygraph and  the acquiring of                                                            
approval  by  that  person's  sentencing   judge,  would  allow  the                                                            
procedures  to be upheld.   People  realize that  this "would  be an                                                            
appropriate measure  through which to help the offender  stay out of                                                            
trouble but to protect the public."                                                                                             
                                                                                                                                
9:59:56 AM                                                                                                                    
                                                                                                                                
Senator  Dyson  asked whether  a  mechanism  is currently  in  place                                                            
through  which  to notify  a  licensing  entity  were one  of  their                                                            
mandatory reporters convicted of failure to report.                                                                             
                                                                                                                                
Mr.  Guaneli  responded  that he  was  unaware  of there  being  any                                                            
automatic notification  mechanism. He noted that there  are a number                                                            
of different licensing  agencies, and he was unsure as to how such a                                                            
conviction would be addressed by the different entities.                                                                        
                                                                                                                                
There being  no further  questions  for the Department  of Law,  Co-                                                            
Chair Green announced that  public testimony would resume. She asked                                                            
testifiers to adhere to a three-minute timeline.                                                                                
                                                                                                                                
10:01:38 AM                                                                                                                   
                                                                                                                                
SIDNEY  BILLINGSLEA,   Criminal  Defense  Attorney,   testified  via                                                            
teleconference  from  Anchorage  in  opposition  to  the  sentencing                                                            
portion of  the bill. Legislation  enacted  last year increased  the                                                            
sentencing  levels for sex offenses  that State judges could  apply.                                                            
People  have not complained  that  the sentences  contained in  that                                                            
legislation were not harsh  enough. That legislation was the product                                                            
of  a  collaboration   of  national   district  attorneys,   defense                                                            
attorneys, and  attorney generals. There is no indication  that "the                                                            
sex offender law is broken and needs fixing."                                                                                   
                                                                                                                                
Ms. Billingslea  stated that the Legislature has also  addressed the                                                            
issue of sex  offender treatment.  As a result, a report  called the                                                            
"Sex  Offender  Treatment  Program  Initial  Recidivism  Study"  was                                                            
developed.  The  Legislature's  conclusion  that treatment  did  not                                                            
diminish  the recidivism  rate of  sex offenders  differed from  the                                                            
determinations   of  the   report.  As  a   result,  treatment   was                                                            
discontinued for incarcerated  sex offenders; however, sex offenders                                                            
were required  to receive treatment  at their own expense  when they                                                            
were released. She opined that treatment would be beneficial.                                                                   
                                                                                                                                
Ms. Billingslea  stated that the information  in the aforementioned                                                             
report that was the most  startling was that more than two-thirds of                                                            
sex offenders  were substance  abusers. A  high percentage  of those                                                            
offenders   are  Alaska   Natives.  One  of   "the  unintended   bad                                                            
consequences  of this  bill,  is that the  people  who commit  these                                                            
offenses  are,  for the  most  part, heavily  intoxicated  when  the                                                            
offenses are  committed. They are  for the most part Rural  Alaskans                                                            
and in  particular,  Alaska Natives."  Therefore,  "people for  whom                                                            
alcohol treatment would  be a successful deterrent of a one-time bad                                                            
sexual offense  would be incarcerated for an unimaginable  amount of                                                            
time, and the impact would be on Rural Alaskans."                                                                               
                                                                                                                                
10:06:20 AM                                                                                                                   
                                                                                                                                
MICHAEL  MOTERLY,   Attorney,  testified  via  teleconference   from                                                            
Anchorage  and spoke in opposition  to the  bill. He voiced  concern                                                            
regarding  the mandatory  reporting  requirements  specified in  the                                                            
bill,  as  they would  place  "a  burden  on people"  whom  have  no                                                            
reporting requirements  under State law. Most of these  requirements                                                            
would   accompany  professionals   as   part  of   their   licensing                                                            
conditions. However,  even were the reporting provisions  restricted                                                            
to licensed  professionals,  it  would pose  a conflict  with  their                                                            
ethical  obligations,  such  as the  attorney/client  privilege  and                                                            
confidentiality.  It might  also intrude into  other areas  that are                                                            
statutorily recognized with confidential relationships.                                                                         
                                                                                                                                
Mr.  Moterly stated  that,  as written,  the  reporting requirement                                                             
would apply to all citizens:  most people would be unaware that non-                                                            
reporting would  be a crime. He was  unaware of any other  provision                                                            
in law that would  pose such a burden on lay people.  State Statutes                                                            
currently exist  that require reporting of violent  crimes against a                                                            
child. The question could  be whether the creation of new laws might                                                            
be redundant or might "be hindering the prosecution" of others.                                                                 
                                                                                                                                
Mr.  Moterly agreed  with  many of  Ms. Billingslea's  concerns  and                                                            
voiced that  it was unfortunate that  the Department of Corrections                                                             
had not  addressed  "what possible  disparate  treatment this  might                                                            
have on  incarcerated people  in the Department  of Corrections"  in                                                            
regards to the  percentages of Rural verses Urban  or various ethnic                                                            
groups. He  also questioned  whether "there  might be community  and                                                            
cultural considerations  that ought  to be considered " rather  than                                                            
imposing   one  uniform   standard  across   the  State.  Like   Ms.                                                            
Billingslea,  he noted that statutory  changes increasing  sentences                                                            
were adopted  in both 2003  and 2005. In  consideration of  the fact                                                            
that no data about  those changes has of yet been  forthcoming, this                                                            
bill might  be premature both as a  deterrent and in regards  to the                                                            
fiscal impact.  The desired effects  might already be occurring  due                                                            
to that 2003 and 2005 legislation.                                                                                              
                                                                                                                                
Mr. Moterly stressed that  some of the provisions that accompany the                                                            
proposed  sentencing are  already in  existence as  a result  of the                                                            
2003  and 2005  changes,  such  as the  fact  that "Good  Time"  was                                                            
removed for second offenders.                                                                                                   
                                                                                                                                
Mr. Moterly noted  his concern in regards to the disproportionately                                                             
of the  proposed sentencing  when  compared to  other crimes.  While                                                            
murder and manslaughter  have been discussed, the  discussion should                                                            
include "benign  conduct"  such as when "someone  in a relationship                                                             
goes to second base with their significant other without the go-                                                                
ahead".  That person  could be charged  with assault  in the  second                                                            
degree.  Sexual contact  "even  over a  sweater of  a female  breast                                                            
would  carry  a sentence  of  five to  15  years" whereas  a  person                                                            
committing assault in the  first degree such as shooting or stabbing                                                            
someone, "would be looking at five to eight" years.                                                                             
                                                                                                                                
10:11:35 AM                                                                                                                   
                                                                                                                                
Senator  Dyson  stated  that  the  Legislature   established  a  law                                                            
approximately  five years prior that  pertained to "misprision  of a                                                            
child." That  bill reestablished  the "common  law concept  that all                                                            
adults have  the duty to go to the  rescue of a child that  is being                                                            
assaulted, kidnapped,  or molested". Were the adult  unable to go to                                                            
the rescue,  they would be required  to report the crime.  Therefore                                                            
the concept that  Mr. Moterly raised has been in law  for some time.                                                            
                                                                                                                                
10:12:37 AM                                                                                                                   
                                                                                                                                
Mr. Moterly  responded that  such a "concept  has been with  us as a                                                            
moral  obligation for  hundreds  of thousands  of  years." A  person                                                            
living in a  community would naturally  respond. While people  would                                                            
have both a moral  and statutory obligation to report  a child being                                                            
victimized,  reporting  someone  who  fails  to register  as  a  sex                                                            
offender would not "fall within that same moral category".                                                                      
                                                                                                                                
Senator  Dyson concurred,  but noted  that he would  argue "that  no                                                            
profession, including  attorneys and physicians" should  be exempted                                                            
from that moral and statutory obligation.                                                                                       
                                                                                                                                
10:13:51 AM                                                                                                                   
                                                                                                                                
BLAIR MCCUNE, Attorney,  testified via teleconference from Anchorage                                                            
in opposition  to the  bill; particularly  the fact  that no  fiscal                                                            
exact dollar  amounts were  attached to the  bill. While  estimating                                                            
fiscal costs  is difficult, testimony  has attested that  this would                                                            
be an expensive bill. The  Department of Corrections could provide a                                                            
breakout of the  number of people incarcerated for  each category of                                                            
assault  and a  multiplying factor  could  be utilized  in order  to                                                            
provide  a "conservative  estimate of  what the  costs are going  to                                                            
be".                                                                                                                            
                                                                                                                                
Mr. McCune noted  that newspaper articles have been  published about                                                            
the  current  overcrowding  in the  State's  jails.  The  Department                                                            
should   provide  more   information  to   the  Finance   Committee.                                                            
Information about  the costs to the Alaska Court System  should also                                                            
be considered,  as  the increased  penalties  would  result in  more                                                            
trials. Other  agencies such  as the Department  of Law, the  Public                                                            
Defender  Agency, and the  Office of Public  Advocacy would  also be                                                            
impacted.                                                                                                                       
                                                                                                                                
Mr. McCune suggested  that Mr. Guaneli "misspoke"  when he said that                                                            
sexual assault was a crime  of intent. "The mental state required to                                                            
prove sexual  assault is a knowing  conduct or a reckless  disregard                                                            
for lack  of consent".  The  true focus  of the  comments should  be                                                            
sexual predators.  Those are a small  percentage of "all  the sexual                                                            
offenders who come before the Courts in the State".                                                                             
                                                                                                                                
Mr. McCune  recalled an  older bill regarding  "civil commitment  of                                                            
sexual predators".  Efforts  should be made  "to separate the  wheat                                                            
from the chafe  and identify those who are truly dangerous  based on                                                            
a pre-deposition,   untreatable almost,  pre-deposition  for  sexual                                                            
offenses, and  to find them civilly." That bill was  not enacted due                                                            
to civil liberties concerns  and its fiscal impact. This legislation                                                            
might try to  accomplish the same  thing "in a more ineffective  way                                                            
because  it does  not separate  the  wheat from  the  chafe and  the                                                            
expenses of this type of bill have not been documented".                                                                        
                                                                                                                                
10:17:31 AM                                                                                                                   
                                                                                                                                
CARA  MCNAMARA,   Attorney,   testified  via   teleconference   from                                                            
Anchorage in opposition  to the bill. The proposed sentencing ranges                                                            
are based  on a "national  hysteria  on sex offenders  that  are not                                                            
supported by studies".  The "all rapist are serial  rapists" remarks                                                            
of  the Anchorage  Police  Chief  reflect  that  hysteria.  National                                                            
studies would  indicate that the remarks are not true;  however, "it                                                            
is a common myth".  She urged the Committee to refer  to the various                                                            
studies denoted  in the material [copy  on file] she had  submitted.                                                            
The conclusion  of the studies on  this issue would indicate  sexual                                                            
offenders,  as a group, have a much  lower recidivism rate  than the                                                            
general  prison   population.  This   should  be  a  consideration,                                                             
particularly  in regards  to  the sentences  of those  convicted  of                                                            
lower level sexual  assault crimes. Some sex offense  sentences have                                                            
increased four-fold.                                                                                                            
                                                                                                                                
Senator Bunde pointed out  that this legislation was being developed                                                            
long  before the  national  hysteria resulted  from  such things  as                                                            
Jessica's  Law.  The  public  is  often  slow  to  react  but  after                                                            
prompting,  they  do  react.  However,  this  issue  should  not  be                                                            
characterized as national hysteria.                                                                                             
                                                                                                                                
10:20:40 AM                                                                                                                   
                                                                                                                                
DAN LIBBEY,  Attorney, testified via  teleconference from  Anchorage                                                            
in opposition  to the bill. He questioned the need  for the "drastic                                                            
changes" proposed  in this legislation,  as there is no evidence  on                                                            
record that  something has  changed since  the sexual offender  laws                                                            
were  changed  in legislation  in  2005.  The  hysteria surrounding                                                             
sexual  offenders has  existed  for some  time, and  was  considered                                                            
during the development of the legislation enacted last year.                                                                    
                                                                                                                                
Mr. Libbey stressed  that an insufficient amount of  time has passed                                                            
since the enactment  of that legislation; therefore  it is too early                                                            
to determine whether it  has had any affect; specifically whether or                                                            
not it has reached "the objectives it was designed to reach".                                                                   
                                                                                                                                
Mr. Libbey  declared that there would  be issues such as  "disparity                                                            
of treatment with  Rural Alaskans, Native Alaskans  who certainly do                                                            
have a  heavy consumption  of alcohol  … and  other substance  abuse                                                            
issues that would come  with that. There would be a disproportionate                                                            
impact  on those  offenders and  on those  charges  that are  levied                                                            
against  Rural Alaskans.  That's a  very extreme  infirmity. It's  a                                                            
very grave concern with this legislation."                                                                                      
                                                                                                                                
Mr. Libbey  addressed the issue of  benign behavior such  as a young                                                            
man in college  at a party  who "happened  to touch a female  breast                                                            
and suddenly  is facing  a five  year mandatory  minimum"  sentence.                                                            
This conduct "is  very benign" in comparison to "aggravated  assault                                                            
and  manslaughter.  The disproportionate   sentencing  scheme as  it                                                            
relates  to those two  crimes leaves  this bill  in question."  This                                                            
would indicate  a "weakness  in the design  of the bill, and  in the                                                            
legislative record, and justification for the bill."                                                                            
                                                                                                                                
Mr.  Libbey  addressed  the  fiscal  impact  of this  bill  and  its                                                            
anticipated impact on the  Alaska Court System and the Department of                                                            
Law. He also  pointed out that the  fiscal impact on the  Department                                                            
of Corrections  is  unspecified. The  information  about the  bill's                                                            
fiscal impact is "severely lacking".                                                                                            
                                                                                                                                
Mr. Libbey urged the Legislature  to revise this legislation. As is,                                                            
it  would be  "prone  to  many attacks"  and,  due  to the  lack  of                                                            
evidence  and the  weaknesses  contained in  the  bill, the  efforts                                                            
being exerted would be for naught.                                                                                              
                                                                                                                                
Co-Chair Green informed  the testifier that he might not have had an                                                            
opportunity  to receive  the new  Department  of Corrections  fiscal                                                            
notes that "better  reflect" the Department's anticipated  expenses.                                                            
                                                                                                                                
10:25:09 AM                                                                                                                   
                                                                                                                                
KEVIN FITZGERALD,  Attorney and former  State Prosecutor,  Sex Crime                                                            
Unit,  Department   of  Law,  testified   via  teleconference   from                                                            
Anchorage  in  opposition to  "the  presumptive  sentencing  scheme"                                                            
proposed  in the bill. "It  is out of whack";  no justification  for                                                            
the increased  sentencing has been provided that would  suggest that                                                            
the recently  imposed  sex offense  sentencing "is  not meeting  the                                                            
sentencing criteria that  the Constitution requires" in this regard.                                                            
The presumptive  terms in the bill would substantially  increase the                                                            
presumptive  sentencing  over the  existing terms.  This bill  would                                                            
incur  "enormous costs",  including  an increase  in  the number  of                                                            
trials that  would transpire,  as defense  attorneys and  defendants                                                            
would  not  choose  "to  plea"  to  terms  such as  25  to  30  year                                                            
presumptive terms.                                                                                                              
                                                                                                                                
Mr. Fitzgerald  declared that this legislation is  indicative of the                                                            
Legislature's  view of the judiciary  system. In his experience,  he                                                            
could  not accept  the  argument  that there  is  not  the range  of                                                            
conduct  in   sex  offense  crimes   as  there  is  in  murder   and                                                            
manslaughter cases.  In response to Senator Dyson's  earlier remarks                                                            
about  proportionality,  he shared  that  the presumptive  term  for                                                            
manslaughter is five or  seven years depending on the circumstances.                                                            
While voicing  respect for Mr. Guaneli, he was not  convinced by Mr.                                                            
Guaneli's comments regarding people's "mental state".                                                                           
                                                                                                                                
Mr.  Fitzgerald   concluded   by   reiterating  the   fact  that   a                                                            
manslaughter  charge might  have a  five to  seven year presumptive                                                             
sentence  whereas a  sexual assault  in the  second-degree  offense,                                                            
such as  touching a female  breast through  clothing, would  carry a                                                            
substantially  longer  presumptive  term. The  Courts  would not  be                                                            
provided  the discretion  to sentence  according  to the breath  and                                                            
range of the circumstance.                                                                                                      
                                                                                                                                
10:31:18 AM                                                                                                                   
                                                                                                                                
MARJORIE  ALLARD,   Attorney,  testified  via  teleconference   from                                                            
Anchorage  in  opposition  to  the  bill  based  on  "the  issue  of                                                            
proportionality".  It  would appear  that  there is  "a disconnect"                                                             
between  the people  that would  be targeted  by this  bill and  the                                                            
purpose of the bill. While  serial rapists and repeat pedophiles are                                                            
a concern,  they would only  comprise "a  tiny percentage"  of those                                                            
who might  be convicted of  sex offenses in  this State. There  is a                                                            
broad  range of  sex  offenses and  offenders  in this  State.  Many                                                            
offenders suffer  from such things  as alcohol and substance  abuse.                                                            
The five-year  minimum sentence  that a judge  would be required  to                                                            
impose  on a  college man  at  the fraternity  party  who touched  a                                                            
woman's breast or perhaps  the 19-year old boy who might be touching                                                            
his 14-year old  girlfriend in a sexual way is quite  different from                                                            
current sentencing  range.  Current law would  provide a judge  some                                                            
discretion in  his sentencing. The judge should be  able to evaluate                                                            
who the offender is, "and  who is truly a risk to society and who is                                                            
not." The question  of who are we  trying to protect ourselves  from                                                            
is paramount  in this issue. Consideration  should also be  given to                                                            
the  expense  associated  with  this  bill.  The  "money  should  be                                                            
directed properly and efficiently"  toward the people who would pose                                                            
the greatest  harm rather against  "a large range of people  who are                                                            
being characterized  in  a particular  way that  is both unfair  and                                                            
unjust."                                                                                                                        
                                                                                                                                
10:33:30 AM                                                                                                                   
                                                                                                                                
Senator  Olson,   referencing  the   "Myths  and  Facts   about  Sex                                                            
Offenders"  handout [copy  on file]  that Ms.  Allard had  provided,                                                            
asked about the  paper's conclusion that the majority  of the people                                                            
who commit  a sex offense would not  re-offend. This is contrary  to                                                            
other information that the Committee has been provided.                                                                         
                                                                                                                                
10:34:08 AM                                                                                                                   
                                                                                                                                
Ms. Allard stated that  "it would be interesting to see the sources"                                                            
of some of  the findings that have  been provided to the  Committee.                                                            
Her conclusions  were based  on a broad range  of studies that  were                                                            
conducted   in   the  United   States   and   internationally.   The                                                            
"consistent"  conclusion was "the  people that we are talking  about                                                            
in terms of dangerous sexual  predators who are repeat offenders and                                                            
consistent repeat offenders  is a very small percentage and that the                                                            
vast majority  of people who are convicted  of a sexual offense  are                                                            
not going to re-offend."  "That seems to be the universal conclusion                                                            
of most of the  social science studies." She urged  the Committee to                                                            
review the  studies cited in the handout.  These properly  conducted                                                            
studies also  conclude that "first  time offenders are low  risk and                                                            
that in general,  sex offenders are not a homogenous  group and that                                                            
it is a small  percentage of the people convicted  of a sexual crime                                                            
who  end  up  being  these  very scary…sexual   predators"  of  whom                                                            
"warehousing isolation" might be the appropriate action.                                                                        
                                                                                                                                
Ms. Allard stated  that the problem with this bill  is that it would                                                            
treat everyone  in the same manner.  There are questions  as to whom                                                            
the bill  should be  addressing, what  the real  risks are,  and the                                                            
amount of money that would be spent.                                                                                            
                                                                                                                                
10:35:43 AM                                                                                                                   
                                                                                                                                
BRADLEY    HIEBERT-TRENER,    College   Student,    testified    via                                                            
teleconference  from  Anchorage   and  requested  the  Committee  to                                                            
consider  a situation  in  which an  18-year  old boy's  hand  might                                                            
"slip" and  touch the clothing over  a woman's breast during  a slow                                                            
dance at a high school  function. He would be subject to a five-year                                                            
jail sentence for that offense.                                                                                                 
                                                                                                                                
Mr. Hiebert-Trener  stated  that "warehousing"  good people  in this                                                            
manner would  not be the desired affect  of the bill. The  effort to                                                            
"crack down"  on non-reporting  might have  the effect of  deterring                                                            
people  who might  have been  offended  from seeking  help, as  they                                                            
might not want the person  who assaulted them to go to jail for five                                                            
years.                                                                                                                          
                                                                                                                                
10:37:55 AM                                                                                                                   
                                                                                                                                
PEGGY  BROWN,  Executive   Director,  Alaska  Network   on  Domestic                                                            
Violence and  Sexual Assault, testified  in Juneau that the  Network                                                            
is comprised of 20 organizations  throughout the State "that provide                                                            
direct  services   to  victims  of  domestic  violence   and  sexual                                                            
assault."  She  supported  the  comments  of  Walt  Monegan  of  the                                                            
Anchorage  Police Department.  "There is not  a national  hysteria."                                                            
Sexual offenses  against young  people in Alaska  are six times  the                                                            
national  average.  Alaska's  rates are  number  one in  nation  for                                                            
forcible rape and domestic violence related homicide.                                                                           
                                                                                                                                
Ms. Brown stated  that one of the reasons that the  Network supports                                                            
this bill is because  of the polygraph component.  Given the State's                                                            
statistics  in this  matter, the State  should "take  a very  strong                                                            
stand  in what  we are  willing  to accommodate  in  the State  with                                                            
sexual offending, sexual  predation." The fact that the sentence for                                                            
a first offense  is lower that those  for subsequent offenses  would                                                            
address concerns.                                                                                                               
                                                                                                                                
Ms. Brown stated that sex  offense behavior should not be tolerated.                                                            
Faith should  be provided  to the  Court system  to distinguish  the                                                            
difficult  situations  of  young  people  who may  have  had  sexual                                                            
contact with  another young  person. Those  are not the people  whom                                                            
the bill is targeting.                                                                                                          
                                                                                                                                
Ms. Brown  voiced  appreciation to  the efforts  exerted by  Senator                                                            
Bunde, Senator Dyson, and Senator Guess on this issue.                                                                          
                                                                                                                                
10:40:46 AM                                                                                                                   
                                                                                                                                
Co-Chair  Green noted that  the bill would  be held in Committee  in                                                            
order  to  allow  Senator   Bunde  to  develop  the  aforementioned                                                             
amendments or a committee substitute.                                                                                           
                                                                                                                                
Senator Bunde affirmed.                                                                                                         
                                                                                                                                
Senator Bunde responded  to comments from those in opposition to the                                                            
bill;  those "who  make  their living  defending  criminals".  While                                                            
efforts  "have  been made  to  address this  outrageous  problem  in                                                            
Alaska", the attempts that  have been made could be viewed as "half"                                                            
rather than  "full measures". No testimony  has challenged  the fact                                                            
that  the State's  sexual  assault  per capita  rate  is 71  percent                                                            
higher than the next highest  state. To address the challenge to the                                                            
validity  of  the  studies  supporting   the  State's  position,  he                                                            
referred the Committee  to the "2005 SOTEP Report" referenced in the                                                            
"Draft 'White  Paper'" which attests  that "treatment has  little if                                                            
any affect on recidivism."  "'Warehousing' of the most serious cases                                                            
is  probably  the  only treatment   that is  going  to  protect  our                                                            
citizens."                                                                                                                      
                                                                                                                                
Senator Bunde  hoped that the comments  about how alcohol  and other                                                            
substance abuse  might affect this  problem were not meant  to imply                                                            
"that  being drunk  is an  excuse  to be a  predator  or to  attack"                                                            
children  and women. While  alcohol might  reduce inhibitions,  "the                                                            
primary motivation  to attack"  women and  children must be  present                                                            
prior  to that. Continuing,  he  hoped that  the comments  regarding                                                            
Rural  Alaska  were not  meant  to  imply that  women  and  children                                                            
residing  in Rural Alaska  "were less deserving  of protection  from                                                            
sexual assault" than those living elsewhere.                                                                                    
                                                                                                                                
Senator Bunde  stated that "geography and substance  abuse is not an                                                            
excuse for being a sexual predator."                                                                                            
                                                                                                                                
Senator  Dyson   stated  that  he   had  carefully  considered   and                                                            
appreciated  today's testimony. Continuing,  he voiced disagreement                                                             
with  comments in  the sponsor  statement  that treatment  does  not                                                            
appear to work,  as there is evidence  that treatment, specifically                                                             
that conducted  by the State,  has worked.  "Alcohol and other  mind                                                            
altering  substances do reduce  inhibitions."  While this is  not an                                                            
excuse,  there  is the  opinion  that a  significant  percentage  of                                                            
incarcerated  perpetrators  suffer  from  prenatal  alcohol  issues.                                                            
Studies have shown that  those who experienced fetal alcohol affects                                                            
have neurological  disorders  and "have  great difficulty  reasoning                                                            
between  cause and affect.  They also  have a  reduced capacity  for                                                            
empathy." Their behavior  could be likened to the characteristics of                                                            
a sociopath.  They would have a "very  disproportionate"  propensity                                                            
to become perpetrators  and victims.  "The mental health  model does                                                            
not work for those  folks." While this does not excuse  the conduct,                                                            
it is  an issue that  must be  taken into  account when counseling,                                                             
sentencing, and releasing  such individuals. These people would have                                                            
a propensity  to re-offend. Therefore,  contrary to the position  of                                                            
the  sponsor, he  is of  the  position that  efforts  must be  taken                                                            
against  "lumping  all  sexual  perpetrators  in  exactly  the  same                                                            
categories."  The  studies  he has  reviewed  show that  "those  who                                                            
continually molest  children have arrested psychological  maturation                                                            
processes". Due to "arrested  development", they "are less likely to                                                            
be helped".                                                                                                                     
                                                                                                                                
Senator Dyson  stated that "long sentences"  would be beneficial  in                                                            
the case of incest perpetrators  because that would provide time for                                                            
their  children to  grow up.  Those people  are "less  likely to  go                                                            
after others" who were not vulnerable family members.                                                                           
                                                                                                                                
10:46:42 AM                                                                                                                   
                                                                                                                                
Senator   Dyson   shared  that   statistics   regarding   same   sex                                                            
perpetrators  who assault  young boys reflect  a disproportionately                                                             
high rate  of recidivism.  Judges should  pay specific attention  to                                                            
such data.                                                                                                                      
                                                                                                                                
Senator Dyson observed  that people are inclined to view crimes that                                                            
combine "violence and force  as being worse." However, the fact that                                                            
many child victims  were seduced rather than beaten  into submission                                                            
has instilled  "a lifetime sentence of shame" in them,  as they feel                                                            
that they were partly to blame.                                                                                                 
                                                                                                                                
Senator Dyson stated that  the concern that someone might not report                                                            
an assault  out of fear that it "would  ruin the life of  someone is                                                            
off-target." He  supported the decision that "a child  under the age                                                            
of 15 is  incapable of  making the really  very important  decisions                                                            
about sexual activity."  Those that prey on them should "be busted."                                                            
                                                                                                                                
10:48:40 AM                                                                                                                   
                                                                                                                                
Senator Dyson  understood that  85 to 90 percent  of young  women in                                                            
middle school and above  have reported being "the victim of unwanted                                                            
touching".  While  the  sentencing  for  unwanted  touching  through                                                            
clothing might be disproportionate  when compared to cases involving                                                            
manslaughter,  it should be recognized  that there is a huge  amount                                                            
of victimization. "People  have a right to their own boundaries" and                                                            
should  not  be  assaulted   "even  in  those  ways."   While  these                                                            
provisions  might  require  modification,  unwanted touching  is  an                                                            
assault on people's privacy and their boundaries.                                                                               
                                                                                                                                
Co-Chair Green ordered the bill HELD in Committee.                                                                              
                                                                                                                                

Document Name Date/Time Subjects