Legislature(2005 - 2006)SENATE FINANCE 532

02/09/2006 09:00 AM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Moved CSSB 218(FIN) Out of Committee
Scheduled But Not Heard
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
10:08:20 AM                                                                                                                   
     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 second  hearing for  this bill in  the Senate  Finance                                                            
Senator Bunde,  sponsor of  the bill, relayed  a media report  of an                                                            
Internet sting  operation in the state  of California in  which over                                                            
60 perpetrators  were arrested  after attempting  to meet in  person                                                            
someone  who they  thought  to be  a 13 year-old  boy  or girl.  The                                                            
majority of  those arrested were found  to be repeat sexual  assault                                                            
offenders. Advances in  technology have facilitated the perpetration                                                            
of these crimes  and the timing of  this legislation is critical  to                                                            
address the situation.                                                                                                          
Senator  Bunde  utilized the  California  example  as  proof of  the                                                            
willingness   of  sexual  assault   offenders  to  re-offend.   This                                                            
challenges  the  argument that  the  offenders  are "misunderstood"                                                             
individuals who must be given special consideration.                                                                            
Senator  Bunde moved for  adoption of  CS SB 218,  24-LS1307\P  as a                                                            
working document.                                                                                                               
Co-Chair Green objected for an explanation.                                                                                     
10:11:36 AM                                                                                                                   
Senator  Bunde cited  language  on page 3,  lines 3  through 6  that                                                            
would  allow  for attorney  client  privilege  as  a defense  if  an                                                            
attorney  had  knowledge  that  his  or her  client  has  failed  to                                                            
register as a sex offender.                                                                                                     
10:12:13 AM                                                                                                                   
Senator Bunde  noted language inserted  on page 7, line 30  and page                                                            
8,  lines 10  and  11 would  provide  that  all sex  offenders  must                                                            
register.  He told about  a constituent  investigating the  registry                                                            
and discovering  that over 200 registered  sex offenders  resided in                                                            
the same area as the constituent.                                                                                               
10:13:28 AM                                                                                                                   
Senator Bunde  then directed attention to language  inserted to page                                                            
10  lines 14  and  15 that  would  extend  the  provision  requiring                                                            
polygraph examinations  of sex offenders  on probation or  parole to                                                            
include "offenses committed  before, on, or after the effective date                                                            
of this Act."                                                                                                                   
10:13:58 AM                                                                                                                   
Co-Chair  Green  withdrew  her  objection  to the  adoption  of  the                                                            
committee substitute.                                                                                                           
Without further objection,  CS SB 218, 24-LS1307\P, was ADOPTED as a                                                            
working document.                                                                                                               
10:14:29 AM                                                                                                                   
JAMES  HELGOE,  Lieutenant,  Alaska State  Troopers,  Department  of                                                            
Public Safety, testified  via teleconference from an offnet location                                                            
that he was available to respond to questions.                                                                                  
10:15:19 AM                                                                                                                   
GALEN PAINE,  Defense Attorney,  testified  via teleconference  from                                                            
Sitka, to urge  the Committee to not rely on anecdotal  evidence but                                                            
rather to consider the  effect of increased penalties and understand                                                            
the  core of  the issue,  which  is the  crimes of  sexual  offense.                                                            
Efforts  on  preventing   these  crimes  should  be  increased   and                                                            
punishment alone should not be relied upon to address the issue.                                                                
Ms. Paine pointed  to historical data,  noting that ten to  15 years                                                            
ago, sentences  for  these offenses  were considerably  lighter  and                                                            
have been increasing  steadily since. However, the  number of sexual                                                            
assault  offenses   has  increased   as  well.  She  suggested   the                                                            
legislature allow time  for the latest sentencing increases to be in                                                            
effect before making additional statutory changes.                                                                              
Ms. Paine informed  that the number  of incarcerated Alaska  Natives                                                            
would also increase.  More people in total would be  incarcerated at                                                            
a significant  expense  to the  State.  Some of  those funds  should                                                            
instead  be utilized  for  prevention  and alcohol  abuse  treatment                                                            
Ms.  Paine examined  the  people  this legislation  is  intended  to                                                            
address:  sexual  predators. However,  other  people  are guilty  of                                                            
sexual offenses and this bill would "rush them to jail".                                                                        
Ms. Paine told  of a 19-year-old high  school freshman student  in a                                                            
small village near Bethel  who had dated a 15-year-old girl with the                                                            
full knowledge  of both  sets of  parents. The  man, whom Ms.  Paine                                                            
represented,   was  of  limited  intelligence   and  the   girl  was                                                            
intellectually  more mature than he.  The relationship was  reported                                                            
to authorities, the man  was convicted and he faced a ten to 15-year                                                            
jail sentence.  The  sentence was  never meted out  because the  man                                                            
committed  suicide before  the sentencing hearing  was held.  He had                                                            
not known  he was doing anything  wrong. Out  of shame that  he felt                                                            
for  himself  and  thought  he  had  inflicted  on  his  family  and                                                            
girlfriend, he ended his life.                                                                                                  
10:20:49 AM                                                                                                                   
Senator Dyson  indicated he  likely had less  experience in  dealing                                                            
with sexual  abuse situations,  although he  had more than  he would                                                            
prefer.  He agreed that  all child  molesters are  not the same  and                                                            
understood  the witness to assert  that all offenders should  not be                                                            
considered in  a "blanket way". He asked if the witness  had data to                                                            
suggest that a  certain subset of child molesters  are not likely to                                                            
10:21:40 AM                                                                                                                   
Ms.  Paine  did not  know  of any  particular  study.  Although  she                                                            
cautioned against  anecdotal evidence, her experience  has been that                                                            
most  high school  students  who  are convicted  because  of  sexual                                                            
conduct with a girl they  are dating who is three years younger than                                                            
they,  are likely  to never  re-offend.  In addition  some  alcohol-                                                            
related offenses are not likely to be repeated.                                                                                 
10:22:43 AM                                                                                                                   
Senator  Dyson  clarified   that  because  no  evidence   exists  to                                                            
demonstrate  whether some offenders  would be less likely  to commit                                                            
sexual assault again, this bill should not be adopted into law.                                                                 
10:23:01 AM                                                                                                                   
Ms.  Paine  corrected that  she  herself  did  not have  this  data.                                                            
However, the  Department of Law has  access to evidence showing  the                                                            
probabilities.  She also understood  that a letter was submitted  to                                                            
the Committee  from another source that detailed studies  related to                                                            
recidivism rates of sex offenders.                                                                                              
10:23:21 AM                                                                                                                   
STACY WALKER, Attorney,  testified via teleconference from Anchorage                                                            
and gave her varied background  in the legal profession. She opposed                                                            
the provision  in the bill  that would  establish mandatory  minimum                                                            
sentences for  first time offenders. She emphasized  her concern did                                                            
not pertain to  the sexual predators Senator Bunde  referred to, but                                                            
rather  to the  need for  judicial officers  to  have discretion  in                                                            
cases with differing circumstances.                                                                                             
Ms.  Walker  described  an  instance   in  which  she  was  sexually                                                            
assaulted by a taxi driver  and told about situations when she was a                                                            
teenager with  dates who made sexual advances. Although  she did not                                                            
give  consent  in any  of  these incidences,   they were  not  "life                                                            
defining"  situations  either.  However,  she  learned  to  be  more                                                            
cautious in future encounters.                                                                                                  
Ms.  Walker recalled  that  as a  public  defender,  most cases  she                                                            
handled involved parties  who knew each other and "things got out of                                                            
hand."  She  expressed  concern  with  imposing  mandatory   minimum                                                            
sentences in cases  in which the man misunderstood  the situation or                                                            
the woman did not clarify her lack of consent.                                                                                  
Ms. Walker spoke about  her service in the U.S. Air Force as a Judge                                                            
Advocate General  (JAG). Many cases  of alleged sexual assault  with                                                            
insufficient evidence  and significant probable cause  were taken to                                                            
trial as  a result  of media attention  and public  outcry.  In most                                                            
instances the jury performed  as it should and passed fair judgment;                                                            
however sometimes the jury did not.                                                                                             
Ms. Walker  stressed that the judges  should decide the appropriate                                                             
10:29:37 AM                                                                                                                   
Co-Chair  Green announced  the closure of  public testimony  on this                                                            
10:29:47 AM                                                                                                                   
Senator Bunde  contended that when  a person is arrested  for sexual                                                            
assault it is usually after  a long period of this behavior, as many                                                            
cases go  unreported. Society  has responsibility  to set  standards                                                            
and one  way to change  behavior  is with long  prison sentences.  A                                                            
person would  know to make the status  of a relationship  very clear                                                            
because of the consequences  of misinterpretation. Alcohol treatment                                                            
programs  and  sex   offender  treatment  programs   in  Alaska  are                                                            
ineffective. Personal responsibility must be taken.                                                                             
Senator  Bunde  stated that  juries  usually  do well  in  rendering                                                            
verdicts, although he admitted  that in some cases they do not. Gray                                                            
areas would exist. However,  the number of cases in which the guilty                                                            
party was convicted would justify the risk of such mistakes.                                                                    
10:32:56 AM                                                                                                                   
Senator  Stedman contended  that opposition  to  long sentences  for                                                            
second and third offences  would be a difficult position to justify.                                                            
However,  more  judicial  discretion  should  be allowed  for  cases                                                            
involving  first   offences  of  lesser  charges.   The  results  of                                                            
increased sentences  mandated by other recently enacted  legislation                                                            
should be  monitored before  additional increases  are made.  He was                                                            
"uncomfortable  with this direction" and suggested  that the impacts                                                            
should be considered.                                                                                                           
10:34:28 AM                                                                                                                   
Co-Chair  Green  asked  if Senator  Stedman  intended  to  offer  an                                                            
amendment to address this concern.                                                                                              
10:34:32 AM                                                                                                                   
Senator  Stedman indicated  he would  not object  to reporting  this                                                            
bill from Committee,  although he  would give it no recommendation.                                                             
He supported  changing the minimum  sentencing for a Class  C felony                                                            
of  sexual  assault.   He  was  not  concerned  with   the  proposed                                                            
sentencing requirements  for the greater offenses.  Judges should be                                                            
given flexibility  to address  some of the  issues related  to these                                                            
10:35:24 AM                                                                                                                   
Senator  Hoffman   pointed  out  that   as  a  co-sponsor   of  this                                                            
legislation,  he  deemed sexual  assault  to  be a  serious  matter.                                                            
However, he agreed  with Senator Stedman's argument  that discretion                                                            
should provided in situations involving first time offenders.                                                                   
10:35:46 AM                                                                                                                   
Senator  Dyson did  not share the  prime sponsor's  contention  that                                                            
treatment programs for  sexual offenders are ineffective. He told of                                                            
residents  at  the  Highland  Mountain  correctional   facility  who                                                            
participated  in a treatment  program and  had success. The  program                                                            
was dismantled, wrongly in his opinion.                                                                                         
Senator  Dyson was told  that one  type of  sexual assault  offender                                                            
that likely  could be  rehabilitated  was one who  molested his  own                                                            
children.  This crime  is  "particularly  heinous."  Other types  of                                                            
offenders  would be  more likely  to re-offend  and  not respond  to                                                            
Senator Dyson expressed  his intent to vote for passage of this bill                                                            
from Committee and to prepare  an amendment to be offered before the                                                            
full Senate to address first time offenses.                                                                                     
10:37:43 AM                                                                                                                   
Co-Chair Green  cited data she had  regarding the treatment  program                                                            
formerly offered  at the Highland facility concluded  that only five                                                            
percent of participants completed the entire program.                                                                           
AT EASE 10:38:05 AM                                                                                                           
10:38:19 AM                                                                                                                   
Amendment #1:  This amendment deletes  "three" and inserts  "one" to                                                            
subparagraph (A) of AS  12.55.125(i)(4) amended in Section 4 on page                                                            
5, line 27. The amended language reads as follows.                                                                              
                     (A) if the offense is a first felony                                                                       
          conviction, one to 12 [ONE TO TWO] years;                                                                           
     New Text Underlined [DELETED TEXT BRACKETED]                                                                             
Senator Stedman  offered a motion  to adopt the amendment  to reduce                                                            
the mandatory  minimum sentence  for first  time offenses of  sexual                                                            
assault in the third degree,  incest, indecent exposure in the first                                                            
degree, possession of child  pornography, or attempt, conspiracy, or                                                            
solicitation to  commit sexual assault in the second  degree, sexual                                                            
abuse of a  minor in the second degree,  unlawful exploitation  of a                                                            
minor, or distribution of child pornography.                                                                                    
10:38:56 AM                                                                                                                   
Co-Chair Green objected for discussion purposes.                                                                                
10:39:10 AM                                                                                                                   
Senator  Bunde  remarked  that  as  an  individual,  he  should  pay                                                            
attention to his  actions and the consequences of  those actions. If                                                            
he were to  violate the law, he would  know he was required  to "pay                                                            
the price".                                                                                                                     
Senator  Bunde acknowledged  the challenge  in establishing  minimum                                                            
sentencing. The  length of the sentences is a judgment  call for the                                                            
legislature  to  make. Regardless  of  the  length of  the  mandated                                                            
sentences,  the danger  would exist  that some  offenders should  be                                                            
incarcerated longer than  provided and that other offenders would be                                                            
incarcerated who  should not be. Given the risks,  he chose to error                                                            
on the side of being more restrictive.                                                                                          
10:41:45 AM                                                                                                                   
PORTIA  PARKER,  Deputy  Commissioner,  Department  of Corrections,                                                             
testified that the Department  has no position on the amendment. She                                                            
noted that more sexual  assaults are being reported than in previous                                                            
10:45:02 AM                                                                                                                   
SUSAN PARKS, Deputy Attorney  General, Criminal Division, Department                                                            
of Law, testified that  the amendment requires a policy call for the                                                            
legislature. The  Department has supported a wider  sentencing range                                                            
of minimum sentencing  to account for different circumstances.  This                                                            
could result in  disparate sentencing because judges  have differing                                                            
opinions  on right and  wrong. She suggested  extending the  maximum                                                            
sentence,  currently in statute  as two years  and not changing  the                                                            
current minimum sentence of one year.                                                                                           
10:46:51 AM                                                                                                                   
Senator Hoffman pointed  out that the sentencing ranges for the more                                                            
serious offenses  would be  greater than for  the lesser crimes  and                                                            
therefore  this  amendment  would not  be  in contradiction  to  the                                                            
intent  of the bill.  He spoke  to Senator  Bunde's comment,  noting                                                            
that potential  offenders  would still  risk the  possibility  of 12                                                            
years in prison.                                                                                                                
10:48:31 AM                                                                                                                   
Senator   Bunde  suggested   prosecutorial   discretion   would   be                                                            
available.  In many instances, prosecutors  might chose to  not file                                                            
charges. He would not object  to the adoption of the amendment if it                                                            
would provide assurances and acceptance of the entire bill.                                                                     
10:49:17 AM                                                                                                                   
Senator  Dyson stated  he would support  a minimum  sentence  of two                                                            
years, but could not support a one-year minimum.                                                                                
Senator  Dyson  agreed  with  Co-Chair  Green's  assessment  of  the                                                            
treatment  program at the  Highland facility.  However, the  success                                                            
rate for those participants  who completed the program was good. The                                                            
program was rigorous and many dropped out before completion.                                                                    
10:49:54 AM                                                                                                                   
Co-Chair  Green  withdrew  her  objection  to the  adoption  of  the                                                            
10:50:08 AM                                                                                                                   
Senator Dyson objected.                                                                                                         
10:50:11 AM                                                                                                                   
A roll call was taken on the motion.                                                                                            
IN FAVOR: Senator  Stedman, Senator Bunde, Senator  Hoffman, Senator                                                            
Olson, Co-Chair Wilken and Co-Chair Green                                                                                       
OPPOSED: Senator Dyson                                                                                                          
The motion PASSED (6-1)                                                                                                         
The amendment was ADOPTED.                                                                                                      
10:50:44 AM                                                                                                                   
Senator Bunde offered a  motion to report CS SB 218, 24-LS1307\P, as                                                            
amended from Committee  with individual recommendations  and new and                                                            
accompanying fiscal notes.                                                                                                      
There was  no objection  and CS  SB 218 (FIN)  MOVED from  Committee                                                            
with  zero fiscal  note #1  from the  Department  of Public  Safety,                                                            
indeterminate  fiscal   note  #4  from  the  Department  of  Law,  a                                                            
indeterminate  fiscal  note  dated  1/26/06 from  the  Alaska  Court                                                            
System,  an  indeterminate   fiscal  note  dated  1/28/06  from  the                                                            
Department of Administration,  a zero fiscal note dated 1/26/06 from                                                            
the  Department of  Corrections,  Institutional  Facilities  Results                                                            
Delivery  Unit (RDU),  a zero  fiscal note  dated  1/30/06 from  the                                                            
Department  of Corrections,  Probation  and Parole  RDU, and a  zero                                                            
fiscal  note  dated 2/01/06  from  the  Department  of Corrections,                                                             
Administrative Services and Support RDU.                                                                                        
AT EASE 10:50:59 AM                                                                                                           

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