Legislature(2007 - 2008)BELTZ 211
03/17/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB293 | |
| SB234 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 234 | TELECONFERENCED | |
| + | SB 293 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 234-CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
2:22:13 PM
CHAIR FRENCH announced the consideration of SB 234. He asked for
a motion to adopt the draft committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt CS for Senate Bill 234,
labeled 25-GS2038\C, as the working documents.
2:22:53 PM
CHAIR FRENCH objected for discussion purposes. He informed
members that his intention is to work on the bill today and
Wednesday and hopefully move it from committee that day.
At ease from 2:24:04 PM to 2:27:59 PM.
CHAIR FRENCH said the idea for Sections 1 and 2, which was
discussed in the crime summit, is to require electronic
reporting of pawn shop transactions in communities that have
more than 5,000 people. Transactions from garage sales, used
book stores, and the Salvation Army wouldn't be reportable, but
transactions from places that loan money on secondhand articles
would be reported to law enforcement in an electronic and
searchable format. This will make items that frequently end up
in pawn shops as a result of burglaries and robberies more
locatable.
CHAIR FRENCH, noting that Anchorage pawn shops already report
electronically, asked Sergeant Pickerel to explain how this
works and what benefit it provides.
2:29:09 PM
DOUG PICKEREL, Sergeant, Anchorage Police Department, relayed
that there are about 3,500 pawn transactions per week in
Anchorage. Many of those transactions include items that have
been reported stolen and because of the reporting requirement,
many of the items are recovered. Electronic reporting has made
it easier for the police department since it's no longer
necessary to visit each pawn shop to pick up the transaction
lists.
CHAIR FRENCH asked what sort of push-back there's been from the
pawn shops.
SERGEANT PICKEREL replied all but one of the pawn shops report
electronically. He believes it's easier for shop owners as well
as the police.
2:30:44 PM
CHAIR FRENCH asked how many of the 3,500 items per week have
been stolen.
SERGEANT PICKEREL estimated 5 percent, maybe as high as 10
percent.
CHAIR FRENCH said if it's 5 percent that means that 175 items
per week could be returned to the rightful owner because of this
simple recordkeeping requirement.
SERGEANT PICKEREL reevaluated and said it's not that many, but a
good number of items are recovered. It does provide leads in an
investigation and aids in prosecutions. This has been a big help
to the Anchorage Police Department and he's sure other
jurisdictions will find it helpful as well.
SENATOR WIELECHOWSKI referred to page 1, Section 1, and asked
for a definition of "A person who lends money on second hand
articles…."
2:32:28 PM
JERRY LUCKHAUPT, Legislative Counsel, Legislative Legal and
Research Services Division, Legislative Affairs Agency,
explained that it's not defined. Provisions in Title 8 don't
regulate pawn shops per se, but they talk about loaning money on
items and the record keeping that must occur. "We refer to pawn
shops but we always talk about whether or not it's a person that
engages in the business of buying and selling second articles or
lending money on second hand articles."
2:34:17 PM
SENATOR WIELECHOWSKI reviewed AS 08.76.010(a), which isn't in
the committee substitute (CS), and said he was concerned about
inadvertently extending the reporting requirement to anyone who
might lend $10 to another person.
MR. LUCKHAUPT said he doesn't see that the intent is to have
this apply to persons who loan money to friends. He believes the
section is referring to someone who is receiving an item in
exchange for money and holding that item until the money is
repaid.
CHAIR FRENCH asked if used book or clothing transactions would
fall under this section.
MR. LUCKHAUPT replied he doesn't believe so because money isn't
loaned on those items in exchange for holding them for
redemption. Similarly, transactions from a consignment shop
wouldn't fall under this section. He doesn't know that current
statute has ever been applied to those items. AS 08.76.040 was
added in 1981 and it does use the term "pawnbroker" but the term
isn't defined and it only relates to what happens when someone
doesn't redeem their pawned item.
2:37:27 PM
CHAIR FRENCH directed attention to the language on page 2, line
3, and said the phrase "accessible on the Internet" will be
changed to reflect that the information will be "electronically
available." The idea is to have the transaction lists emailed to
law enforcement rather than to have a database of pawned items
that the public can search. This will comport with the
suggestion made by Wasilla Police Chief Long.
2:38:20 PM
SENATOR McGUIRE remarked this is long past due and she's pleased
this will be included.
2:39:16 PM
QUINLAN STEINER, Director, Alaska Public Defender Agency, said
his biggest concern relates to the involuntary commitment
proceedings. Preferable language was discussed in the House, but
it's not reflected in version C. He offered to provide that
language.
CHAIR FRENCH urged him to submit any suggestions to his office
as soon as possible because he'd like to move the bill on
Wednesday.
MR. STEINER said the commitment proceedings have been discussed
at length with DOL and the issues have been fairly well hammered
out. He summarized that Sections 9, 10, and 11 relate to
involuntary commitment when a criminal defendant is found
incompetent. The concern was that there was no outlet for cases
that didn't really require commitment for an evaluation.
Criminal trespass cases, for example, are relatively minor and
the person may have been found incompetent numerous times. This
provision could lead to almost a year commitment. Typically when
a person's conduct isn't threatening or dangerous they would
only receive 10 days. Language was drafted to require a
coinciding finding of dangerousness, which would take care of
the concern about more dramatic cases such as arson, he said.
MR. STEINER said there was also debate about Section 11, which
is a rebuttable presumption of mental illness of someone who is
found incompetent. That is somewhat inconsistent with a possible
basis for incompetency, which could be a disability rather than
mental illness. There was no agreement on that issue, but it's
worth review because someone could be found incompetent without
being mentally ill. For example it could be due to mental
retardation, developmental disability, or autism.
2:43:41 PM
CHAIR FRENCH asked his view on Section 8.
MR. STEINER said he believes that the reason that was written in
was to ensure that all warrants are not called in. He asked the
committee to consider that even in a state the size of Alaska,
sometimes a judge should look at things.
CHAIR FRENCH asked if he had other comments.
MR. STEINER highlighted Section 3, which makes the third
domestic violence assault a felony offense. The House changed
this section substantially based on the concern that the two
misdemeanor predicate crimes could be non-assaultive as could
the C felony offense. That body established that all the
offenses had to be physical assaults and he believes a 10-year
look back was included. He suggested the committee consider the
broad definition of household member with respect to domestic
violence and getting a restraining order. Under current statutes
household members could include college roommates, people living
on a fishing boat, or cannery workers.
2:47:35 PM
CHAIR FRENCH questioned whether a cannery worker who lives down
the hall really would be considered a domestic partner.
MR. STEINER replied not with the common understanding of
domestic partner, but there would be a legitimate argument for
people sharing a house or rooms in a boarding house. He doesn't
think that's the intent with regard to domestic violence but it
does make sense in a protective order situation. There you're
trying to maximize protection under a short timeframe. In the
criminal environment where there's more time to examine
culpability then the broad definition makes less sense. An
interesting part of the definition of household member is
dating. He doesn't have a good definition for that but it could
mean widely different things depending on location and
perception of the people who are dating. One person may call it
a date while another may not. It's totally undefined but it's
worth considering when looking at using that for the purpose of
criminal culpability.
2:49:53 PM
RON ADLER, CEO and Director, Alaska Psychiatric Institute (API),
said he too is concerned with the references to incompetency due
to mental illness. He explained that someone could be
incompetent to stand trial because their maladaptive behavior is
a result of a developmental disability. But someone who is
mentally ill could commit a crime and not be able to understand
the charges because they're responding to internal stimuli.
2:51:24 PM
CHAIR FRENCH asked if his concern centers on the new Section 11
that talks about a defendant who is rebuttably presumed to be
mentally ill.
MR. STEINER said that's correct.
CHAIR FRENCH questioned why a rebuttable presumption isn't the
way to go. If the DA goes into court and says someone is
mentally ill and has been found to be incompetent, a doctor
could stand up and rebut the statement and end the dispute.
MR. STEINER asked where the defendant would be during the
rebuttal. If he or she is already at API, there will be a
capacity issue at the hospital with respect to bed space. API
only has a 10-bed medium security forensic unit and all 10 beds
are currently occupied.
CHAIR FRENCH asked what happens now if a district court judge
finds someone to be incompetent to proceed and thus rebuttably
presumed to be mentally ill.
MR. STEINER explained that the hospital would notify the
licensing and certification agency about the extra person.
Probably the seclusion and restraint room would be used to house
the extra person. "It would create serious problems if we go
over 11." In that event the fire marshal would also have to be
notified, he said.
2:54:58 PM
CHAIR FRENCH asked how many times API has exceeded capacity in
the last two years.
MR. STEINER estimated it's happened three times. His concern is
that this bill could increase the number of referrals to the 10-
bed medium security forensic unit.
CHAIR FRENCH asked if API tracks the number of defendants in the
criminal system found to be incompetent to proceed. Data from
the last several years would be useful information for the
committee to have, he said.
MR. STEINER agreed to get the numbers to the committee before
the next hearing.
2:55:44 PM
JOSHUA FINK, Director, Office of Public Advocacy (OPA),
Department of Administration, echoed the comments by Mr. Steiner
and Mr. Adler. He suggested the committee look at the definition
of "household" because the application is far too broad. For
example, two MatSu Valley cellmates recently got into a scuffle
and initially they were going to be charged with domestic
violence. This caused a situation because one of the definitions
is "live with or ever lived with" so that includes cellmates,
people in assisted living homes, and college roommates. This is
a real issue. He agrees that when the definition was written in
Title 18 it was to give the court broad discretion in fashioning
a restraining order. It wasn't intended to define a domestic
relationship for criminal liability purposes.
MR. FINK relayed that the House version of this legislation sets
up a new section that defines domestic violence relationships
and limits it to the present tense. The idea is to get to the
familial and romantic relationships versus the broad definitions
in Title 18.
2:57:34 PM
CHAIR FRENCH asked if he's comfortable with the three strikes
language contained in the bill by Representative Holmes.
MR. FINK replied that bill has good language: the predicate
crimes are assaultive in nature, there's a 10-year look back,
and the definition of household is narrowed. "It's a tight bill
and it gets at the public policy she wants implemented," he
said.
CHAIR FRENCH told the committee that it's been his intention
that the current Section 3 is a placeholder for the language
Representative Holmes has developed. She's worked on it
extensively so that everyone is more or less happy. He expects
to have that language by Wednesday.
CHAIR FRENCH directed attention to Section 4, which addresses
detaining people who leave a commercial establishment with large
amounts of merchandise in plain view. Previously merchandise had
to be concealed for a store security guard to have authority to
detain a person until the police arrive. This broadens that
definition to allow theft to serve as a predicate.
SENATOR WIELECHOWSKI asked about the suggestion to add Lunestra
[zopiclone] to the list of controlled substances in Section 6.
2:59:55 PM
ANNE CARPENETI, Assistant District Attorney, Criminal Division,
Department of Law (DOL), said Lunestra is on the federal
schedules said DOL doesn't object to adding it here.
CHAIR FRENCH agreed that it's a good idea to include it in the
bill.
3:00:37 PM
MS. CARPENETI emphasized that Section 3 is very important to the
Department of Law. She urged the committee to consider that the
governor's bill didn't have an enhanced penalty for domestic
violence offenses. It's not the most popular approach but it's
more practical and it makes more sense for prosecutors to just
provide that the third conviction of assault in the fourth
degree be a class C felony if the person has been convicted of
assaultive behavior within the last 10 years. She explained that
there are different ways to consider what the predicate offenses
are, but in Alaska law there isn't a crime involving domestic
violence. It's not an element of any offenses so with each case
it'd have to be proved to a jury beyond a reasonable doubt that
the crime involved domestic violence. She believes that Mr.
Steiner and Mr. Fink will say that the governor's approach is
much cleaner and more preferable. Leaving that element out will
still capture all the people you're trying to capture. In fact
there's a good reason to apply this enhanced penalty to bullies
on the street who beat up non family members. She urged the
committee to consider Mr. Luckhaupt's draft that made another
way to commit assault in the third degree by having committed
non fear assaults in the first and second degree with various
predicates.
3:03:25 PM
SENATOR WIELECHOWSKI expressed the view that it's cleaner and
more practical to do what Ms. Carpeneti suggests. People who
have assaulted others three times shouldn't be on the street.
MS. CARPENETI reminded the committee that some people have
convictions for 10 and 12 assaults in the fourth degree. They're
not all domestic violence, she added.
SENATOR McGUIRE echoed a similar sentiment. Someone who is
exhibiting fourth degree assaultive behavior on a consistent
basis is ratcheting up and it's time to say that behavior is a
felony. "I'm supportive of just keeping it general," she said.
3:04:47 PM
CHAIR FRENCH asked her view on the sections about mentally ill
and incompetency.
MS. CARPENETI observed that Mr. Steiner wasn't looking at the
latest version of the bill. He and Mr. Fink worked with DOL on
the provisions in version C, she said.
CHAIR FRENCH agreed, adding that he knows that his staff sent
out the latest version. "We went out of our way to make certain
that before the hearing he had the language. We'll try it again
for Wednesday." He said his sense was that there had been
conversations.
MS. CARPENETI agreed that they've spent hours together working
on this language. "It would be interesting for you to get Mr.
Fink's and Mr. Steiner's testimony because they've both
represented to me that they liked the governor's version. It's a
whole lot cleaner …."
3:05:54 PM
SENATOR WIELECHOWSKI asked if she's considered extending this to
other types of recidivist offenders. It would aim at those
people who have 30, 40 and 50 offences. They're a menace to
society and clearly they aren't correcting their behavior. At
some point these people have to be sent to sit in a cell to
think about their actions. He asked if she would support an
amendment to that effect.
MS. CARPENETI replied she'd always be willing to consider it,
but she knows that the price tag would be considerable. "This is
a really good start in terms of people who beat up on other
people, whether they be a domestic partner or a total stranger,"
she said.
3:07:41 PM
CHAIR FRENCH highlighted the fiscal note shows the cost of these
provisions in 2012 to be $9 million per year and nearly $17
million per year in 2014.
MS. CARPENETI stated a preference for taking it one step at a
time.
CHAIR FRENCH directed attention to Section 17, page 6, that
relates to returning a search warrant. Although Mr. Svobodny
made a fairly good case for relaxing the current 10-day rule, he
said he'd prefer putting an upper-end limit on the number of
days you'd have to wait for a search warrant to be returned. He
asked her view on extending the limit to 30 days.
MS. CARPENETI said 30 days is reasonable as long as there's a
statement about the possibility of going to the court and asking
for an extension. That's what happens now and judges are
generally good about cooperating, she said. She talked to Mr.
Svobodny earlier and he indicated that 30 days with some
extension provision would be acceptable.
CHAIR FRENCH reread the current provision and agreed that just
two 10-day extensions are allowed. He said he wants to give the
court guidance with regard to number of days. "We'll work on
keeping some reasonable lid on that and we'll also give the
public defender a chance to respond," he said.
CHAIR FRENCH held SB 234 in committee.
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