Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/04/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB22 | |
| SJR6 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 22 | TELECONFERENCED | |
| *+ | SJR 6 | TELECONFERENCED | |
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
CHAIR COGHILL announced the consideration of SB 22.
1:35:16 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, reminded the committee that she finished the
sectional analysis during the previous hearing. She noted the
discussion with Senator Wielechowski about Section 42 to amend
Rule 404(b)(2)(i), Alaska Rules of Evidence. Sections 43 and 44
amend Rule 216(a) and (b) to reflect the change in the procedure
for a witness requesting Fifth Amendment protection and the
court determining whether or not to grant that immunity.
CHAIR COGHILL said he noticed a proposal for an amendment
regarding a domestic violence issue and wearing a monitoring
device under protective custody.
MS. CARPENETI said that amendment, which was prepared by her
office, would move the matter out of the civil protective order
arena and make it a condition of bail, in the discretion of the
court, for cases involving crimes involving domestic violence
and stalking.
CHAIR COGHILL asked if she had reviewed the language on page 2,
lines 24-25 and page 3, lines 1-2 for redundancy.
MS. CARPENETI responded that the difference between the two
sentences is that one addresses the defendant and the other
addresses the court.
1:38:06 PM
SENATOR OLSON joined the committee.
CHAIR COGHILL referenced Section 9 and asked if she wanted to
modify the language in paragraph (8) on page 6, lines 29-31.
MS. CARPENETI suggested removing the language after "class B
felony" on page 6, line 30 because it was redundant.
SENATOR DYSON asked for help [understanding the difference]
between the language at the bottom of page 2 and top of page 3.
MS. CARPENETI explained that the language [on page 2, lines 23-
25] says that the legislature in 2013 believes that the
legislature in 2006 did not intend, nor does it now, to create
an additional means for a defendant convicted of sexual felony
to obtain referral to a three-judge panel. The language that
begins on page 3, line 1, is similar, but it talks about a court
not creating additional means for a defendant convicted of a
sexual felony and sentenced under AS 12.55.125(i) to obtain
referral to a three-judge panel.
CHAIR COGHILL asked what the standard would be for unusual or
extreme circumstances if the majority decision in Collins were
reversed.
MS. CARPENETI said the intent of the proposed language is to
return to the court's interpretation of the jurisdiction of a
three-judge panel before the decision in the Collins case. In
that decision, the sentencing court applied standards for
referring sex offenders to a three-judge sentencing panel
according to the same standards as the sentencing for every
other defendant. That standard is if manifest injustice would
result from the application of sentencing within the range that
the legislature has set, then sentencing would be transferred to
a three-judge panel
CHAIR COGHILL asked if a person seeking transfer to a three-
judge panel would have to show a manifest injustice.
MS. CARPENETI explained that there were two ways to get to a
three-judge panel. One is if the application of the aggravating
and mitigating factors already in statute would lead to a
sentencing result that is manifestly unjust according to the
sentencing court. The other way is if the sentencing court
believes there is a non-statutory mitigating factor to consider,
and without that consideration the sentence would be manifestly
unjust.
CHAIR COGHILL offered his understanding that in the Collins case
the appeals court thought the case should go to a three-judge
panel because it was a single offense and the prospects for
rehabilitation were good. There was no mitigater.
MS. CARPENETI agreed that in the Collins case there wasn't a
non-statutory mitigater that would apply. She explained that the
sentencing court judge determined he would not send the case to
a three-judge panel, because manifest justice did not result
from application of a sentence within the range. The judge
sentenced the defendant to 25 years with five years suspended so
he would serve the lowest possible term of 20 years.
The majority decision of the Court of Appeals was that the
legislative intent in 2006 was that there should be a mitigating
factor that the defendant has extraordinary prospects for
rehabilitation.
The Collins decision found that for this sex offense, since the
ranges were higher than for other offenses, the legislature must
have intended the court to send a sex felony case to a three-
judge panel if the defendant had prospects for rehabilitation
that were merely good, not extraordinary. Extraordinary
potential for rehabilitation is one of the two non-statutory
mitigating factors that the courts have recognized in the past.
1:44:23 PM
CHAIR COGHILL asked for assurance that including this language
would not preclude somebody from having a mitigating factor;
it's just that the bar would be very high.
MS. CARPENETI responded that the bar should be the same; a non-
statutory mitigater of extraordinary potential for
rehabilitation should be applied in the same manner for a sex
felon as it is for any other felon.
1:45:49 PM
At ease
1:46:12 PM
CHAIR COGHILL reconvened the meeting and opened public
testimony. He noted that Major Matt Leveque, Kathy Monfreda,
Billy Houser, and Kaci Schroeder were available to answer
questions.
PEGGY BROWN, Executive Director of the Alaska Network on
Domestic Violence and Sexual Assault ("Network"), noted that she
submitted written testimony. She thanked the executive branch
and legislature for addressing the issues of domestic violence
and sexual assault and the efforts to protect victim safety. She
said the Network approves many of the provisions in the bill,
but not GPS monitoring as a possible condition of bail or a
possible condition in a civil protective order. The preference
would be for post-conviction GPS monitoring. She informed the
committee that all of the reports she'd read agree that GPS
should never be ordered absent victim consent, yet for a variety
of reasons few victims are present during a bail hearing.
MS. BROWN expressed concern that the Department of Public Safety
was designated the lead agency for the electronic monitoring
program, and highlighted that most states recommend the
Department of Corrections as the lead agency. This would
probably improve response times for domestic violence calls and
enhance Section 40 of the bill.
MS. BROWN again extended her thanks to the legislature and
administration and expressed confidence that everyone has the
best intentions in trying to work on victim safety and
accountability of respondents.
1:54:06 PM
SENATOR DYSON asked if in her letter she really meant to say
that GPS monitoring eliminates the safety zones. He referenced
the following paragraph of her letter:
For GPS monitoring to work, victims must disclose
these safety zones so that they can be set as zones of
exclusion from which the abuser is not allowed to
enter. These locations must be disclosed to the abuser
in order for him to comply with this civil court
order. This not only eliminates safety zones for
victims but puts victims, their children and family
and friends who are providing safe haven at risk.
MS. BROWN agreed it could have been said more artfully, and
noted that the letter was addressed when GPS was in civil
matters and it appears as though that has been alleviated.
SENATOR DYSON asked what she would say if it was a criminal
case.
MS. BROWN said the discussion would be how to maintain victim
safety while holding the offender accountable, but the Network
is supportive if the legislature or the administration wants to
try GPS monitoring.
SENATOR DYSON offered his belief that the Department of
Corrections currently is responsible for electronic monitoring.
MS. BROWN agreed.
1:57:30 PM
SENATOR WIELECHOWSKI offered his belief that giving judges the
discretion to order electronic monitoring could provide some
benefit and protection. He asked if she was saying judges should
not have that ability.
MS. BROWN said no. The point is that there are two times when a
victim is in serious danger. One is when she is trying to leave
the abuser, and that generally starts with a civil protective
order. The second time is when she is pregnant. Research from
other states has shown that GPS monitoring is not for civil
matters, because the civil protective order time is critically
dangerous for the victim. The risk is too high. It's also
dangerous post-conviction, but it may be less so.
SENATOR WIELECHOWSKI said he couldn't imagine that a judge would
order electronic monitoring if a woman went to court and voiced
opposition. He added that it just seems that it's another tool
that judges could use.
MS. BROWN responded that the evidence from other states
indicates that electronic monitoring early in the process is not
successful. The street knowledge is that a person who is served
with a protective order often reacts very negatively when
ordered to wear an electronic monitoring device. "In this state,
we don't want victims not to report because of something that we
tried to do to help them," she warned.
CHAIR COGHILL summarized that electronic monitoring escalates
the potential for a violent reaction under a civil order, but it
has already escalated when there is a criminal prosecution. He
said he also heard that establishing exclusion zones gives a
little information about the location of the victim and that
could be even more dangerous for the victim.
SENATOR DYSON asked if it was a criminal matter to violate a
restraining order.
MS. BROWN replied it could be.
SENATOR DYSON asked if there were alternatives.
MS. BROWN expressed support for a pilot project to see how GPS
monitoring might work in the state.
SENATOR DYSON asked if in domestic violence cases a third-party
custodian is ever required pretrial or presentencing.
MS. BROWN replied some states have addressed that.
SENATOR DYSON asked if it works.
MS. BROWN replied she would have to check.
CHAIR COGHILL asked Ms. Brown if she had closing comments.
MS. BROWN thanked the committee for its due diligence on the GPS
provision and expressed appreciation for many of the other
provisions. She specifically mentioned eliminating the civil and
criminal statute of limitations for sex trafficking, closing the
gap in the unlawful contact statute, prohibiting probation and
parole officers from engaging in sexual activity with someone on
probation or parole, expanding the authority of the Violent
Crimes Compensation Board to include claims for compensation
from victims of sex trafficking, and expanding the rape shield
law.
CHAIR COGHILL said she was welcome to give additional testimony
based on what she heard.
2:09:34 PM
JEFFREY MITTMAN, Executive Director, ACLU of Alaska, Anchorage,
AK, said the ACLU has concern about several provisions in the
bill and would submit written testimony with detailed case cites
and analyses. He specifically mentioned three examples to
illustrate areas of concern. First, the provision (Sections 2
and 9) to eliminate the statute of limitations for bringing a
civil suit for victims of felony sex trafficking and felony
human trafficking has constitutional and civil rights
implications for age majority victims. Second, the ACLU
continues to have concerns with expanding the ability of the
attorney general's office to issue administrative subpoenas.
(Sections 32-35) This diminishes the court's ability to control
warrants, increases executive department authority, and chips
away at constitutional protections against unreasonable search
and seizures. Third, the ACLU has continuing concerns with
regard to the sex trafficking law generally, and is hoping to
work on language changes with Senator Coghill's office.
MR. MITTMAN expressed support for the provisions (Sections 3-6)
that recognize that probation officers and other employees can
be liable for sex assault. In conclusion, he reiterated his
preference to submit written testimony and meet with staff to
raise specific concerns rather than trying to cover everything
in the allotted time today.
CHAIR COGHILL said he looked forward to hearing his more pointed
comments when he came to town.
2:12:38 PM
QUINLAN STEINER, Director and Public Defender, Public Defender
Agency, Department of Administration, Anchorage, AK, said his
comments would center on the unintended consequences of some of
the language in the bill.
He said Sections 1, 20, and 21 were intended to overrule
Collins, but the specific language could potentially do more and
result in the exclusion of certain typical factors that are
considered when evaluating whether manifest injustice will
result. He pointed out that the language in Section 20 says
certain factors such as youthfulness and no prior record cannot
be considered "singly or in combination," but they often are
considered along with other things. What the Collins decision
did was lower the standard for getting referral in those cases
where rehabilitation is merely ordinary rather than
extraordinary and manifest injustice might result. He opined
that it would be simple to fix if that was not the intent of the
legislature.
CHAIR COGHILL asked the page and line.
MR. STEINER pointed to Section 20, page 10, line 29 through page
11, line 3. He said that could be read to mean that none of the
factors could be used in combination with any other factors to
draw the conclusion that somebody has extraordinary prospects
for rehabilitation, and that sentencing within the presumptive
range would be manifestly unjust. That's not what Collins does;
it requires referral when those factors are present and there is
less than extraordinary prospects for rehabilitation. The
language in SB 22 goes further than overruling Collins, it' more
restrictive. It would be simple enough to overrule Collins
without creating these unintended effects, he said.
CHAIR COGHILL questioned why he believes that "singly or in
combination" creates a higher standard.
MR. STEINER explained that it creates a higher burden than
existed before. It says those factors cannot be considered alone
or in combination with any other factors and that could be read
to mean that someone being a youthful offender could not be
considered with all the other circumstances of the case in
determining whether referral is appropriate, even though you
might want the standard to remain that the person has
extraordinary prospects for rehabilitation and sentencing would
be manifestly unjust. It could potentially be read as isolating
that as something that could never be considered in referral.
That isn't what existed before Collins.
Before Collins, the factor of being a youthful offender could be
considered in the circumstances of the case, but the conclusion
still must be that sentencing within the range must be
manifestly unjust. Collins just makes it easier to get a
referral, it doesn't change that outcome. Read that way it would
be more restrictive than pre-Collins.
CHAIR COGHILL said the committee would consider that.
MR. STEINER added that Collins essentially lowered the bar to
get the referral. The proposed language both raises the bar and
excludes certain factors from consideration. He reiterated that
Collins could be overruled and the bar raised for getting a
referral without creating the possible elimination of the
factors for consideration. He offered to follow up with further
explanation.
2:18:45 PM
CHAIR COGHILL stated that this discussion was not finished.
MR. STEINER expressed concern with the unintended consequences
of Sections 3-6. These provisions would make it a sex felony for
a parole or probation officer to have sexual contact with a
spouse or partner if the spouse or partner was on probation or
parole. The intention probably was to deal with the situation
where a parole or probation officer had influence or used their
position to induce somebody's conduct.
CHAIR COGHILL asked about the wisdom of inserting the exception.
MR. STEINER responded that a problem like that could be
addressed by putting in exceptions or inserting language about
using a position of authority.
He said that Section 7 was unclear that the no contact has to
stem from a court order. It could potentially be read to mean a
comment from a parole officer. He suggested that it would be an
easy drafting fix to ensure that the intention was that the
order flow from a court order.
He highlighted the unintended consequences of the GPS sections
of the bill. If the court were to order GPS monitoring in a
civil case when the person was out of custody, there was no
remedy in the event that the person failed to comply. There was
also a drafting problem with respect to the sexual assault
protective orders. They could be ordered in ex parte situations
and the respondent could potentially be in violation without any
opportunity to respond.
CHAIR COGHILL asked if he was talking about the civil protective
order and the questions it raises under civil monitoring.
MR. STEINER answered yes.
He said Section 13 has two unintended consequences. He explained
that in a defense case it is generally the best practice to seek
pretrial application, but sometimes it's a strategic decision
not to admit the evidence. This provision will encourage holding
those hearings regardless of the trial strategy and may
needlessly increase the number of filings. The second unintended
consequence is that the bar on admissibility is so strict it may
potentially have constitutional issues. He opined that subtle
rewording could take care of that unintended consequence.
CHAIR COGHILL asked if the five-day limit was a logistical
problem, not the principle problem.
MR. STEINER responded that the five days isn't the problem; the
issue is what happens when evidence is made known after that
deadline has lapsed. The compulsory language [on page 8, lines
17-18] would presumably create a bar to admitting evidence that
is legally relevant. It's potentially a constitutional problem
if the court doesn't relax the rule and admit the evidence. He
said that subtle language change could address the problem.
CHAIR COGHILL asked if he had looked at the scope of what could
be subject to forfeit under Section 8, because it appeared to be
fairly broad.
MR. STEINER agreed, because the term "facilitate" could mean a
lot of different things. He noted the example of somebody using
their home or car and said that on the face of the statute those
would clearly be implicated. The phrase "shall be forfeited"
doesn't leave much discretion should the state apply, he said.
CHAIR COGHILL commented that he put a question by that provision
and the new statutory reference made it a much larger question.
MR. STEINER said the language in Section 14 requiring the court
to conduct a direct personal inquiry of a witness deserves some
attention because Alaska has transactional immunity on
testimony. The language in this statute says the privileged
testimony is not admissible for any other purpose after the
witness provides it, but that language may not be sufficient
protection. The reason is that sealed testimony doesn't
necessarily stay sealed and while it might not be admissible for
a purpose, it could get out and be used for another purpose.
This could create transactional immunity by accident. The client
potentially may have a right to speak through his attorney
rather than putting testimony on the record about their criminal
exposure. That may create a constitutional concern.
CHAIR COGHILL asked if the constitutional question centered on
the principle of attorney client privilege or the Fifth
Amendment privilege.
MR. STEINER replied it would be the Fifth Amendment privilege.
CHAIR COGHILL observed that security of information is a big
deal in that section.
MR. STEINER agreed. He added that the current practice is for
the attorney to give a proffer outlining what the witness will
say if ordered to testify. The court can use that proffer and
the circumstances of that situation to determine whether there
is criminal liability exposure.
Sections 16-17 require a defendant to make application 10 days
before a disposition hearing in order to claim credit for time
spent in a treatment program. This is sometimes referred to as
Nygren credit. He said his concern is one of practical
application. This would create more work up front and
potentially slow the process. He said these cases can move very
fast and are sometimes resolved by negotiation and plea at
disposition without any discussion of Nygren credit. In
discussions with DOL, he recommended a better practice would be
to dispose of the case and worry about the Nygren issue within
60 or 90 days.
CHAIR COGHILL asked if justice wouldn't be better served if the
court knew the value of the Nygren credit ahead of time.
MR. STEINER agreed that more information is always helpful to
the court, but the practical concern is whether it is possible
to collect that information before disposition, because of the
extra work upfront.
CHAIR COGHILL offered his understanding that the defendant would
be responsible for making that information available.
MR. STEINER said yes, but it would implicate a number of
agencies in trying to collect the information early.
CHAIR COGHILL asked Mr. Steiner to submit written comments with
the issues identified by section and continue his testimony
another time.
MR. STEINER agreed.
2:36:32 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, Anchorage, AK,
said she wanted to comment on the record about the provisions
regarding domestic violence, extensions of statutes of
limitations, and creating new crimes, because they all may have
some impact on the court's caseload. Extending statutes of
limitations and expanding the definitions of crimes are aimed to
increase filings. There isn't an estimate of how many more that
would be, but the assumption is that those won't result in a
substantial impact.
She explained that the $20,000 fiscal note goes to Section 30,
which would have the Judicial Council put out information about
how well judges are following statutory requirements to consider
certain victim information at sentencing hearings. At this
point, it isn't clear what mechanism the council would use to
collect good data. A provisional decision is to have judges
provide the information on the judgment forms so it could be
entered it into the case management system, which is called
CourtView. The data about how well judges are doing in this
regard would be sent to the Judicial Council and published every
six years. The fiscal note reflects the potential modification
to CourtView.
She added that this provision could be problematic to the Court
System as a whole because there is a danger that the information
about judges wouldn't be accurate. There's a strong sense among
judges that victims at sentencings are always able to speak if
they are present so in addition to this being mechanically
difficult for the Judicial Council, there's a question as to how
necessary it is. She reiterated that she wanted it on the record
that it would possibly be difficult for the court to help the
Judicial Council comply.
2:40:29 PM
SENATOR WIELECHOWSKI questioned who was responsible right now
for compiling the potentially invasive information on a victim
under AS 12.55.025(a)(5).
MS. MEADE replied the Department of Corrections (DOC) collects
the information for the presentence report. That report is
required to include a victim impact statement and the judge uses
that information at sentencing. She said she wasn't sure how
detailed the report might be regarding the financial and medical
impact on the victim.
SENATOR WIELECHOWSKI assumed that the judge would be excused
from using the data if the person declined to provide the
information. He asked if she read it that way.
MS. MEADE replied she wasn't sure how to read it because that
sort of data isn't precise. She supposed that the court could be
considered compliant if the judge said he or she considered the
statute. However, what the judge is supposed to do depends on
the great variety of what victims want.
SENATOR WIELECHOWSKI said he could see the problems that might
arise.
CHAIR COGHILL commented on the balance between protection in
court and protection from the court. He asked Ms. Carpeneti if
she had any closing comments.
2:44:36 PM
MS. CARPENETI said the comments were thoughtful and she had been
discussing the bill with Mr. Steiner. His comments always make
the bill better.
CHAIR COGHILL stated his intention to continue the discussion.
2:46:47 PM
CHAIR COGHILL announced he would hold SB 22 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB0022A.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Sectional -- SB 22.doc |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| SJR 6.pdf |
SJUD 2/4/2013 1:30:00 PM |
SJR 6 |
| SJR 6 Fiscal Note.xls |
SJUD 2/4/2013 1:30:00 PM |
SJR 6 Fiscal Note |
| Letter from ANDVSA.pdf |
SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |
| Comments by Comm Masters re SB 22.pdf |
SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |