Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/11/2013 01:30 PM Senate JUDICIARY


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01:34:40 PM Start
01:35:08 PM SB22
03:00:23 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 22 CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT TELECONFERENCED
Heard & Held
-- Public Testimony <Time Limit May be Set> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
        SB  22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT                                                                     
                                                                                                                                
1:35:08 PM                                                                                                                    
CHAIR COGHILL announced  the consideration of SB  22 and informed                                                               
the committee that  the Department of Law  would review potential                                                               
changes to the bill.                                                                                                            
                                                                                                                                
SENATOR DYSON  asked if the  committee would consider any  of the                                                               
issues raised by the ACLU of Alaska, because some had merit.                                                                    
                                                                                                                                
CHAIR  COGHILL  said  that  he  had not  spoken  to  Mr.  Mittman                                                               
personally, but would consider his written testimony.                                                                           
                                                                                                                                
1:38:56 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Legal Services  Section, Department of Law  (DOL), explained that                                                               
the suggestions contained  in the informal draft  were made after                                                               
talking to the public defender  and listening to public testimony                                                               
in the judiciary committees from both bodies.                                                                                   
                                                                                                                                
She said the first  change appears on page 5, line  29, and is in                                                               
the  context of  making it  a crime  for a  probation officer  or                                                               
parole  officer to  engage in  sexual  contact with  a person  on                                                               
probation or parole. The informal  draft adds this offense to the                                                               
other  sexual assault  offenses  for which  there  is a  marriage                                                               
defense.                                                                                                                        
                                                                                                                                
CHAIR COGHILL  informed the committee  that Tom Stenson  with the                                                               
ACLU  of  Alaska  and  Kathy  Monfreda  with  the  Department  of                                                               
Corrections (DOC) were available for questions.                                                                                 
                                                                                                                                
1:42:05 PM                                                                                                                    
SENATOR   WIELECHOWSKI  observed   that   this  provision   still                                                               
criminalizes  the  sexual  relationship between  a  probation  or                                                               
parole officer and a boyfriend  or girlfriend who is on probation                                                               
or parole.                                                                                                                      
                                                                                                                                
MS. CARPENETI confirmed that the  marriage defense does not apply                                                               
to a  relationship outside  the confines  of marriage.  She noted                                                               
that  this  is the  same  for  police officers  and  correctional                                                               
officers; the marriage defense does  not extend to a relationship                                                               
between  two parties.  The justification  in  both situations  is                                                               
that there is potential for coercion.                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI  suggested  amending the  language  to  say                                                               
someone under the authority of  a probation or parole officer. He                                                               
stated support for  the intent, because the  current language may                                                               
inadvertently  criminalize  a  relationship  where  there  is  no                                                               
authority.                                                                                                                      
                                                                                                                                
MS. CARPENETI  said she  was willing  to continue  the discussion                                                               
with  the  public  defender,  but   coercion  was  a  problem.  A                                                               
probation or parole officer has  power over a person on probation                                                               
or  parole  even  if  the  probationer/parolee  isn't  under  the                                                               
officer's supervision.                                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI   asked  how   long  probation   or  parole                                                               
typically lasts.                                                                                                                
                                                                                                                                
MS. CARPENETI replied  that it depends on the crime;  it can last                                                               
up to 25 years for a felony sex  offence and up to 10 years for a                                                               
non-sex  felony offense.  She  offered to  follow  up with  other                                                               
numbers.                                                                                                                        
                                                                                                                                
She  directed  attention  to  the next  change  proposed  by  the                                                               
informal  draft  on page  6,  lines  5-18.  It clarifies  when  a                                                               
defendant is ordered to have no  contact with a victim or witness                                                               
as part  of a sentence  or as a  condition of probation  or bail,                                                               
that the  order comes from  the court. It further  clarifies that                                                               
the Parole Board issues no contact orders for parolees.                                                                         
                                                                                                                                
CHAIR COGHILL  asked if without  this provision the  Parole Board                                                               
has that authority.                                                                                                             
                                                                                                                                
MS.  CARPENETI   confirmed  that   the  Parole  Board   has  that                                                               
authority. The  substantive change  is to  clarify that  when the                                                               
court orders  a defendant  to have  no contact  with a  victim or                                                               
witness as a condition of bail,  that order applies both when the                                                               
defendant meets  bail and when  the defendant does not  meet bail                                                               
and returns  to jail. She  relayed that  this issue arose  when a                                                               
judge in  Fairbanks said  that the  order does  not apply  when a                                                               
defendant doesn't meet  bail and returns to jail.  She noted that                                                               
there were  cases of an  inmate calling a witness  numerous times                                                               
to exert influence.                                                                                                             
                                                                                                                                
She said  the next change  proposed by the informal  draft occurs                                                               
on page 6,  lines 22-23. It relates to forfeiture  of property in                                                               
cases of prostitution. Current law  says that the property of sex                                                               
traffickers and patrons  of prostitutes - where the  offense is a                                                               
felony - shall  be forfeited if it is used  to further the crime.                                                               
The bill  proposes that the forfeiture  apply to any patron  of a                                                               
prostitute,  whereas  the  informal draft  makes  the  forfeiture                                                               
discretionary with the  court and requires that  the defendant be                                                               
convicted  before  forfeiture  may  be ordered.  She  noted  that                                                               
forfeiture  proceedings generally  do  not  require a  conviction                                                               
because they  are considered a  civil action. She cited  fish and                                                               
game forfeiture proceedings as an example.                                                                                      
                                                                                                                                
SENATOR DYSON asked  if it was DOL's position that  patrons of an                                                               
adult prostitute would be subject  to forfeiture proceedings, and                                                               
relayed that he was uncomfortable with that.                                                                                    
                                                                                                                                
MS. CARPENETI  confirmed that the  bill currently  provides that.                                                               
She  added that  part of  the  Governor's goal  to reduce  sexual                                                               
assault  and sexual  abuse in  the  state includes  making it  as                                                               
difficult  as  possible  for  the  patron  or  "demand  side"  of                                                               
prostitution.                                                                                                                   
                                                                                                                                
SENATOR  DYSON  asked  which  property of  the  patron  would  be                                                               
subject to forfeiture.                                                                                                          
                                                                                                                                
MS. CARPENETI  replied it would be  the property that is  used to                                                               
institute, aid, or facilitate prostitution.                                                                                     
                                                                                                                                
SENATOR DYSON said, "Not his home, but his car."                                                                                
                                                                                                                                
MS.   CARPENETI   clarified  that   it   would   depend  on   the                                                               
circumstance.                                                                                                                   
                                                                                                                                
1:50:52 PM                                                                                                                    
CHAIR COGHILL stated  agreement with the concept  and support for                                                               
the  requirement  that  the defendant  be  convicted  before  the                                                               
forfeiture could be  ordered. He asked for  confirmation that the                                                               
forfeiture would be  discretionary and that under  current law it                                                               
was mandatory.                                                                                                                  
                                                                                                                                
MS. CARPENETI confirmed that the  informal draft changes the term                                                               
"shall" to  "may" so the  forfeiture would be  discretionary. She                                                               
highlighted  that the  Department of  Law  (DOL) has  to ask  for                                                               
forfeiture, and that doesn't happen very often.                                                                                 
                                                                                                                                
SENATOR DYSON  asked when forfeiture  of property would  become a                                                               
possibility.                                                                                                                    
                                                                                                                                
MS. CARPENETI explained  that the informal draft  would allow the                                                               
court to  consider a request  to forfeit property for  all levels                                                               
of sex trafficking,  for being the patron of a  prostitute at the                                                               
felony level..                                                                                                                  
                                                                                                                                
SENATOR  DYSON  asked  if  forfeiture  procedures  would  include                                                               
misdemeanor offenses.                                                                                                           
                                                                                                                                
1:52:33 PM                                                                                                                    
MS.  CARPENETI  confirmed  that forfeiture  would  apply  to  the                                                               
misdemeanor offense of being a patron of a prostitute.                                                                          
                                                                                                                                
She  directed  attention  to  the next  change  proposed  by  the                                                               
informal draft  on page 7, lines  28-31 through page 8,  lines 1-                                                               
15. It  relates to participation  in a global  positioning system                                                               
(GPS) monitoring program as a condition of bail.                                                                                
                                                                                                                                
The original  bill allows the  court discretion, in  releasing on                                                               
bail  a person  in  connection with  a  crime involving  domestic                                                               
violence, to  require the defendant to  participate in electronic                                                               
monitoring  by  a global  positioning  system  (GPS) device.  The                                                               
informal  draft removes  it from  the civil  arena of  protective                                                               
orders and  adds it  as a  possibility for a  court to  order GPS                                                               
monitoring  as a  condition of  bail for  a stalking  crime or  a                                                               
crime involving domestic violence.                                                                                              
                                                                                                                                
SENATOR   DYSON   asked   if  that   includes   the   misdemeanor                                                               
classification.                                                                                                                 
                                                                                                                                
MS.  CARPENETI  confirmed  that some  crimes  involving  domestic                                                               
violence  are misdemeanors.  For example,  stalking in  the first                                                               
degree  is  a class  A  misdemeanor  and  assault in  the  fourth                                                               
degree, which  can be  a domestic  violence crime,  is a  class A                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
CHAIR  COGHILL  summarized that  the  informal  draft places  GPS                                                               
monitoring in the criminal code.                                                                                                
                                                                                                                                
MS. CARPENETI  agreed and added  that the court  arguably already                                                               
has this authority  because it has the general power  in the bail                                                               
statutes to  order conditions on  a defendant that  are necessary                                                               
or reasonable  to protect  the victim,  the victim's  family, and                                                               
the community.  She highlighted that  the GPS  monitoring program                                                               
has to meet  guidelines adopted by the  Department of Corrections                                                               
in consultation with the Department of Public Safety.                                                                           
                                                                                                                                
She said  the next change  proposed by the informal  draft occurs                                                               
on page 9,  lines 17-18. It relates to expanding  the rape shield                                                               
law. The  bill provides in  cases of  sex assault, sex  abuse, or                                                               
unlawful exploitation  of a minor  that before a  defendant could                                                               
introduce evidence  about the  sexual conduct  of the  victim, it                                                               
must  first be  raised in  camera in  the court.  This gives  the                                                               
court  the opportunity  to weigh  the relevance  of the  evidence                                                               
against the prejudice and invasion  of privacy of the complaining                                                               
witness.  The  defendant must  also  raise  the issue  five  days                                                               
before trial.                                                                                                                   
                                                                                                                                
The  informal  draft  gives  the  defendant  the  opportunity  to                                                               
request that the evidence about  the complaining witness's sexual                                                               
conduct  be admissible  after the  deadline of  five days  before                                                               
trial if the evidence is discovered after the deadline.                                                                         
                                                                                                                                
SENATOR DYSON asked if this applies to both minors and adults.                                                                  
                                                                                                                                
1:56:52 PM                                                                                                                    
MS. CARPENETI answered yes.                                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI   asked  if   this  satisfies   the  public                                                               
defender's concerns.                                                                                                            
                                                                                                                                
MS.  CARPENETI  responded  that  Mr. Steiner  said  it's  a  good                                                               
compromise  but  he would  suggest  using  the term  "information                                                               
learned" as opposed to "evidence  discovered," because the latter                                                               
has  term of  art  concerns. She  said she  had  no objection  to                                                               
changing the term.                                                                                                              
                                                                                                                                
1:58:10 PM                                                                                                                    
SENATOR WIELECHOWSKI said  he wanted to think about  Section 15 a                                                               
little  more  because  the  language  likely  had  constitutional                                                               
issues.                                                                                                                         
                                                                                                                                
MS. CARPENETI suggested that the  best practice would be to raise                                                               
the evidence to the court  and reserve the decision about whether                                                               
to introduce it or not.                                                                                                         
                                                                                                                                
1:59:38 PM                                                                                                                    
SENATOR WIELECHOWSKI  said he didn't  dispute that it's  the best                                                               
practice,  but   it  probably  wouldn't  meet   a  constitutional                                                               
challenge.                                                                                                                      
                                                                                                                                
2:00:05 PM                                                                                                                    
MS. CARPENETI directed attention to  the next changes proposed by                                                               
the informal draft on page 10,  lines 18-31 and page 11, lines 1-                                                               
13.  These  relate  to  claiming  credit  for  time  spent  in  a                                                               
treatment  program  under  certain  circumstances.  The  informal                                                               
draft allows  the defendant to request  the credit up to  90 days                                                               
after  the hearing.  The  new subsection  (l) on  page  10 was  a                                                               
suggestion of  the public defender.  For those cases that  are on                                                               
appeal,  it requires  a person  to request  credit, if  it hasn't                                                               
already been given, within 90 days  of the case being returned to                                                               
the trial court.                                                                                                                
                                                                                                                                
2:01:55 PM                                                                                                                    
SENATOR  DYSON asked  if it  was  reasonable to  assume that  the                                                               
credit  would not  apply if  a  person goes  through a  treatment                                                               
program and has a subsequent violation.                                                                                         
                                                                                                                                
MS.  CARPENETI  explained  that  if  a  person  participates  and                                                               
follows the rules  of a treatment program that is  similar to the                                                               
constrictions of  serving time in  jail, that person has  a right                                                               
to credit whether they finish the program or not.                                                                               
                                                                                                                                
SENATOR DYSON opined that the court  should not give credit if it                                                               
has demonstrable evidence that the treatment did not work.                                                                      
                                                                                                                                
2:03:11 PM                                                                                                                    
MS. CARPENETI responded  that current law provides  credit if the                                                               
person  participated  and followed  the  rules  of the  treatment                                                               
program, regardless of subsequent conduct.                                                                                      
                                                                                                                                
SENATOR DYSON asked if in  her professional judgment, she thought                                                               
that was wise.                                                                                                                  
                                                                                                                                
MS. CARPENETI offered  her belief that it is worth  the effort to                                                               
go  through  a treatment  programs  even  though  it may  not  be                                                               
successful the first time.                                                                                                      
                                                                                                                                
2:04:02 PM                                                                                                                    
CHAIR  COGHILL  recapped that  the  new  subsection gives  a  new                                                               
procedure a tighter timeline than under current law.                                                                            
                                                                                                                                
MS. CARPENETI agreed.                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI asked if there was new subsection.                                                                         
                                                                                                                                
MS.  CARPENETI  clarified that  the  informal  draft adds  a  new                                                               
subsection (l).                                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  informal draft adds procedures                                                               
that a defendant must follow in order to get the credit.                                                                        
                                                                                                                                
MS. CARPENETI  said she imagines  there would be a  letter saying                                                               
that  the defendant  participated  in the  treatment program  and                                                               
followed  the rules.  That information  should be  raised at  the                                                               
next hearing so  that it could be awarded in  a timely manner and                                                               
not forgotten or confused.                                                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI  asked about the underlying  policy thought.                                                               
He opined  that it's a  bureaucratic hurdle to make  someone file                                                               
with the court when the person isn't versed in the procedures.                                                                  
                                                                                                                                
MS.  CARPENETI responded  that making  the decision  early rather                                                               
than later  would save time and  effort in the long  term. In the                                                               
Walker  case, for  example, the  court was  trying to  figure out                                                               
whether  the  defendant got  credit  for  the  time he  spent  in                                                               
treatment back  in the early part  of the century. It  would have                                                               
been much  easier if the issue  had been resolved at  the time of                                                               
sentencing or disposition on the probation violation.                                                                           
                                                                                                                                
2:07:37 PM                                                                                                                    
SENATOR WIELECHOWSKI  said it seems  that someone who  earned the                                                               
credit potentially would  have to spend more time  in jail simply                                                               
because  he or  she  missed  the 90-day  deadline.  He posed  the                                                               
hypothetical situation of someone who files on day 91.                                                                          
                                                                                                                                
MS. CARPENETI responded that she  had enough faith in the justice                                                               
system to think that the court would consider that circumstance.                                                                
                                                                                                                                
SENATOR WIELECHOWSKI pointed out  that this specifically says the                                                               
court may not consider a request after the deadline.                                                                            
                                                                                                                                
2:08:42 PM                                                                                                                    
MS. CARPENETI offered to work  with him on acceptable language to                                                               
establish a meaningful deadline.                                                                                                
                                                                                                                                
CHAIR  COGHILL said  he was  thinking about  whether there  was a                                                               
practical reason that  somebody in jail or  under probation could                                                               
not meet this deadline.                                                                                                         
                                                                                                                                
2:09:53 PM                                                                                                                    
MS. CARPENETI said  [Sec. 19] deals with the  situation where the                                                               
person has  been in treatment as  a condition of bail  release in                                                               
connection with a petition to  revoke probation or as a condition                                                               
of probation.                                                                                                                   
                                                                                                                                
CHAIR  COGHILL   summarized  that   it's  the   same  fundamental                                                               
requirement under three circumstances.                                                                                          
                                                                                                                                
MS. CARPENETI agreed; it's to  make it clear that application for                                                               
credit should be made as soon as possible.                                                                                      
                                                                                                                                
2:11:04 PM                                                                                                                    
SENATOR  WIELECHOWSKI suggested  [on  page 10,  line  26, of  the                                                               
informal draft]  inserting "except for good  cause" following the                                                               
phrase "a court  may not" to accommodate a  legitimate reason for                                                               
not filing within 90 days.                                                                                                      
                                                                                                                                
MS. CARPENETI agreed to work on satisfactory language.                                                                          
                                                                                                                                
CHAIR  COGHILL suggested  inserting  that language  in all  three                                                               
subsections.                                                                                                                    
                                                                                                                                
2:12:01 PM                                                                                                                    
MS.  CARPENETI said  the next  changes proposed  by the  informal                                                               
draft occur  in Sections  22 and 23.  These address  the majority                                                               
decision in  Collins v.  State, 287 P.3d  791 (Alaska  APP. 2012)                                                               
that  addressed the  standards a  sentencing  court considers  in                                                               
deciding  whether a  person qualifies  for referral  to a  three-                                                               
judge sentencing panel.  The bill describes the  defendant in two                                                               
separate  paragraphs  as  being  "a youthful  offender"  and  the                                                               
informal draft removes that factor.                                                                                             
                                                                                                                                
She  explained  that the  Yako  Collins  decision looked  at  the                                                               
legislative  intent in  2006 when  the legislature  passed Senate                                                               
Bill  218,   which  raised  the  sentencing   ranges  for  people                                                               
convicted of sex  felonies. That legislature adopted  a Letter of                                                               
Intent  that stated  the purposes  and  rationale underlying  the                                                               
sentencing increases  and recognized  that people who  commit sex                                                               
felonies are  more likely to  reoffend and are more  difficult to                                                               
rehabilitate.                                                                                                                   
                                                                                                                                
CHAIR COGHILL noted that both  the Collins decision and Letter of                                                               
Intent were in members packets.                                                                                                 
                                                                                                                                
MS. CARPENETI continued to explain  that the majority decision in                                                               
Collins  found  that  because  the   sentencing  ranges  for  sex                                                               
felonies were  being raised,  the legislature  in 2006  also must                                                               
have intended to create new  mitigating factors for referring sex                                                               
felons to  a three-judge panel.  The Department of  Law disagrees                                                               
with the 2012 court of  appeals' interpretation of that Letter of                                                               
Intent and these sections are intended to reverse that decision.                                                                
                                                                                                                                
SENATOR DYSON asked for an explanation of the role of the three-                                                                
judge panel.                                                                                                                    
                                                                                                                                
2:15:28 PM                                                                                                                    
MS. CARPENETI explained  that in the early  1980s the legislature                                                               
adopting  a  presumptive  sentencing   scheme  that  allowed  the                                                               
application of either aggravating  or mitigating factors in order                                                               
to  avoid  manifestly  unjust  sentences.  The  legislature  also                                                               
created a three-judge  panel to which the  sentencing court could                                                               
refer  a  defendant.  It  has more  discretion  in  sentencing  a                                                               
defendant if  manifest injustice would result  from imposition of                                                               
the presumptive term.                                                                                                           
                                                                                                                                
2:17:06 PM                                                                                                                    
MS.  CARPENETI relayed  that in  both Blakely  v. Washington  and                                                               
Apprendi  v.  New  Jersey  the   U.S.  Supreme  Court  held  that                                                               
presumptive sentencing  schemes -  like Alaska  had at  the time,                                                               
violated the constitution  unless a jury decided  by proof beyond                                                               
a reasonable doubt  that the aggravating factors  were present in                                                               
the case, with some exceptions.                                                                                                 
                                                                                                                                
CHAIR  COGHILL  commented  that   it  relates  to  the  "youthful                                                               
offender" language in both sections.                                                                                            
                                                                                                                                
MS.  CARPENETI responded  that both  paragraphs that  referred to                                                               
that factor  were removed  because that  aspect was  not directly                                                               
addressed  in  Yako  Collins  v.  State.  The  main  factors  are                                                               
"prospects for  rehabilitation that are less  than extraordinary"                                                               
and  "no history  of  unprosecuted,  undocumented, or  undetected                                                               
sexual offenses."                                                                                                               
                                                                                                                                
Following the  Blakely decision, the legislature  in 2004 adopted                                                               
sentencing ranges and in 2006  raised the ranges for sex felonies                                                               
based on findings that sex  felons reoffend four times more often                                                               
than other felons and are difficult to treat.                                                                                   
                                                                                                                                
CHAIR  COGHILL  noted  that Quinlan  Steiner  was  available  for                                                               
questions.                                                                                                                      
                                                                                                                                
SENATOR DYSON asked if the judge  or three-judge panel is able to                                                               
consider as  a mitigater  the efforts the  defendant has  made to                                                               
restore the victim.                                                                                                             
                                                                                                                                
MS.  CARPENETI   confirmed  that   that  one   consideration  for                                                               
referring  a  case to  a  three-judge  panel is  the  defendant's                                                               
conduct after  the trial. She  cited the McKinley case  where the                                                               
court  concluded  that  the defendant's  subsequent  conduct  was                                                               
exemplary  and  it  was  something   a  three-judge  panel  could                                                               
consider.                                                                                                                       
                                                                                                                                
CHAIR COGHILL  noted that  under the  Collins case,  the standard                                                               
for behavior was reduced from good to excellent.                                                                                
                                                                                                                                
MS.  CARPENETI  clarified  that the  Collins  case  decided  that                                                               
another factor that allowed a sentencing  court to send a case to                                                               
a  three-judge panel  was that  the defendant  had "extraordinary                                                               
prospects" for  rehabilitation. The  court of appeals  in Collins                                                               
held that  the legislative intent  was to  refer sex felons  to a                                                               
three-judge panel if they have  less than extraordinary prospects                                                               
for rehabilitation.                                                                                                             
                                                                                                                                
CHAIR  COGHILL  noted   that  the  bill  puts   the  standard  at                                                               
"extraordinary."                                                                                                                
                                                                                                                                
MS.  CARPENETI confirmed  that  the  intent of  the  bill was  to                                                               
return to pre-Collins.                                                                                                          
                                                                                                                                
She said the next change  proposed by the informal draft tightens                                                               
the  definition  of a  military  organization  that is  a  victim                                                               
counseling  center.  This  occurs  on   page  14,  line  12,  and                                                               
specifies that it  is "an organization operated  by or contracted                                                               
by a branch of the United States military."                                                                                     
                                                                                                                                
2:22:50 PM                                                                                                                    
SENATOR DYSON  asked if a  sex crime would  be tried in  state or                                                               
military court  if the  offense occurred in  Alaska and  both the                                                               
victim and defendant were members of the military.                                                                              
                                                                                                                                
MS. CARPENETI  responded that  if it occurred  in Alaska  a state                                                               
court would prosecute the offense.                                                                                              
                                                                                                                                
SENATOR DYSON asked how the state  would get involved in a sexual                                                               
assault  case that  occurred on  a  base and  wasn't reported  to                                                               
state  authorities. He  mentioned a  hypothetical situation  of a                                                               
sex assault report to a military officer that went no further.                                                                  
                                                                                                                                
MS. CARPENETI  offered to  follow up  with more  information, but                                                               
her  understanding  was that  if  it  weren't reported  to  state                                                               
authorities,  the  state wouldn't  know  about  it and  therefore                                                               
wouldn't  investigate.   She  assumed   that  the   police  would                                                               
investigate if the incident was reported.                                                                                       
                                                                                                                                
SENATOR  DYSON said  the inference  is that  in the  hypothetical                                                               
situation there  is no automatic  process for  a report to  go to                                                               
public safety.                                                                                                                  
                                                                                                                                
MS. CARPENETI  offered to follow  up because she  wasn't familiar                                                               
with the process.                                                                                                               
                                                                                                                                
CHAIR COGHILL suggested it was a question for public safety.                                                                    
                                                                                                                                
2:24:54 PM                                                                                                                    
SENATOR WIELECHOWSKI  returned attention to the  section that was                                                               
removed  that   would  eliminate  the  possibility   of  a  court                                                               
requiring a respondent in a civil  matter to participate in a GPS                                                               
monitoring program. Notwithstanding  the compelling testimony, he                                                               
said he continued to believe that  in some cases it could be very                                                               
beneficial  to have  court-ordered GPS  monitoring. He  suggested                                                               
that  the  better  policy  would   be  to  give  the  court  that                                                               
discretion.                                                                                                                     
                                                                                                                                
MS. CARPENETI said  her conclusion was that it's best  to start a                                                               
GPS monitoring  program in the criminal  context because probable                                                               
cause  has  established that  a  crime  has been  committed,  the                                                               
person has  appeared in  court, and the  judge has  evaluated the                                                               
situation.  She added  that  it doesn't  mean  that the  question                                                               
shouldn't be reconsidered in the future.                                                                                        
                                                                                                                                
2:26:26 PM                                                                                                                    
MS.  CARPENETI continued  that the  next change  proposed by  the                                                               
informal  draft  occurs on  page  15,  line  24, and  relates  to                                                               
evaluation of  judges. The  bill refers  to the  judicial council                                                               
collecting   information  that   includes  data   on  a   judge's                                                               
compliance  when  imposing sentence  on  persons  convicted of  a                                                               
felony offense. The informal draft  removes the reference to data                                                               
so the judicial council will collect information.                                                                               
                                                                                                                                
SENATOR  WIELECHOWSKI  expressed  interest in  hearing  from  the                                                               
court about whether this solves their concerns.                                                                                 
                                                                                                                                
MS.  CARPENETI continued  that the  next change  proposed by  the                                                               
informal  draft occurs  on page  17,  lines 7-9.  It defines  the                                                               
attorney   general's   designee   in  connection   with   issuing                                                               
administrative subpoenas  to an Internet service  provider as the                                                               
deputy attorneys  general for  either the  criminal or  the civil                                                               
divisions.    She   noted    this   change    addressed   Senator                                                               
Wielechowski's concerns.                                                                                                        
                                                                                                                                
She said the final change  proposed by the informal draft relates                                                               
to a Court  Rule amendment found on page 20,  lines 1-18, intends                                                               
to limit the  publication of child pornography  that is attendant                                                               
on the  criminal discovery process.  It clarifies that  this rule                                                               
applies to material  that is prohibited by Alaska  law or defined                                                               
as child pornography under federal law.                                                                                         
                                                                                                                                
CHAIR COGHILL  noted that the  members of the  Children's Justice                                                               
Task Force expressed concern on  this topic and the potential for                                                               
revictimization.                                                                                                                
                                                                                                                                
MS. CARPENETI said she believes  that every time this material is                                                               
copied or viewed, it revictimizes the child.                                                                                    
                                                                                                                                
CHAIR COGHILL asked Mr. Steiner  to comment and offer suggestions                                                               
on the informal draft.                                                                                                          
                                                                                                                                
2:30:16 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration  (DOA), said  the  change  regarding Collins  that                                                               
eliminates the  consideration of  someone's status as  a youthful                                                               
offender   is   an   improvement,  because   that   question   is                                                               
traditionally  before  the  court  in  making  a  decision  about                                                               
referral to  a three-judge  panel. However,  there is  still some                                                               
ambiguity  and  the language  could  possibly  be interpreted  to                                                               
eliminate from consideration the fact  that somebody has no prior                                                               
criminal history. He noted that  he discussed clarifying language                                                               
with the  Department of  Law for  this section  to go  no further                                                               
than to reverse Collins.                                                                                                        
                                                                                                                                
He said the  changes to Section 8 appear to  address the concerns                                                               
regarding unlawful  contact. It  clarifies that the  order should                                                               
come from the court.                                                                                                            
                                                                                                                                
He  expressed continuing  concern  with Section  15 about  making                                                               
application five  days before trial  to admit evidence  about the                                                               
sexual  conduct of  the  victim  prior to  or  subsequent to  the                                                               
charged offense. That concern is  mitigated by the changes in the                                                               
bill,  although  the language  on  page  9,  line 18,  refers  to                                                               
"evidence discovered"  and those are  terms of art that  could be                                                               
misinterpreted. He opined  that the intent of the  language is to                                                               
be much  broader regarding any  information learned.  A remaining                                                               
concern is about  strategic decisions that occur  after trial for                                                               
things that happened during trial.                                                                                              
                                                                                                                                
CHAIR COGHILL asked about the strategy.                                                                                         
                                                                                                                                
MR. STEINER responded  that it's good practice  to make decisions                                                               
on evidence  ahead of time,  but there  may be reasons  to change                                                               
course  or strategy  mid  trial. He  said there  would  be a  due                                                               
process concern  if new evidence  was discovered and  the defense                                                               
could not change strategy.                                                                                                      
                                                                                                                                
CHAIR COGHILL asked about the  significance of the time limit and                                                               
the preliminary hearing.                                                                                                        
                                                                                                                                
MR. STEINER responded that the time  limit of not later than five                                                               
days still  applies. The  change that helped  was removal  of the                                                               
phrase "evidence admitted  at trial," because it  was too narrow.                                                               
He suggested  amending the language  further to  say "information                                                               
learned by  the defense," because "evidence  discovered" could be                                                               
viewed as  a term  of art.  It would have  to be  actual evidence                                                               
that  was discovered  through the  discovery process  rather than                                                               
something the defense learned from another source.                                                                              
                                                                                                                                
2:37:45 PM                                                                                                                    
SENATOR DYSON  asked if it was  a concern that either  side might                                                               
withhold evidence for tactical reasons.                                                                                         
                                                                                                                                
MR.  STEINER  responded that  with  few  exceptions, the  defense                                                               
generally  has   no  obligation  to  disclose   its  strategy  or                                                               
witnesses  before trial.  He  continued to  say  that the  notice                                                               
wasn't as much a concern as  any bar to later seeking application                                                               
to  admit evidence.  If  the  bar is  absolute,  that raises  due                                                               
process issues.                                                                                                                 
                                                                                                                                
SENATOR DYSON  asked if  the judge makes  the decision  about the                                                               
admissibility of new information.                                                                                               
                                                                                                                                
MR.  STEINER responded  that  the current  draft  says the  judge                                                               
determines  whether to  admit  previously inadmissible  evidence.                                                               
The  problem  with the  current  language  is  that it  does  not                                                               
explicitly permit application after  the deadline in a sufficient                                                               
number of situations.                                                                                                           
                                                                                                                                
CHAIR COGHILL asked if the  time limit would outweigh the factors                                                               
of  undue  prejudice, confusion  of  the  issues, or  unwarranted                                                               
invasion of the privacy of the complaining witness.                                                                             
                                                                                                                                
MR. STEINER  said he wasn't  sure how  a judge would  weigh that,                                                               
but  good  cause  language  when something  is  barred  helps  to                                                               
prevent due  process violations and  gives the judge  latitude to                                                               
weigh all concerns and make a decision.                                                                                         
                                                                                                                                
2:41:28 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if the  provision as currently drafted                                                               
would lead  to more  applications by  defendants, more  in camera                                                               
proceedings,  and more  time spent  by the  court evaluating  the                                                               
situation.                                                                                                                      
                                                                                                                                
MR.  STEINER  said he  shared  that  concern. He  then  expressed                                                               
continuing concern  with Sections 3  and 7 of the  informal draft                                                               
that  relate  to a  probation  or  parole officer  having  sexual                                                               
contact with somebody who is  on probation or parole. The problem                                                               
is  that  the  marriage  defense would  not  absolve  someone  of                                                               
criminal   liability  if   that  person   were  in   a  long-term                                                               
relationship.  Individuals  would  have  a  constitutional  claim                                                               
against the statute in that  circumstance and for individuals who                                                               
are   barred  from   marrying  because   of  the   constitutional                                                               
definition of marriage as between a man and a woman.                                                                            
                                                                                                                                
CHAIR COGHILL asked if there was a marriage defense.                                                                            
                                                                                                                                
MR. STEINER  clarified that he  was not referring  to evidentiary                                                               
privileges, but to the fact that  there is no exception under the                                                               
statue for a  probation officer who is in  a long-term, committed                                                               
relationship.  He added  that this  could include  something like                                                               
unsupervised misdemeanor probation for a DUI.                                                                                   
                                                                                                                                
CHAIR COGHILL  summarized that  the intent  was to  keep somebody                                                               
who  has  authority from  exerting  undue  pressure over  another                                                               
person, and asked about looking for a different standard.                                                                       
                                                                                                                                
2:46:17 PM                                                                                                                    
MR.  STEINER said  it would  be easy  to draft  the provision  to                                                               
criminalize the  conduct of  a probation  officer who  was either                                                               
supervising  or  using  their position  of  authority  to  induce                                                               
sexual  contact.  Narrowly  tailoring   the  statute  to  address                                                               
specific conduct would eliminate the need for exceptions.                                                                       
                                                                                                                                
MR. STEINER  informed the committee  that his  remaining comments                                                               
would  apply  to  the  original  bill,  version  A.  He  directed                                                               
attention  to  Section  31  that   eliminates  good  time  credit                                                               
(mandatory parole)  for individuals convicted of  sexual offenses                                                               
that  are class  A and  unclassified  felonies. He  said the  one                                                               
concern is that it would  potentially eliminate the incentive for                                                               
a  person  to  participate  in  these  treatment  programs  while                                                               
incarcerated.                                                                                                                   
                                                                                                                                
MR. STEINER returned attention to  Section 18 of the DOL informal                                                               
draft that  relates to claiming  good time credit for  time spent                                                               
in  a treatment  program  as a  condition of  bail.  He said  his                                                               
continuing concern is  that resolving the question  ahead of time                                                               
and giving  correct notice about  the number of days  somebody is                                                               
seeking  credit   could  create  unnecessary  work   that  delays                                                               
sentencings and  dispositions. He  opined that inserting  the 90-                                                               
day resolution  [after the sentencing hearing]  is an improvement                                                               
but  there were  potential constitutional  concerns if  the court                                                               
were  to  bar someone  from  seeking  credit  after 90  days.  He                                                               
acknowledged   that   the   courts  had   not   established   the                                                               
constitutional  basis  for  Nygren  but  that  conceivable  would                                                               
happen.                                                                                                                         
                                                                                                                                
CHAIR   COGHILL  asked   if  he   heard  Senator   Wielechowski's                                                               
suggestion to  insert on  page 10,  line 26,  following "request"                                                               
the phrase "except  for good cause" so that would  be part of the                                                               
consideration.                                                                                                                  
                                                                                                                                
MR. STEINER agreed that would largely satisfy his concern.                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI pointed  out that it only  addresses the 90-                                                               
day concern, not the 10-day concern.                                                                                            
                                                                                                                                
2:52:36 PM                                                                                                                    
CHAIR COGHILL  asked if it was  a workable timeframe to  keep the                                                               
90-day requirement and remove the 10-day notification.                                                                          
                                                                                                                                
MR. STEINER said  90 days would be a  workable timeframe provided                                                               
there was a good cause section.                                                                                                 
                                                                                                                                
CHAIR  COGHILL asked  if the  10-day notification  would then  be                                                               
unnecessary.                                                                                                                    
                                                                                                                                
MR. STEINER said that's correct.                                                                                                
                                                                                                                                
2:53:22 PM                                                                                                                    
MR. STEINER directed  attention to the original  bill, version A,                                                               
Section 39.  The language permits  the court to mail  evidence to                                                               
an  out-of-state  expert,  but  not to  an  in-state  expert.  He                                                               
suggested treating both  the same in order to  minimize the costs                                                               
of  having  cases  handled  by an  in-state  expert.  The  second                                                               
concern  relates to  the language  on  page 21,  lines 22-23.  It                                                               
doesn't  specify  that  the  material  could  be  made  available                                                               
somewhere in  the Department of  Corrections (DOC)  and therefore                                                               
may require  moving a  criminal defendant  to the  facility where                                                               
the evidence is stored. He  suggested deleting the language about                                                               
a  law  enforcement  or  prosecution  facility  and  leaving  the                                                               
management  of the  viewing to  the discretion  of the  court and                                                               
prosecution.                                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  it was  his experience  that some                                                               
Alaska  villages  do  not have  law  enforcement  or  prosecution                                                               
facilities.                                                                                                                     
                                                                                                                                
MR. STEINER  surmised that the  evidence would  not be held  in a                                                               
small  village.  The  concern  is  not being  able  to  move  the                                                               
evidence to the jail for viewing,  and that it might be difficult                                                               
to move the defendant to the evidence.                                                                                          
                                                                                                                                
SENATOR WIELECHOWSKI  suggested the  better practice would  be to                                                               
make the evidence available where the defendant is located.                                                                     
                                                                                                                                
CHAIR  COGHILL  asked  if  his   concern  related  to  specifying                                                               
locations.                                                                                                                      
                                                                                                                                
MR.  STEINER  said  yes,  because  the  court  could  potentially                                                               
interpret the list as exclusive.                                                                                                
                                                                                                                                
CHAIR COGHILL asked Mr. Steiner if he had any last thoughts.                                                                    
                                                                                                                                
2:59:20 PM                                                                                                                    
MR. STEINER noted  that he expected to continue  working with the                                                               
Department of Law on language that would resolve his concerns.                                                                  
                                                                                                                                
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
Cover letter from Gov and fiscal notes.pdf SJUD 1/30/2013 1:30:00 PM
SJUD 2/11/2013 1:30:00 PM
SJUD 3/1/2013 1:30:00 PM
SB 22
Fiscal Notes from Court System.pdf SJUD 1/30/2013 1:30:00 PM
SJUD 2/11/2013 1:30:00 PM
SB 22
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
Letter from ACLU.pdf SJUD 2/11/2013 1:30:00 PM
SJUD 3/1/2013 1:30:00 PM
SB 22