Legislature(1997 - 1998)

02/27/1998 03:08 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE HEALTH, EDUCATION AND SOCIAL                                    
            SERVICES STANDING COMMITTEE                                        
                 February 27, 1998                                             
                     3:08 p.m.                                                 
MEMBERS PRESENT                                                                
Representative Con Bunde, Chairman                                             
Representative Joe Green, Vice Chairman                                        
Representative Al Vezey                                                        
Representative Fred Dyson                                                      
Representative Tom Brice                                                       
MEMBERS ABSENT                                                                 
Representative Brian Porter                                                    
Representative J. Allen Kemplen                                                
COMMITTEE CALENDAR                                                             
Relating to Step Family Day.                                                   
     - PASSED SSHCR 25 OUT OF COMMITTEE                                        
* HOUSE BILL NO. 367                                                           
"An Act relating to part-time public school students; and providing            
for an effective date."                                                        
     - HEARD AND HELD                                                          
* HOUSE BILL NO. 360                                                           
"An Act providing for the civil commitment of sexually violent                 
     - HEARD AND HELD                                                          
HOUSE BILL NO. 302                                                             
"An Act relating to the University of Alaska; and providing for an             
effective date."                                                               
     - BILL HEARING POSTPONED                                                  
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL: HCR 25                                                                   
SHORT TITLE: STEP FAMILY DAY                                                   
SPONSOR(S): REPRESENTATIVES(S) DYSON                                           
Jrn-Date    Jrn-Page           Action                                          
01/20/98      2088     (H)  READ THE FIRST TIME - REFERRAL(S)                  



01/28/98 2155 (H) HES 02/12/98 (H) HES AT 3:00 PM CAPITOL 106 02/12/98 (H) MINUTE(HES) 02/27/98 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 360 SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS SPONSOR(S): REPRESENTATIVES(S) RYAN Jrn-Date Jrn-Page Action


01/28/98 2153 (H) HES, JUDICIARY 02/27/98 (H) HES AT 3:00 PM CAPITOL 106 WITNESS REGISTER EDDY JEANS, Manager School Finance Section Education Support Services Department of Education 801 West 10th Street, Suite 200 Juneau, Alaska 99801-1894 Telephone: (907) 465-2891 POSITION STATEMENT: Testified in opposition to HB 367. MELODY DOUGLAS, Director Business and Finance Kenai Peninsula School District 148 N. Binkley Street Soldotna, Alaska 99669 Telephone: (907) 262-5846 POSITION STATEMENT: Testified in opposition to HB 367. GORDON TERPENING Box 442 Homer, Alaska 99603 Telephone: (907) 235-4083 POSITION STATEMENT: Testified in support of HB 367. KATHY NIELSON P.O. Box 2660 Valdez, Alaska 99686 Telephone: (907) 835-5897 POSITION STATEMENT: Testified on HB 367. REPRESENTATIVE JOE RYAN Alaska State Legislature Capitol Building, Room 420 Juneau, Alaska 99801-1182 Telephone: (907) 465-3875 POSITION STATEMENT: Presented sponsor statement for HB 360. BLAIR MCCUNE, Deputy Director Public Defender Agency Department of Administration 900 West 5th Avenue, Number 200 Anchorage, Alaska 99501 Telephone: (907) 264-4433 POSITION STATEMENT: Testified on HB 360. JOY ALBIN, Representative Fairbanks Alliance P.O. Box 72543 Fairbanks, Alaska 99707 Telephone: (907) 456-4704 POSITION STATEMENT: Testified on HB 360. BETH LACROSSE, Secretary NAMI Alaska P.O. Box 8552 Ketchikan, Alaska 99901 Telephone: (907) 247-2020 POSITION STATEMENT: Testified on HB 360. SUZANNE MANNIKKO, Representative We Against Sexual Predators HC 33, Box 2859-A Wasilla, Alaska 99654 Telephone: (907) 376-6562 POSITION STATEMENT: Testified on HB 360. BRANT MCGEE, Public Advocate Office of Public Advocacy Department of Administration 900 West 5th Avenue, Suite 525 Anchorage, Alaska 99501-2090 Telephone: (907) 269-3500 POSITION STATEMENT: Testified on HB 360. AL AARON P.O. Box 74132 Fairbanks, Alaska 99707 Telephone: Not Provided POSITION STATEMENT: Testified on HB 360. LOIS CAMPBELL, Representative NAMI Alaska P.O. Box 8552 Ketchikan, Alaska 99901 Telephone: (907) 247-2020 POSITION STATEMENT: Testified on HB 360. JEANETTE GRASTO, State President NAMI Alaska 1369 Ballaine Road Fairbanks, Alaska 99709 Telephone: (907) 455-6263 POSITION STATEMENT: Testified on HB 360. DON GRAY, Member Mental Health Board 399 Hillside Drive Fairbanks, Alaska 99712 Telephone: (907) 456-8341 POSITION STATEMENT: Testified on HB 360. WALTER MAJOROS, Executive Director Alaska Mental Health Board 431 North Franklin Street, Number 101 Juneau, Alaska 99801 Telephone: (907) 465-3071 POSITION STATEMENT: Testified HB 360. CYNTHIA COOPER, Deputy Attorney General Criminal Division Office of the Attorney General Department of Law 310 K Street, Suite 501 Anchorage, Alaska 99501-2064 Telephone: (907) 269-6379 POSITION STATEMENT: Testified on HB 360. BRUCE RICHARDS, Program Coordinator Department of Corrections 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907) 465-3307 POSITION STATEMENT: Testified on HB 360. KARL BRIMNER, Director Division of Mental Health & Development Disabilities Department of Health & Social Services P.O. Box 110620 Juneau, Alaska 99811-0620 Telephone: (907) 465-3370 POSITION STATEMENT: Testified on HB 360. ACTION NARRATIVE TAPE 98-16, SIDE A Number 0001 CHAIRMAN CON BUNDE called the House Health, Education and Social Services Standing Committee meeting to order at 3:08 p.m. Members present at the call to order were Representatives Bunde, Vezey, Dyson and Brice. Representative Green arrived at 3:27 p.m. Representatives Porter and Kemplen were absent. SSHCR 25 - STEP FAMILY DAY CHAIRMAN BUNDE announced the first order of business was SSHCR 25, Relating to Step Family Day. He asked Representative Dyson to present the Resolution. Number 0038 REPRESENTATIVE FRED DYSON, sponsor, stated that 38 states have recognized stepfamilies and he agreed to introduce SSHCR 25. He noted there is a high percentage of what is referred to as "blended families" in Alaska. The national organization provides literature, counseling and comfort to families that find themselves facing situations associated with blended families. While the world may not be greatly different for the stepfamilies of Alaska if this legislation passes, in his mind it is a small step that recognizes a very valid sociological phenomena in our culture and that the legislature encourages the success of those families. CHAIRMAN BUNDE asked if there was further public testimony. Hearing none, he closed public testimony. Number 0265 REPRESENTATIVE TOM BRICE made a motion to move SSHCR 25 from committee with individual recommendations and zero fiscal note. There being no objection, SSHCR 25 passed from the House Health, Education and Social Services Standing Committee. HB 367 - PART-TIME PUBLIC SCHOOL STUDENT ENROLLMENT Number 0293 CHAIRMAN BUNDE announced the next item on the calendar was HB 367, "An Act relating to part-time public school students; and providing for an effective date." He asked Representative Dyson to present HB 367. Number 0323 REPRESENTATIVE DYSON, sponsor, said last year the legislature passed HB 158 which clarified the state's position on part-time students. He quoted from Article 7, Section 1, Alaska State Constitution, "The legislature shall by general law establish and maintain a system of public schools open to all children of the state and may provide for other public educational institutions." He emphasized the word "all." From talking with constituents he found that most school districts in the state cheerfully accepted part-time students and accommodated them and the alternative educational opportunities that parents were choosing for their children. In fact, the Fairbanks and Mat-Su School Districts have gone to great lengths to accommodate part-time students. REPRESENTATIVE DYSON continued after passing HB 158 however, it appears there were two school districts who, while acceding to accepting part-time students were using a part of the school regulations, 4 AAC 05.035(b)(1), as an excuse for, in essence, putting the part-time students at the back of the line in terms of access, and sometimes for good reasons. He had expected the State Board of Education to bring the regulation into line with the anti- discrimination bill passed last year and may indeed do that at their March 23 meeting in Juneau. That issue is in doubt, so he is proposing to delete from the regulations, "after full-time public school students have had an opportunity to enroll." It is his opinion the part-time student should have no less access than a full-time student, just as if the student was a part of any other minority group. Number 0552 REPRESENTATIVE DYSON remarked that discussions with school administrators have raised the question of what happens when a senior needs a class to graduate, and there's a part-time in line ahead of the senior. Representative Dyson's position is the senior who needs the class to graduate gets preference, because there is a nondiscriminatory reason for giving it to the senior. The senior has a legitimate need to get the class, with no other option. He thought that school administrators were clearly within their rights in giving seniors preference over juniors, because the juniors have more chance to pick up the courses. He cited an example of an expensive, specialized course offered by the school and a flood of part-time students force the school to add another section of this very expensive class. His position is the school district should not treat that any different than if a flood of full-time students needed the course. If the demand for the course exists, and education should be consumer driven, then the school district should do what it can to put on another section of the course. If the district needs to exercise triage, it's first come, first served. If indeed the full-time student needs the course to fulfill graduation requirements and the part-time student doesn't, then the full-time student should be given the class and the part- time student can wait until the next term. Number 0713 CHAIRMAN BUNDE questioned a situation like a computer class, where it may not be possible to gear up and offer another class. REPRESENTATIVE DYSON said the school should treat it the same as if it were full-time students and the school was not capable of accommodating everyone. It was his understanding that under the state constitution and HB 158, the state has no less responsibility to provide educational opportunities for the part-time student, the correspondence student, or the home schooled student than the full- time student. Number 0773 REPRESENTATIVE VEZEY said he is convinced that the nature of education has changed and will never be the same. When he first came to the legislature, distance learning programs were a very attractive prospect, but the technology hadn't quite gotten to where it needed to be, but it's available now. He stated, "I'm really starting to wonder when we now have the transparent school district boundaries, do we really want to increase our micro- management, which I avoid micro-management because I recognize that we can't use micro-management as an excuse to tolerate failure, but with the changes that are occurring, and we're still trying to address the old style education delivery system, are we putting in place any handicaps?" REPRESENTATIVE DYSON agreed with Representative Vezey and said it's a message that needs to be spread. Educational choices and alternatives within and without the public school system are happening and he believed it would drive fundamental changes that will lead to students and parents being more in control. Number 0917 CHAIRMAN BUNDE noted that school districts receive funding for full-time students. He asked Representative Dyson how a school would get compensated for part-time students. For example, if part-time students are being funded at one level as home schoolers and enroll as part-time students, is there a possibility of a double dipping situation. REPRESENTATIVE DYSON said the regulations of the Department of Education have provided for full-time students for a long time and allow a student taking four hours to be considered full-time. He had been talking with Mr. Jeans just that morning, about limiting, if possible, the double dippers which was a minuscule number according the Department of Education. He noted that students enrolled in the Alyeska Correspondence Schools are reimbursed at a 65 percent equivalent. It's possible to have a situation whereby a student is going to school for four hours a day and that school receives the full-time equivalent. That same student is also taking correspondence courses, so now the state is paying 165 percent of the foundation formula for that student. He believed those cases were rare, however. Number 1027 CHAIRMAN BUNDE agreed that it probably wasn't a large amount of money, but the illusions are of concern for parents. He asked if there were any provisions in the legislation that would encourage full-time students to become part-time students. He noted that about 10 percentage of Valdez students are choosing to become part- time students, but the Valdez School District still gets to fund them as full-time students. REPRESENTATIVE DYSON said he had met with the leadership from Valdez last week, and said the legislation passed last year may have impacted the Valdez situation, but he didn't think that bringing the legislation into conformity this year, would have any change at all. CHAIRMAN BUNDE asked Eddy Jeans to testify at this time. Number 1124 EDDY JEANS, Manager, School Finance Section, Education Support Services, Department of Education, testified in opposition to HB 367. It is the department's position that students who attend school on a full-time basis should have preferential treatment over part-time students and that part-time students should be allowed to attend school on a space available basis. CHAIRMAN BUNDE asked Mr. Jeans to explain the reasoning behind the department's position. MR. JEANS stated the department believes it places additional stress on school districts when students are allowed to enroll for a particular class after the structure has already been set up for the year. CHAIRMAN BUNDE asked about the option of districts setting an enrollment deadline to avoid students enrolling for a particular class after the structure has been set up. For example, students planning on being enrolled in the fall semester would need to enroll the previous spring. MR. JEANS said he had learned that school districts around the state enroll students in many different ways and yes, some of the problems could be addressed in the enrollment system. CHAIRMAN BUNDE said he was not aware of a situation whereby a full- time student showing up in mid-semester or the day before school has failed to be accommodated; however, that student may not have a choice of classes. MR. JEANS commented that he was not aware of any student being displaced part way through the school year. One of the department's concerns is there are students enrolled in the public school system full-time who plan out their educational goals. He cited an example of an advanced mathematics class, structured for 20 students; 18 of the students enrolled are seniors and 2 are juniors, full-time students. Based on his understanding of this legislation, if there was a part-time senior who wanted to enroll, one of those juniors could be displaced because they would have the option to take the class the following year. It's the department's position that students have the right to take the class when they're ready to take the class, as they move through the system. Number 1300 REPRESENTATIVE BRICE asked given the vast diversity in enrollment procedures among school districts, would it be feasible to insert language to the effect that a part-time student may not be discriminated against if enrolled by a particular date. REPRESENTATIVE DYSON said it was his view that every school district is appropriately permitted to have spring enrollment for juniors attending school the next fall and they would have priority over any part-time senior coming in to enroll in the fall; it's first come, first served. He said, "I would argue that this is largely an academic problem because the part-time student who has been in correspondence school who comes and tries to make the case that he's got to have this course to graduate, you know. I would guess there's very few of the part-time student correspondence school curriculums, and that he wouldn't have another option. Because whatever program he was under - the state's Alyeska program, or something - would have the option to meet his graduation requirements. All we ask is that they not discriminate against that student simply because he is part-time." Number 1387 CHAIRMAN BUNDE said the committee would begin hearing testimony via teleconference. Number 1418 MELODY DOUGLAS, Director, Business and Finance, Kenai Peninsula School District, read a prepared statement from Patrick Hickey, Assistant Superintendent of Business and Operations: "I would like to speak against this amendment. I believe the argument for modification is inaccurate, the proposed change is improper and the effect on local school districts will result in an invasion of their ability to self govern. "Preferential treatment is not a discriminatory action as described in the proposed amendment. There is no preference made based upon race, creed, sex, disability or national original. The state of Alaska has a history of granting benefits to groups of people based upon their level of participation. New students are charged higher college tuition rates if they have not been full-time residents of the state. Tourists are charged higher fees than residents for fish and game licenses. Not all state residents are entitled for subsistence permits. Although in all these cases, some people receive preferential treatment, none of it is truly discriminatory because each individual has the same opportunity to qualify for the benefit. It is this personal choice which affords some benefits and excludes others. "Addition of the proposed language would actually generate another 'protected class' from which discrimination claims could be leveled against school districts. It is improper to create a 'protected class' for which inclusion is solely at the discretion of the individual. "School districts are charged with providing equal access to education. This is currently being accomplished. Those not choosing equal participation should not demand equal benefit. This bill will create the potential for a few anomalies in the education system: 1) a child can enroll in an out of district correspondence course, choose their own curriculum, and guarantee themselves a place in a highly desired elective course; 2) a student will be guaranteed the right to enroll in courses outside a defined attendance area by claiming 'part-time' status in both areas; and 3) students in private schools will be guaranteed seats in courses not normally available to them. "While I fully support the opportunity for all students to access the educational opportunities of the public school system, I do not support these opportunities at the expense of students fully enrolled in the system. I support the authority of the school board in setting enrollment policies and ask that you reject the amendment." Number 0544 GORDON TERPENING testified in support of HB 367 via teleconference from Homer. He is the parent of a junior at the Homer High School. It was determined last summer the best option for his son was to take some correspondence courses and some classes at the Homer High School. The reason for taking classes at the high school is because facilities are better for some classes such as chemistry, art, shop, Spanish, et cetera. On the other hand, it was thought he would get a better education with the correspondence courses and with the teachers for those classes he needed to graduate. He started working with the school district in July and was shocked when his son was put at the end of the list. In fact, his son was not allowed to the Homer High School for the first five days of school to ensure there was sufficient room in the classes he wanted to attend. CHAIRMAN BUNDE thanked Mr. Terpening for his testimony and asked Kathy Nielson to present her comments. Number 1625 KATHY NIELSON testified via teleconference from Valdez. She referred to the earlier discussion on micro-management and said in her opinion it was important in this situation that policy and law be set by the state level so that districts operate in the best interest of the students. She said HB 367 does just that. It was her belief that districts are using the enrollment policy to circumvent the intent and purpose of HB 158. She said that the availability of charter schools, vouchers, and the other alternative education options, will force the public education system into being more consumer responsive. Number 1762 CHAIRMAN BUNDE thanked Ms. Nielson for her testimony and noted there was no further public testimony. REPRESENTATIVE DYSON commented that while he admired Chairman Bunde's policy of not voting bills out of committee at the first hearing; however, in this case, HB 367 is merely a follow-up on the regulations from last year and requested the committee vote on HB 367 today. CHAIRMAN BUNDE commented he would like to check with the Anchorage School District. REPRESENTATIVE DYSON pointed out the Anchorage School District as well as the Eagle River School District have been the most recalcitrant on this issue. He pointed out there is a significant local contribution in both districts and every student in Anchorage that is not allowed in the public schools means less burden for the existing tax money, although he didn't believe that was a major factor in the district's resistance. The Anchorage School District has 42,000+ students and as of October 1997, there were 90 part- time students, so the impact is small. He is not aware of any rural or small communities that have a problem taking part-time students. CHAIRMAN BUNDE said that HB 367 would be held in committee and heard again at a later date. HB 360 - CIVIL COMMITMENT OF SEXUAL PREDATORS Number 1877 CHAIRMAN BUNDE noted the next item on the agenda was HB 360, "An Act providing for the civil commitment of sexually violent predators." He asked Representative Ryan to present his bill. Number 1894 REPRESENTATIVE JOE RYAN, Alaska State Legislature, sponsor of HB 360, stated, "This bill is offered to afford society the ability or option to confine sexually violent predators. A sexually violent predator is a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. "A mental abnormality is a condition involving a disposition to commit criminal sexual acts of such a degree that it makes the person a menace to others. "A predatory act is an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization." Number 1938 REPRESENTATIVE RYAN said since introducing this legislation, people in the Administration have expressed some valid concerns and there will likely be some large fiscal notes. House Bill 360 is modeled on the Kansas legislation which was upheld by the U.S. Supreme Court. It is his understanding that Kansas has incarcerated 20 people civilly committed and Wisconsin has 200. He noted that HB 360 has been characterized by some people as being too broad, and if it were to be narrowed somewhat, it may be economically feasible. He said, "I bring this bill forward to bring to your attention some of the things involved in this concept, what the cost may be and what the potential to society might be by allowing these people to remain free. I think it's time we had the discussion and I think it's time that we be made aware of what the potentiality is in society and then, of course, it's up to us to decide if we can afford to do this." He has indicated his willingness in conversations with the Administration to narrow the field, if necessary. Number 2026 REPRESENTATIVE GREEN said, "If our system is correct, and we think it's the best there is, even though it may be flawed, that if a person has served the time for whatever the offense may be, and then we would go one step further and incarcerate again because of potential, are we sure we're on firm legal ground? The concern I have is that if -- you're isolating this I realize to a sexual predator as opposed to some other potential criminal -- but I'm wondering if the law will -- if the courts rather than the law -- will allow someone to say we are accepting the fact then that all sexual predators that are so designated here, are beyond correction that we're going to presume that they would offend again and therefore, keep them incarcerated until something else happens. Is there a jeopardy clause here that we would be treading across?" REPRESENTATIVE RYAN responded that in the 5-4 decision of the Supreme Court, the majority of the minority opinions were because the justices didn't feel there was adequate treatment to rehabilitate. Many of the professionals he has conversed with have conveyed that "it's not what these people do, it's what they are" and evidently are incapable of controlling their behavior. He referred to the Wetterling Act and Megan's Law and said there is a pattern of receidivous behavior that gets more and more violent with each occurence until a child is killed. As indicated in the bill, a civil commitment has a number of stages of trial before a jury or judicial panel with all the constitutional protections and all the abilities to release if the panel finds that the person is not incorrigible. He said criminally, this would be difficult to do because it would be addendum to a criminal sentence, but civilly, it could be done because these individuals are a menace to society. The choice is to leave them in society to do what they do and end up being incarcerated, or remove them from society as a precaution to save other people. REPRESENTATIVE GREEN asked if HB 360 includes all sexual predators or pedophiles only. REPRESENTATIVE RYAN said it was all sexual predators because there are people who conduct violent rapes where the victim is killed. Their behavior is such that the rape doesn't seem to satisfy them; they need to go further. Number 2187 REPRESENTATIVE GREEN commented that he had read a lot of material on pedophiles and there seems to be no cure, but he wasn't sure that was the case with all sexual crimes. REPRESENTATIVE RYAN interjected that not every sex offender is predatory behavior. He had made some inquiries to determine if psychological profiles had ever been done on these individuals, and to be best of his knowledge, there is no psychological profile. Number 2216 CHAIRMAN BUNDE said it was his understanding that rape is a crime of violence rather than a sex crime, and that rapists through some kind of treatment may be able to control their propensity for violence. On the other hand, pedophiles will not change which means that under HB 360, it would be a commitment for life because they will never change. REPRESENTATIVE RYAN said if the court or the jury determines that with treatment, that the individual is incapable of being rehabilitated, in effect, the answer is yes. He pointed out that an individual would go through an evaluation process so it doesn't mean that once in the system, the person stays there for life, although it would probably be a minimum of ten years. Also, under HB 360 these individuals could not be kept in a criminal environment; they would have to be placed in an institution that deals strictly with this type of behavior. He didn't see any reason why it couldn't be a particular wing or a portion of a criminal institution dedicated for this type of civil commitment. Number 2287 REPRESENTATIVE BRICE asked if there was a reason for not just extending the criminal penalty. REPRESENTATIVE RYAN replied history shows that people get good time, parole, and a number of other things which are the decision of the parole board, not the legislature. He added that recently the courts have been looking at long sentences as being cruel and unusual punishment. In the Lower 48, the average person convicted of first degree murder serves eight years. TAPE 98-16, SIDE B Number 0001 REPRESENTATIVE RYAN continued that some of these people could not have received a criminal conviction, but they could have exhibited behavior that would make it apparent they had a problem and were a potential danger. REPRESENTATIVE VEZEY asked if someone would define sexual predator. He recalled reading reports which indicated there is very poor success in rehabilitation for pedophiles, but he thought that was true for sexual offenders as well. REPRESENTATIVE RYAN said the definition of a predatory act is, "directed at a stranger or person with whom a relationship has been established or promoted for the primary purpose of victimization." A sexual predator is someone who will say that a six-year-old girl was acting in a lewd and lascivious manner and deserved to be raped. REPRESENTATIVE VEZEY asked if he was correct in that sex offenders in this category show little success at rehabilitation. REPRESENTATIVE RYAN replied that most of them are incorrigible. REPRESENTATIVE VEZEY reflected that it's not just pedophiles, but a sexual offender who goes beyond that; someone who cultivates a victim. REPRESENTATIVE RYAN stated it's people who are incarcerated, who indicate they will commit the crime again when released. CHAIRMAN BUNDE said the committee would begin hearing testimony via teleconference. Number 0096 BLAIR MCCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He reiterated this would be a major shift in criminal justice philosophy. Instead of punishing people for crimes they committed for the first time in Alaska, the state would be incarcerating people based on a prediction that they might commit crimes in the future. He referenced the Kansas v. Hendricks 5 to 4 decision and said there would certainly be a challenge to this law and the Alaska Supreme Court may find the dissenting opinions in Hendricks more persuasive. Number 0146 MR. MCCUNE said there is a premise in HB 360 that a small, but extremely dangerous group of sexually violent predators that are likely to commit sex offenses on strangers or targeted victims. He said, "This might be true but I think what we're looking at is the sciences of psychology and psychiatry and whether they have sufficient knowledge or expertise to identify who belongs to this group and who doesn't." His interpretation of a recent task force report by the American Psychiatric Association is the association is unwilling and by their own admission, unable to make predictions called for in HB 360. MR. MCCUNE said Representative Ryan had addressed the broadness of the Kansas legislation, which HB 360 is modeled after and from his perspective, it is broad. He said that a review of the statutes indicates that a sexually violent offense could even include someone who'd had an attempt to have sexual contact with another person and a sexually violent predator could also be someone who'd been charged but not convicted of a sexually violent crime. Number 0190 MR. MCCUNE recalled a provision in HB 360 for the Office of Public Advocacy to represent people accused of being sexually violent predators (indisc.) civil commitment. He suggested it would probably be more efficient if the Public Defender Agency represented these individuals rather than the Office of Public Advocacy. For that reason, the Public Defender Agency had not yet submitted a fiscal note. Number 0241 JOY ALBIN, Representative, Fairbanks Alliance, testified via teleconference from Fairbanks. She said the Fairbanks Alliance has about 600+ members statewide and represents people with various brain disorders. She pointed out the mentally ill patients are absolutely the most vulnerable population; many of them are suffering from disorders due to sexual assault and abuse as children. She asked if committee members wouldn't be concerned if their son or daughter was in a facility like the Alaska Psychiatric Institute (API), close to sexually violent predators. With the downsizing of API, she was concerned not only for the safety of the mentally ill patients, but the general hospital as well because of additional security problems and probably separate staffing. She noted there are many sexual predators in Alaska; there's a disproportionate number for our state. She said it may be worth considering sending these individuals to a facility in the Lower 48 that specialize in treatment of sexually violent predators. Number 0353 BETH LACROSSE, Secretary, NAMI Alaska, testified from Ketchikan that NAMI Alaska was formerly known as the Alliance for the Mentally Ill, and she is a mental health consumer. She recognized there is a legitimate concern in protecting the general public from sexually violent predators; however, there is no evidence, scientific or otherwise, to support that pedophilia and other sexual disorders are in fact mental illnesses. To indicate that sexual violent predators are mentally ill further increases the stigma of mental illnesses. Mental illnesses are biological brain disorders that are successfully treatable 60 percent to 80 percent of the time. By far, the vast majority of mentally ill people are not violent and putting sexually violent predators in the same facility as the mentally ill may result in a serious safety problem. Additionally, NAMI Alaska believes that the detention of sexually violent predators is a public safety issue and should be addressed with public safety funds, not mental health monies. NAMI Alaska supports the formation of an independent panel of experts to review current research and recommend possibly a pilot project for a sex offense reduction plan. She expressed concern with page 5, lines 24 - 29, and said the only secure public mental health facility is API and it's being downsized. She reiterated her concerns about sexually violent predators being housed in the same facility as the vulnerable mentally ill. She requested the committee to amend HB 360 by eliminating language that commits sexually violent predators to a secured mental health facility, but rather to a hospital, correctional facility or institution. CHAIRMAN BUNDE asked Suzanne Mannikko to present her comments next. Number 0478 SUZANNE MANNIKKO, Representative, We Against Sexual Predators (WASP), testified via teleconference, requested the legislature to adopt legislation that would put second time sex offenders in prison permanently. First time sex offenders should serve a full sentence without parole and a second time sex offender should serve a life sentence. Number 0543 BRANT MCGEE, Public Advocate, Office of Public Advocacy, Department of Administration, testified from Anchorage. He said he was empathetic with the Representation Ryan's motivation for bringing this legislation forward. He's married with a 3 1/2-year-old son and is acutely aware of the threat represented by people who are described in this legislation because his agency represents abused and neglected children, which a large percentage have been sexually abused. MR. MCGEE agrees with Representative Ryan in that HB 360 may be too broad. More particularly, he thought Mr. McCune made an excellent point in his citation of the American Psychiatric Association task force in that these professionals state quite clearly they are unable to predict future behavior in certain areas. Number 0607 MR. MCGEE brought up the political factor involved; not partisan politics but the sheer political factor that decision makers are going to have in the back of their mind when making decisions. For example, decision makers like the prosecutor who will have to make a determination when a person is completing their sentence as to whether or not to file a petition under this bill; decisions that a jury would have to make in determining whether to let someone out into the community; decisions that a judge would make in the annual reviews called for in HB 360 and lastly, the decisions made by a psychiatrist. He said not a single one of these people will be anxious to take the responsibility of setting someone free if there's a doubt about that person's ability to function in society without committing further violent predatory acts. In other words, the system is going to be very strongly weighted against letting anyone go free. That means that once in, it's going to be very difficult for any person to ever come out. MR. MCGEE said he didn't understand why his agency was identified as the agency responsible for the provision of legal counsel to persons against whom petitions are filed. He commented that it probably is not the best idea. The Public Defender Agency will provide representation to the great majority of these people in the underlying criminal offense and would be in the best position to continue the representation of that person. Second, the Office of Public Advocacy would have to farm most of the cases out based on conflict, because so many of the victims will have been children that his agency represented in the context of a child in need of aid and criminal proceedings as victim witnesses. So, whenever the private sector takes up appointments, as he has discovered over the last 13 years, it becomes a far more expensive proposition than the provision of staff services through the Public Defender Agency. He encouraged the committee to look at that particular provision. CHAIRMAN BUNDE thanked Mr. McGee for his comments and asked Al Aaron to present his testimony from Fairbanks. Number 0727 AL AARON testified via teleconference from Fairbanks, agreeing with all the objections that had been previously presented. In his view, confining a person to a segregated part of a facility would be like confining a group of pedophiles to a segregated part of a children's hospital. CHAIRMAN BUNDE next asked Lois Campbell from Ketchikan to testify. Number 0758 LOIS CAMPBELL, Representative, NAMI Alaska, testified via teleconference from Ketchikan. She said that NAMI Alaska works in the field of sexual assault, domestic violence and mental health and her primary concern is with the downsizing of API and the potential risk for individuals with brain disorders being exposed to violent sexual predators. She agreed with the intent of the legislation but urged the committee to consider an amendment so that mental health patients are not at risk. CHAIRMAN BUNDE thanked Ms. Campbell for her comments and asked Jeanette Grasto to present her testimony. Number 0817 JEANETTE GRASTO, State President, NAMI Alaska, testified via teleconference from Fairbanks, referred to Representative Ryan's sponsor statement; specifically, "A mental abnormality is a condition involving a disposition to commit criminal sexual acts of such a degree that it makes the person a menace to others." She stressed that is not what mental illness is about. Mental illness is a biological brain disorder such as schizophrenia, manic depression, obsessive/compulsive disorder, major depression and panic disorder and people with these illnesses are less violent than the population as a whole. Individuals who have a disposition to commit criminal sexual acts do not belong anywhere near a possible victim, including individuals confined to API. She also noted that classifying sexual predators as mentally ill increases the stigma against mental illness and creates more of a problem for people living with a mental illness. She agreed with earlier testimony that this is a public safety problem not a mental health problem and public safety money should be used, not mental health funds. Number 0905 CHAIRMAN BUNDE announced that concluded the teleconference testimony and the committee would now hear testimony from individuals in Juneau. REPRESENTATIVE RYAN wished to clear up a misconception on the part of individuals who had previously testified. He said HB 360 speaks to a facility operated by the Department of Corrections on the grounds of a correctional facilities; not API or a normal mental health facility. He directed the committee's attention to page 5, beginning at line 27, and said, "They can't be committed to a correctional facility or an institution operated by the Department of Corrections. They do not keep them from being committed in a mental health facility operated by the department and located within or on the grounds of a correctional facility. And if they are in there, they call it a mental health facility within or on the grounds they shall be segregated at all times from inmates of the correctional facility." In other words, the place of confinement would have to be a special place just for these individuals. CHAIRMAN BUNDE went back to teleconference and asked Don Gray to testify at this time. Number 0996 DON GRAY, Member, Mental Health Board, testifying from Fairbanks agreed with Ms. Grasto's remarks in terms of this being a public safety issue rather than a mental health issue. He referred to Representative Ryan's previous quote, and said the Fourth Avenue Jail in Anchorage has a unit specifically established for inmates in need of mental health services. He noted that resources are indeed scarce and in his opinion using mental health resources for a criminal justice/public safety problem was not appropriate. Number 1080 WALTER MAJOROS, Executive Director, Alaska Mental Health Board, testified that he is a former director of a treatment agency for sexual offenders and a former Department of Corrections director in the rehabilitation services for offenders, including sex offenders. He commended Representative Ryan and the legislature for their concern with protecting the public from sexually violent predators and for treating sexual abuse as a very serious issue. He said unfortunately, he was speaking in opposition to HB 360 as currently drafted since it does have potentially a very severe impact on people with mental illnesses and the public mental health system. Number 1224 MR. MAJOROS said the first point of the Alaska Mental Health Board is that public safety concerns, including sexually violent predators, are more appropriately addressed in the criminal justice system and not the civil system. The civil system is set up to serve people with mental illnesses that are brain disorders. Sexually violent predators have essentially antisocial behavioral disorders which require a very different form of treatment. The criminal system on the other hand, is set up for long-term confinement of individuals who are likely to commit violent acts. The civil system addresses much more short-term treatment needs for those with mental illnesses. Within the criminal justice system there are several mechanisms that are available to address the dangerousness of sex offenders which include sentencing laws, good time provisions, victim notification, rigorous prosecution, sex offender registration, parole, probation, intensive supervision under probation and parole, et cetera. He noted that several of those issues are before the legislature this year. Number 1163 MR. MAJOROS continued with the second main point of the Alaska Mental Health Board is that if this legislation is pursued in terms of having sexual violent predators in the civil system, that significant safeguards are needed that are not included in the current draft of HB 360. First and foremost, the definition of the population needs to be much more narrowly crafted to apply only to the most dangerous, violent sexual predators who pose significant public safety risk. It's also very important there be separate facilities and programs. His reading of the legislation is that there needs to be segregation but it does not require separate physical facilities. In his opinion, separate physical facilities are absolutely essential for four reasons: 1) to ensure the safety of mentally ill persons and to address the security needs which are much higher for sexual predators; 2) to be able to maintain the mission and the integrity of the public mental health system so the ability to serve mentally ill individuals is not undermined; 3) because the program approaches and philosophies are totally different, the differences between a mentally ill individual and a criminal offender need to be recognized; and 4) there needs to be separate funding so that resources are not diverted away from treating mental illnesses and since this is a criminal justice and public safety issue, the funding should come from that source. Number 1300 CHAIRMAN BUNDE asked if he was correct in saying there actually is a brain disorder in pedophiles. MR. MAJOROS replied that most of the research he has seen treats this more as what is referred to as a "personality disorder" and many sex offenders have antisocial personalities. It's more of a behavior disorder than a mental illness. Mental illnesses have more to do with brain chemistry and are considered brain disorders whereas most sex offenders' diagnosis would fall under personality disorders and behavior disorders and the two require different approaches. CHAIRMAN BUNDE asked Karl Brimner, Cindy Cooper and Bruce Richards to come forward to present their testimony. Number 1348 CYNTHIA COOPER, Deputy Attorney General, Criminal Division, Office of the Attorney General, Department of Law, said the Departments of Law, Corrections and Health & Social Services were all involved in HB 360, so she, Mr. Brimner and Mr. Richards would make a joint presentation. The Department of Corrections would identify sexually violent predators for referral to the Department of Law, who would initiate and conduct the civil commitment proceedings and the individuals ultimately committed would end up under the control of the Department of Health & Social Services. Number 1436 MS. COOPER said that Mr. Richards will discuss how people currently in the correctional system have been identified as potential civil committees. Mr. Brimner will address some of the mental health issues and she would be addressing some of the legal and constitutional concerns with HB 360 as currently drafted. She began her overview that society has been trying to figure out a way to deal with sexual predators for a number of years. Beginning in the 1920s, a number of states started enacting sexual predator laws which at that time were referred to as sexual psychopathy. By the late 1960s, about half of the states had some sort of statute dealing with these individuals. Over the course of the next 30 years though, many of the states repealed those statutes for one reason or another. Now, there's an increase in the number of states adopting statutes. MS. COOPER said there are basically three models. One is the sexual psychopathy model where society chooses between the criminal justice prison mode or the civil commitment route. It's basically one or the other for someone who has committed a sexual offense. Illinois is the prime example of this model. The second model, followed by New Jersey, which is broad in the definition of civil commitment and a modification of definitions to include sexual predators within their current civil commitment procedure. The third model, followed by Arizona, California, Kansas, Washington and Wisconsin, is the post release commitment. She said HB 360 is basically the post release model because it includes not only individuals actually convicted of a crime or those at the end of their criminal sentence, but also individuals who are found incompetent to stand trial after committing a sexual offense, or individuals found not guilty by reason of insanity. She asked Mr. Richards to explain how the Department of Corrections has identified people who would be covered by HB 360. Number 1599 BRUCE RICHARDS, Program Coordinator, Department of Corrections, pointed out that in an earlier hearing on the sex offender registration bill, Representative Ryan had made mention of possibly amending HB 360 to include a civil commitment amendment. It was clear this was going to be an issue in the upcoming legislature, so in December the Department of Corrections had their mental health experts go through the incarcerated population identifying the sex offenders who were to be released within the next 12 months. These mental health experts, using risk assessment tools, interviews, and other means available, identified individuals who they believed would be defined as a sexually violent predator. He further said, "Upon completion of the testing, and basically making some assumptions on previous civil commitments for guilty, but not or -- based on their experiences with not guilty by reason of insanity, which there is little, but they came up with the numbers of inmates that would possibly be committed on the low end of 20-25 up to 30 individuals per year. And as previously mentioned, these people are probably not going to get out any time soon, so in a few years you've racheted that number up pretty fast and in five years, there could be a pretty significant number of people." MR. RICHARDS clarified that under the provisions of HB 360, these individuals cannot be housed in a correctional facility or a facility operated by the Department of Corrections. His interpretation is that a mental health facility could be operated inside or on the grounds of a correctional facility; it could be a wing attached to an existing facility or a stand alone inside the perimeter fence. The Department of Corrections could probably provide some security services, but it's pretty clear that it can't be operated by the Department of Corrections. MR. RICHARDS added that the center for effective sex offender treatment, a subgroup of the Center of Effective Policy, has offered assistance to the Department of Corrections on this issue, and possibly the national expertise of the FBI on profiles, et cetera. CHAIRMAN BUNDE noted that Representative Ryan had indicated a willingness and interest to work with the various departments. Number 1861 KARL BRIMNER, Director, Division of Mental Health & Development Disabilities, Department of Health & Social Services, said many of the comments he was going to make have been heard in previous testimony, but the Department of Health & Social Services is concerned about the public safety in terms of the release of some of the individuals being discussed. Also, it's obvious that any program offered to these individuals would need to be in a secure facility but the cost involved in a stand alone facility or some kind of a new wing on an existing facility would probably be substantial. Previous testimony has indicated these individuals are not mentally ill and he believed that was an important distinction to be aware of. The prognosis is very poor which means either there's not an effective (indisc.-paper shuffling) in dealing with these individuals and it also means that any treatment given will be long-term; the department estimates ten years or more. Number 1955 MS. COOPER said the department has two concerns about the over- inclusiveness of HB 360: One is the fiscal impact; i.e., a long- term commitment for 20-40 people a year would add up very quickly. She said for that reason we don't want to be over-inclusive in the sense of housing people, because it's very costly. Secondly, is the legal issues. As Representative Ryan noted, the United States Supreme Court upheld the Kansas statute by a very narrow margin. The fact that the United States Supreme Court has upheld a statute as constitutional, does not mean it will pass constitutional muster under the Alaska constitutional provisions. There are a number of cases where the Alaska Supreme Court has construed the Alaska constitutional provisions more broadly; even those that are identically worded to the federal constitution. Most recently, the Alaska Supreme Court declared the reciprocal discovery provision in criminal proceedings unconstitutional under the privilege against self-incrimination under the Alaska Constitution, that had been upheld a number of years ago under the federal constitution. Her concerns are not necessarily based on what the U.S. Supreme Court will hold, but more with what the Alaska Supreme Court will hold. The Alaska Supreme Court often relies on the reasoning of the dissenting opinions. Number 2096 MS. COOPER said the particular challenges that she sees are a due process challenge; basically, does it encompass too many people and infringe on too many people's due process and liberty interests by committing too many individuals for too long of a period of time. A second issue involved ex post facto challenges; that is, this law would apply to people who have already committed their criminal offense, have been sentenced, have been found not guilty for reason of insanity, incompetent, or whatever, and the question is, is this punishment or is it really civil commitment. The third issue is if treatment isn't provided and whether that will withstand constitutional scrutiny under the state Supreme Court decisions. Number 2192 REPRESENTATIVE BRICE asked what leeway does the legislature have in establishing longer terms for second and third offenses. MS. COOPER said to a certain extent, the legislature has done that. For example, a few years ago, the legislature passed a statute requiring some consecutive time for sexual abuse of a minor cases in which there are different victims or different counts and there has been an increase in the sentences imposed. TAPE 98-17, SIDE A Number 0005 MS. COOPER referred to the three strikes legislation and said there has been only one individual who qualified under the three strikes legislation. She was aware that other states had looked at civil commitment because there is no way to increase the sentences of persons already convicted and sentenced. Number 0097 REPRESENTATIVE GREEN referred to page 6, line 8, and asked what would be revealed in an examination that wouldn't be observed and evident in the day-to-day activity of a person. Also, would this examination be conducted by professional staff from within or an outside independent expert and what are the related costs anticipated to be. MR. BRIMNER responded, "As to whether it would be in-house or out of the program, I don't remember reading the bill in terms of what that said there, but I think that when you're providing treatment to a population, just to use a comparison, it's more costly than housing them in a correctional facility. So first of all, you have greater costs there - talking about psychiatric services and so forth. I think the purpose of the annual review is to make a determination whether or not that person should be released at that point in time. Different states, it's my understanding, have done it in a couple different ways. Some of them do it every two years and this particular bill suggests annually." Number 0295 REPRESENTATIVE GREEN said HB 360 speaks to an examination to determine the current mental health condition of the person as opposed to reviewing the individual's past history. He asked if the annual examination is really a review of the past record or does it involve some type of psychiatric testing. MR. BRIMNER said it was his understanding that it is a review to see if any progress has been made in terms of treatment over the past year and if there has, then some kind of decision with regard to release might be made. The determination would be made in a variety of ways; some of it would be based on a comparison to past record, the behavior of that individual, any changes that occurred, demonstration of any kind of remorse, as well as other factors. REPRESENTATIVE GREEN said in his mind, that would be more of a review than an examination. MR. BRIMNER concurred that it would be more akin to a review. CHAIRMAN BUNDE noted the sponsor and the departments would be working together to address some of the issues in HB 360. ADJOURNMENT Number 0334 CHAIRMAN BUNDE adjourned the House Health, Education and Social Services Standing Committee at 4:45 p.m.

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