02/27/1998 03:08 PM House HES
| Audio | Topic |
|---|
+ 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
* SPONSOR SUBSTITUTE FOR HOUSE CONCURRENT RESOLUTION NO. 25
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
predators."
- 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)
01/20/98 2088 (H) HES
02/04/98 2217 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
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 367
SHORT TITLE: PART-TIME PUBLIC SCHOOL STUDENT ENROLLMENT
SPONSOR(S): REPRESENTATIVES(S) DYSON
Jrn-Date Jrn-Page Action
01/28/98 2155 (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) READ THE FIRST TIME - REFERRAL(S)
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.
| Document Name | Date/Time | Subjects |
|---|