Legislature(1995 - 1996)
03/08/1995 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 8, 1995
1:15 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
COMMITTEE CALENDAR
HB 13: "An Act requiring persons authorized to make or incur
political campaign expenditures before filing for
nomination to office and groups acting on behalf of them
to file certain election campaign finance disclosure
reports."
PASSED OUT OF COMMITTEE
HB 15: "An Act authorizing disclosure from court records of the
name, address, and picture of, and other information
about, certain minors for whom a delinquency petition is
filed."
HEARD AND HELD
HB 38: "An Act relating to criminal sentencing; relating to the
availability for good time credit for offenders
convicted of certain first degree murders; relating to
mandatory life imprisonment, parole, good time credit,
pardon, commutation of sentence, modification or
reduction of sentence, reprieve, furlough, and service
of sentence at a correctional restitution center for
offenders with at least three serious felony
convictions; and amending Alaska Rule of Criminal
Procedure 35."
HEARD AND HELD
* HJR 1: Proposing an amendment to the Constitution of the State
of Alaska relating to repeal of regulations by the
legislature.
HEARD AND HELD
(* First public hearing)
WITNESS REGISTER
JEFF LOGAN, Legislative Assistant
Representative Joe Green
State Capitol, Room 24
Juneau, AK 99801-1182
Telephone: (907) 465-4931
POSITION STATEMENT: Testified in favor of CSHB 13.
BROOKE MILES, Juneau Branch Administrator
Alaska Public Offices Commission
Department of Administration
P.O. Box 110222
Juneau, AK 99811-0222
Telephone: (907) 465-4865
POSITION STATEMENT: Testified in favor of CSHB 13.
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
State Capitol, Room 421
Juneau, AK 99801-1182
Telephone: (907) 465-4797
POSITION STATEMENT: Sponsor of HB 15
MARTHA HOLMBERG, Social Services Program Officer
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, AK 99811-0630
Telephone: (907) 465-3023
POSITION STATEMENT: Provided information on HB 15
CHRIS CHRISTENSEN, General Counsel
Alaska Court System
303 K Street
Anchorage, AK 99501
Telephone: (907) 264-8228
POSITION STATEMENT: Provided information on HB 15
LAURIE OTTO, Deputy Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided information on HB 38
JERRY LUCKHAUPT, Legal Counsel
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, AK 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Provided information on HB 38
RANDALL BURNS, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, AK 99520
Telephone: (907) 276-2258
POSITION STATEMENT: Testified against HB 38
BARBARA BRINK, Deputy Director
Alaska Court System, Public Defender Agency
900 West Fifth, Suite 200
Anchorage, AK 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified against HB 38
PREVIOUS ACTION
BILL: HB 13
SHORT TITLE: CAMPAIGN DISCLOSURE REPORTS
SPONSOR(S): REPRESENTATIVE(S) GREEN,Bunde
JRN-DATE JRN-PG ACTION
01/06/95 23 (H) PREFILE RELEASED
01/16/95 23 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 24 (H) STA, JUD, FIN
01/19/95 88 (H) COSPONSOR(S): BUNDE
02/07/95 (H) STA AT 08:00 AM CAPITOL 102
02/07/95 (H) MINUTE(STA)
02/08/95 263 (H) STA RPT CS(STA) 7DP
02/08/95 264 (H) DP: JAMES, PORTER, GREEN, IVAN
02/08/95 264 (H) DP: ROBINSON, WILLIS, OGAN
02/08/95 264 (H) FISCAL NOTE (ADM)
03/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 15
SHORT TITLE: PUBLIC DISCLOSURE OF MINORS COURT RECORDS
SPONSOR(S): REPRESENTATIVE(S) THERRIAULT,Rokeberg,Bunde,Toohey
JRN-DATE JRN-PG ACTION
01/06/95 24 (H) PREFILE RELEASED
01/16/95 24 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 24 (H) HES, JUD, FIN
01/19/95 88 (H) COSPONSOR(S): BUNDE
01/27/95 161 (H) COSPONSOR(S): TOOHEY
02/07/95 (H) HES AT 03:00 PM CAPITOL 106
02/07/95 (H) MINUTE(HES)
02/08/95 264 (H) HES RPT 2DP 1DNP 3NR
02/08/95 264 (H) DP: BUNDE, TOOHEY
02/08/95 264 (H) DNP: ROBINSON
02/08/95 264 (H) NR: ROKEBERG, G.DAVIS, BRICE
02/08/95 264 (H) 8 FISCAL NOTES (DHSS)
02/08/95 264 (H) ZERO FISCAL NOTE (LAW)
02/08/95 264 (H) REFERRED TO JUDICIARY
02/23/95 (H) MINUTE(HES)
02/23/95 (H) MINUTE(HES)
03/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 38
SHORT TITLE: SENTENCING;3RD SERIOUS FELONY OFFENDER
SPONSOR(S): REPRESENTATIVE(S) BUNDE,Toohey
JRN-DATE JRN-PG ACTION
01/06/95 30 (H) PREFILE RELEASED
01/16/95 30 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 30 (H) STA, JUD, FIN
01/20/95 105 (H) COSPONSOR(S): TOOHEY
02/09/95 (H) STA AT 08:00 AM CAPITOL 102
02/09/95 (H) MINUTE(STA)
02/10/95 295 (H) STA RPT 4DP 3NR
02/10/95 295 (H) DP: JAMES, PORTER, GREEN, OGAN
02/10/95 295 (H) NR: ROBINSON, IVAN, WILLIS
02/10/95 295 (H) FISCAL NOTE (CORR)
03/08/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 1
SHORT TITLE: REPEAL OF REGULATIONS BY LEGISLATURE
SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Rokeberg,Brice,Green
JRN-DATE JRN-PG ACTION
01/06/95 16 (H) PREFILE RELEASED
01/16/95 16 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 16 (H) STATE AFFAIRS, JUDICIARY
01/18/95 73 (H) COSPONSOR(S): GREEN
02/07/95 (H) MINUTE(ARR)
02/14/95 (H) STA AT 08:00 AM CAPITOL 519
02/14/95 (H) MINUTE(STA)
02/23/95 (H) STA AT 08:00 AM CAPITOL 102
02/23/95 (H) MINUTE(STA)
02/28/95 (H) STA AT 08:00 AM CAPITOL 102
02/28/95 (H) MINUTE(STA)
03/01/95 519 (H) STA RPT 3DP 2NR
03/01/95 519 (H) DP: JAMES, PORTER, GREEN
03/01/95 519 (H) NR: ROBINSON, WILLIS
03/01/95 520 (H) FISCAL NOTE (GOV)
03/01/95 520 (H) ZERO FISCAL NOTE (LAW)
03/01/95 546 (H) FINANCE REFERRAL ADDED
03/08/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-26, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:15
p.m. on Wednesday, March 8, 1995. All members were present.
CHAIRMAN BRIAN PORTER stated that the following bills would be
heard: CSHB 13, HB 15, HB 38 and HJR 1. He announced that CSHB
13 would be heard first. The meeting was teleconferenced to
Anchorage.
HJUD - 03/08/95
CSHB 13 - CAMPAIGN DISCLOSURE REPORTS
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
introduced HB 13. Sponsor Statement:
"HB 13 makes it easier for the public to know who is contributing
money to non-party candidates for statewide office.
"Problem: Currently, non-party candidates for legislative office
who gain access to the general election ballot by going through the
petition or write-in process are not required to file campaign
finance disclosure reports during the primary election cycle.
Alaska Public Office Commission Policy Decision 15.13-82-2 sets
requirements for these candidates.
"The Commission has ruled that non-party candidates, groups formed
to influence the outcome of ballot issues not appearing on the
primary ballot, and political party subdivisions and multi-
candidate PAC's which do not make expenditures to benefit a
candidate on the primary ballot "...need not file either Primary or
General Election reports so long as their only activity during
those reporting periods is the receipt of contributions or the
expenditures of funds for administrative purposes.
"When a campaign-related expenditure is made, the reporting cycle
is triggered. Until that time, the public has no idea who is
contributing money to non-party candidates.
"Solution: HB 13 requires prospective non-party candidates for
legislative offices to disclose to the public, during the primary
election reporting cycle, who is making campaign contributions to
them."
Number 240
BROOKE MILES, Juneau Branch Administrator, Alaska Public Offices
Commission, Department of Administration, explained why there was
a positive fiscal note, originally. The existing language in the
draft required all individuals who had a letter of intent on file,
including people who were going to run for municipal office, to
file reports during the primary cycle. Instead of an estimated 20
additional reports, this would generate something like an
additional 300 reports. There is a zero fiscal note on the State
Affairs committee substitute, however. The Alaska Public Offices
Commission supports this legislation.
REPRESENTATIVE CON BUNDE made a motion to move CSHB 13 (STA) with
individual recommendations and the zero fiscal note.
REPRESENTATIVE AL VEZEY objected. There was a discussion on
existing requirements for filing by nominating petition and by
general election ballot. Representative Vezey then removed his
objection.
After no further discussion or objection, the bill moved.
HJUD - 03/08/95
HB 15 - PUBLIC DISCLOSURE OF MINORS COURT RECORDS
Number 400
REPRESENTATIVE GENE THERRIAULT, bill sponsor, introduced HB 15.
Sponsor Statement:
"This legislation is intended as an intermediate step in the
juvenile justice system that goes beyond the degree of punishment
currently possible, but stops short of prosecution as an adult. It
would allow the State, under certain strict circumstances, to
release the names of juvenile offenders.
"With varying degrees of exceptions, most states require a court
order to release the names of juvenile offenders. Recently,
however the trend has been toward cracking that confidentiality.
In 1993, according to the National Conference of State
Legislatures, Kansas approved a law that allows officials to
publicize the names of juveniles over the age of 13 who are
convicted of certain violent crimes. In 1990, Rhode Island opened
the records of juveniles who are over 15. In May 1994, Illinois
legislators overwhelmingly approved a measure to make public the
names of juveniles convicted of crimes involving guns, gangs or
felony drug violations.
"In Alaska, prior to 1994, the law contained a little-used
provision that allowed publication of the name of a minor who
committed two offenses classified as felonies. Last year, Senate
Bill 54 replaced that provision with one that prohibits disclosure
of the name or picture of a minor under the jurisdiction of the
court in connection with the minor's status as a delinquent child
unless authorized by order of the court. House Bill 15 would again
allow the State to disclose the name, address and picture of a
minor following a second felony offense unless the court entered an
order barring disclosure "for good cause shown in individual
cases."
"The current shield of anonymity and lack of serious penalties
foster the perception among many young adults entering the justice
system that they can get away with anything. This reinforces
criminal behavior that continues into adulthood, where the
consequences are far more serious.
"Tight confidentiality laws have been near the center of America's
juvenile justice philosophy for decades. However, society has
changed since juvenile justice systems were created around the turn
of the century, and it is time for law enforcement to change as
well. This small step toward lifting the privileged status of a
juvenile, when that juvenile has willingly and repeatedly broken
the law, is a reasonable step in that direction."
REPRESENTATIVE THERRIAULT agreed wholeheartedly with a comment
Governor Knowles made in his "State of the State Address." In
talking about his crime package, he said, with regard to the
crackdown on youth violence, "We have lost from the 'Leave it to
Beaver' era, for thugs from the 'Terminator' age." We must give
police and prosecutors the tools to attack gangs and youth violence
and to increase parental accountability. That is part of what this
bill does. What they are basically trying to do with HB 15, is
return a section of statutes that was deleted when SB 54 was passed
last year. He actually took place in the deliberation of that last
year, but the way the bill was drafted, the existing language was
deleted and replaced by a whole new section. Rather than having
existing language in the bill bracketed, to show what was going
out, it was just nullifying these sections, and a number of the
members did not, at that time, quite understand what the impact
would be. What we want to do is basically replace that. The
confusion stemmed from the fact that it was unclear whether it was
an agency that controlled the release of the information or the
Court System. What SB 54 did, was break that into two separate
sections. Now you have the agency records, with its rules, and you
have the Court record, with its rules. Specifically with the court
records, we are attempting to return to the allowance for
information being released for second felony offenses, unless the
court specifically finds just cause not to release the information
on a particular case. The reason for putting it into the court
section is that there are confidentiality requirements in the 1972
Social Security Act that limit the release of information from the
state agency files. To try and get around that, he asked that it
be specifically over on the court side.
REPRESENTATIVE THERRIAULT added that a number of fiscal notes
indicate that passage of this legislation may jeopardize up to
$6,000,000 in federal funds. He felt these fiscal notes to be in
error, and was hoping to have a legal memo from Washington D.C.
today that would have clarified that. What we have found out is
that there is a difference of opinion between Region 10 of the
federal health and social service agencies and other regions of the
nation. We have asked for clarification. If in fact, this would
jeopardize those funds, there are a number of other states who have
already jeopardized their funds and would be on the verge of losing
those federal funds. But that is not so. Colorado law calls for
exactly what we are asking for in HB 15. There has been no loss of
federal funds. Kansas and Illinois laws are very specific about
making information available, and none of these states indicated
that there has been any loss of federal funds.
REPRESENTATIVE THERRIAULT continued, saying that the new law we
enacted last year said that the name or picture of a minor under
the jurisdiction of the court may not be made public in connection
with the minor's status as a delinquent child or adult in need of
aid, unless authorized by the courts. It is my understanding that
the argument about the potential loss of federal funds is based on
release of any information, although our current statute which we
just passed says that the courts can make a finding and can release
that information.
REPRESENTATIVE THERRIAULT was given a memo at this point in the
meeting, clarifying what they were discussing. The memo was
addressed to Richard McConnell, Branch Chief of Region X,
Administration for Children and Families, Seattle. It was from
Carol Williams, at the Associate Commissioner's Office of the
Administration on Children, Youth and Families in Washington D.C.
Number 540
CHAIRMAN BRIAN PORTER clarified that we cannot release information
that is in their file, but if somehow, totally independently,
another file were started, that would be up to us whether or not we
wanted to release it, under state law.
REPRESENTATIVE THERRIAULT stated that was his interpretation too.
In addition, the court system just put out a new fiscal note, with
regards to the number of records that would be impacted. Page 2 of
the fiscal note shows that in fiscal year 94, petitions were
submitted to the courts from 65 juveniles whose records would be
subject to disclosure. There is some question about the fiscal
impact with regards to the number of records that would be affected
by the passage of HB 15.
Number 560
MARTHA HOLMBERG, Social Services Program Officer, Division of
Family and Youth Services, Department of Health and Social
Services, said she had not had the opportunity to read what had
just been distributed, but she understood that any information
given by their division to the court, binds everyone who receives
it to confidentiality, so the receiver cannot release the
information.
CHAIRMAN PORTER mentioned that the criminal records we are talking
about releasing, are not tied to the programs that they are saying
require confidentiality about those program records. He did not
think there was anything in this bill that would indicate a desire
to release those.
MS. HOLMBERG stated she felt the bill would still impact their
federal receipts, because it is not clear that the information
would be brought to the public through any vehicle other than the
Division of Family and Youth Services. She thought the Department
of Law should be the distributor of the information.
CHAIRMAN PORTER asked her to read the letter from the
Administration for Children and Families, Washington D.C., to see
if that would help clear it up for her.
CHRIS CHRISTENSEN, General Counsel, Judicial Branch, Alaska Court
System, reminded committee members, as a matter of policy, the
Supreme Court takes no position on legislation, other than
legislation which directly affects the internal operation of the
Judicial Branch. He said he would give the committee an idea of
how much it would cost the Court System, and also make some
technical suggestions, but would take no position. He first
described some basic problems that exist with the court system's
juvenile records as they relate to this piece of legislation.
MR. CHRISTENSEN explained that first of all, the members need to
understand the limitations of the court's records. Our records are
not computerized, they are purely paper files. Even the indexes
are not computerized, so any information requires a clerk to do a
manual index review, and then a manual file review to see what is
in the file. Some of these files are quite thick, even on young
kids. There is no statewide record suppository, or statewide
index. There are 15 Superior Court locations which do juvenile
cases, which means if you want to know something about a particular
kid's record, you have to contact all 15 courts, because the court
in Anchorage might not have any idea that the kid who had
previously lived in Fairbanks had a record there. Alternatively,
you could contact one court, and that court could contact the other
14 courts. According to statistics provided by DFYS, in FY 94
there were only about 65 juveniles whose records would be subject
to disclosure by HB 15. That does not sound like many files. The
problem is, we have a juvenile population, ages 9 through 18, of
about 75,000 kids; and there are scores of thousands of young
adults who are only a few years out of that age range. Now this is
actually the potential group about whom records requests can be
made by the public. Statewide, the courts receive about 3,500
written requests per year for an adult's criminal record. We only
will accept a written request if the person is out of state or
lives in a community other than where the courthouse is located.
Far more individuals and businesses perform criminal records
research in person. In Anchorage alone, for example, roughly 75
people a day come in and look through our index, and then ask to
see criminal files. They ask to look for a total of about 500
criminal files per day. If you multiply that times 260 official
state work days, that is a lot of file requests. With adults, the
only work the court clerk has to do is run back to the archives and
retrieve it for the requester. With juvenile records, the clerk
would have to look through the index, because most of the names in
the index are confidential. The clerk would have to go get the
file, and look through it to see what was in it. Understand that
our counter clerks are range eight's, and a range eight clerk is
not going to be qualified to actually look through a file and
determine what is in it. That will have to be handed off to one of
the range 12 legal technicians, of which we do not have too many.
At that point, the person is going to have to start calling the
other 14 courts to determine if there was a first felony conviction
someplace else. This is something that is going to take very long,
is very complex, and will have to be done many times, even though
there are only going to be 65 kids a year about whom the
information will ultimately be released.
MR. CHRISTENSEN said there is one way to eliminate our note, and
another way that would decrease it by about 90 percent. To
eliminate it, we would have DFYS administer the program, or else
the Department of Public Safety, through the Alaska Public Safety
Information Network (APSIN) computer system. DFYS has a statewide
computer. Of course, it is much cheaper to have a range six clerk
type a name into a computer and get a printout with the
information, than to have a range 12 clerk calling all over the
state looking for records. Up until now, we have never placed
juvenile's records in APSIN. This has always been a very
significant issue. As you know, on July 1 of this year, the adult
criminal records in APSIN are going to be made available to the
public for the first time. It would be possible to take this list
of 65 kids that is generated each leap year, provide it to the
Department of Public Safety, and then anyone with a question could
go to them, and they could punch a name into a computer. This
whole issue of where best it should be done, is tied into the loss
of federal funds. He briefly skimmed the memo from the
Administration for Children and Families, in Washington D.C.,
stating that it appears to say that any records we received from
DFYS, we cannot release. All the information we have in our files,
we get from DFYS, because they are the prosecuting authority. They
tell us who the kid is, where he lives, what he is accused of
doing, and provide all the backup. He did not know for sure that
the memo would allow us to do what this bill requires.
MR. CHRISTENSEN stated the other way to decrease our fiscal note by
95 percent; as the bill is drafted, it can probably be read as to
applying retroactively to all of those case files which currently
exist. That is where we have the problem with going back into old
files and looking up names. If we applied this only to kids who
were accused of a second felony, from the effective date of the
bill on, as each of these 60 files comes into existence, over the
next year we would simply take a sheet of paper which has the kid's
name and address on it, and what the accusation is, and put it in
a ring binder at the front counter; so anyone could look through it
to see if a kid they were interested in, was in it. That would be
a relatively inexpensive thing to do. What he understood the
purpose of this legislation to be was to create an additional
consequence, so that kids will be deterred from committing crimes.
We cannot deter kids who have already committed a crime, but we can
deter those 65 new kids we are going to generate this year,
perhaps.
MR. CHRISTENSEN noted the bill does have one technical problem. It
requires a judicial determination at the time of filing. Judges do
not look at the case at the time of filing. They do not look at
the case file until the initial arraignment. An additional problem
is, we perceive this as a serious consequence, but, if the judge
makes this determination at the time of filing, that is before the
kid even has an attorney, or a guardian ad litem, or a parent
involved, the kid has no way to object to this release. Even
though the bill says the judge is supposed to make a judicial
determination at the time of filing, judges will not do so until
the time of arraignment, for legal and practical reasons both. The
bill could be redrafted to simply provide for that, to avoid any
confusion in the future. In each of these 65 cases, the judge is
going to have to make a good cause determination as to whether or
not the kids should have the files released. He had talked to Bill
Hitchcock, Standing Master in Anchorage, who handles one half of
all the juvenile felonies in the state. Mr. Hitchcock does not
expect that to take much time. For most of these kids, you can
probably make that decision in under 15 minutes, just by seeing
what they have done before, and what they are accused of now;
therefore costs have not been included in the fiscal note for
additional judicial time to make that determination.
Number 720
REPRESENTATIVE VEZEY felt the bill was too soft on juveniles.
Would it make life easier for the people in the court system to
delete all reference under subsection (d)(2)? This would make any
delinquent court record public information.
MR. CHRISTENSEN said yes and no. Adult files used to be completely
open until the Victims Rights Act was passed about 5 years ago,
which made certain parts of adult records closed. Our costs to
implement that, which are not funded, have proven to be about
$120,000 to $150,000 a year of excess clerical time, just to
distinguish between those parts of adult files that are closed, and
are open. The only reason our costs are so low, is because we
figured out a sneaky way to get the attorneys to do about 85
percent of the work. Otherwise, our costs would be too much to
imagine. If juvenile files were essentially open, that would be
less expensive than having them partially open and partially
closed. What you would see, however, is a violation of the
constitutional right to privacy. This right includes
rehabilitation as a factor that must be considered. A complete
opening of juveniles records would be challenged almost
immediately. There is a difference between saying the records of
a 17 year old serial rapist should be open, versus saying the
records of a nine year old shoplifter should be open. There is a
difference in terms of potential rehabilitation, and right to
privacy. Clerical costs would be less, but you would be opening up
a big can of worms.
Number 760
REPRESENTATIVE BUNDE asked if we were putting a bandaid on this
problem. Would it be a cleaner approach to solving the problem if
the juvenile services were transferred to the Courts?
Number 775
MR. CHRISTENSEN was told by the folks in Washington D.C., that the
reason Alaska has previously been told by Region 10 that they could
not make their juvenile records public, like some other states
have, is because Alaska is one of a very few states that has the
delinquent cases and the "child in need of aid" cases in the same
agency. In most states, they are in two separate agencies, or else
one program is administered by the county while the other is
handled by the state. Because ours are all under the same state
agency, we cannot release the records. The problem with
transferring part of it to the Court System, is that, as a matter
of separating powers, you cannot have the prosecuting authority
also be the judicial authority. In many states they make the
separation by putting one part into DFYS, and the other into
Corrections.
REPRESENTATIVE BUNDE said he mis-spoke, he actually meant
Corrections, not the Courts. While that is a much larger policy
call, that would solve the problem of confidentiality.
MR. CHRISTENSEN understood it would, but he had not examined that
memo from Washington D.C. in any detail yet.
Number 800
CHAIRMAN PORTER said it was obvious there were a couple of things
they needed to fix in the bill. He asked Martha Holmberg how the
files worked within DFYS. Would there be one file per child,
regardless of what activity, through your jurisdiction, fell on
that child? Would a child receiving aid who committed a felony,
have all of that information in the same physical file?
Number 810
MS. HOLMBERG answered it may not go into the same physical file,
but there would be an additional file if there is a petition for
adjudication of delinquency. There would probably be two separate
files, but they would probably be combined as the jurisdiction and
supervision went to the youth probation section of the division.
CHAIRMAN PORTER said the intent of the federal legislation seemed
to be to keep the names of juveniles who are receiving this federal
aid, confidential.
MS. HOLMBERG thought that was correct. Even though the bill is not
specifically asking for information on whether or not a child is
receiving aid, by virtue of what the bill is asking for, if the
court received the information from the division, the court must
abide by confidentiality regulations.
LAURI OTTO, Deputy Attorney General, Department of Law, Criminal
Division, felt this was an unfunded mandate. This is an area where
the federal government has decided on certain policies they want
the states to follow in exchange for receiving federal funds. They
are saying if we are giving this kind of federal money to an
agency, you have to have certain confidentiality provisions in
place. The restrictions apply to an agency as a whole, regardless
of whether a particular child is receiving funds.
MS. OTTO said the way to solve the problem would be to move
juvenile probation out of DFYS into a completely separate agency.
One of the problems with doing that, is that, not surprisingly,
there is a very high percentage of children in need of aid who then
become juvenile delinquents. We do not have a system in the
juvenile area with graduated penalties for degrees of offense, like
we do for adults. It is all designed on an individual basis to try
to figure out what is best for each child, and so they rely heavily
on their information from the "child in need of aid" files.
MS. OTTO continued, stating that as a prosecutor, she had
experienced a great deal of frustration with DFYS, trying to get
information from them that she felt was essential to be able to
make decisions on how to handle cases on these kids who come into
the adult system. We get the same answer you are hearing here.
There are tight restrictions on what you can do. She felt
Representative Therriault was committed to work through the
problems without jeopardizing the funds. We are really willing to
work with him.
TAPE 95-26, SIDE B
Number 000
CHAIRMAN PORTER said there has to be a way to construct DFYS
records so that you can keep certain files private, and still be
allowed to obtain other information.
Number 035
REPRESENTATIVE THERRIAULT said when they initially contacted the
Department of Corrections, the response was very favorable, then
after contacting Region 10, they decided to reconsider. He would
like to try and figure out a way to make this work. His concern is
that we have a system that reinforces juvenile delinquency. It
allows them to commit the same crimes for years, and then we slam
them into an adult jail when they reach a certain age.
CHAIRMAN PORTER totally agreed. Nobody wants to publicize the nine
year old shoplifter, but the second time armed robber is
benefitting from the cloak of confidentiality and knows it. He
announced the bill would be held over in order to provide time for
revisions.
HJUD - 03/08/95
HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER
Number 275
REPRESENTATIVE BUNDE, sponsor of the bill, described his bill.
Sponsor Statement:
"HB 38 provides a mandatory 99-year sentence for a specific group
of offenders who have two separate prior class A or unclassified
felony convictions.
"Under this proposed legislation discretionary parole and good time
sentence reductions are not available to offenders who are
sentenced to a 99 year term. However, HB 38 allows those with a
99-year sentence to ask the court for a reduction in sentence after
they have served 50 years of their sentence. This provision is
similar to what is allowed when a murderer is convicted of a 99-
year sentence.
"This proposed legislation gives prosecutors some discretion in the
decision to pursue the 99-year sentence. This will avoid unjust
results in certain cases where the evidence may be weak. This
provision will also allow the prosecutor some flexibility to
proceed with the normal presumptive sentencing provisions when
necessary.
"There is a cost for keeping a person incarcerated for 99 years.
This legislation is crafted to keep the cost to a minimum and save
the state money. Strong punishments can shape behavior and deter
crime. Offenders may find they want to move to a state without a
3 strikes statute. Some offenders may decide the third strike is
not worth the rest of their life, and change their behavior.
Additionally, studies have shown that the recidivism rates for
three time offenders let back into society are between 65-76
percent. These offenders are taking up costly time in our judicial
system by committing the same crimes again and again. If the
revolving door is stopped the associated costs will decrease.
"It is time to close the revolving door too many repeat offenders
depend upon. This proposed legislation will make our state a safer
place. I urge your positive consideration of this legislation."
Number 380
REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of
Section 6.
JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services,
described Section 6. He said Section 6 is the statutory meat of
the bill, where we get started into what the sentence structure
will be. What we are doing is creating another way for people to
be sentenced, whose current conviction is their third most serious
felony conviction. "Most serious felony" is defined through
Section 6. What has to occur to receive this 99-year sentence for
this third most serious felony conviction, is that the prosecutors
must provide notice that they intend to seek a 99-year sentence.
Then if the person is convicted of that crime, and the judges,
without discretion, do sentence the person to another sentence,
other than this mandatory 99-year sentence; we use those same
exceptions in the murder statute. There are one or two other
provisions in our standard sentencing provision of 12.55. Section
7 of the bill adds in provisions for how you determine when
something is a previous most serious felony conviction for
establishing that the person has two previous convictions. This
bill, as it progressed last year, was modified so that each of the
convictions had to have occurred as part of a separate criminal
escapade. The first two convictions had to have occurred at
different times, and both convictions must have occurred before the
current conviction.
MR. LUCKHAUPT explained Section 8 of the bill. In order to work in
the language about how we are going to allow someone to challenge
these previous convictions, and we have this new term "most serious
felony," we basically had to rewrite the section. It deals with
the procedure of how a defendant can challenge these convictions.
MR. LUCKHAUPT explained Section 9. It deals, again with how the
defendant is able to challenge the convictions of whether or not
one of the previous convictions is a most serious felony
conviction.
MR. LUCKHAUPT explained Section 10. It adds a new subsection to
clarify when a previous conviction is counted as a previous
conviction. Last year when we were doing this bill, we discovered
that our current statutes are not clear. In all cases when we are
trying to determine when a prior most serious felony conviction or
any prior conviction should be counted as a prior conviction. This
was the language we developed with the Department of Law to
clarify, not only the situation presented in this bill, but the
situations presented across the board in all of our criminal
sentencing schemes where a previous conviction increases the
penalty.
MR. LUCKHAUPT explained Section 11. It is an aggravating factor
that can be used for offenses to increase the presumptive term.
That is basically a technical change we are making.
MR. LUCKHAUPT explained Section 12. It defines "most serious
felony." It means any unclassified or class A felony, which are
the crimes that the legislature has determined to be the most
heinous of crimes, and it is only unclassified and class A felonies
prescribed under AS 11, under our criminal code, or an attempt, or
conspiracy, or criminal solicitation to commit any of those crimes.
The attempts, conspiracy, and criminal solicitation to commit a
class A felony, are punishable as class B felonies, normally.
MR. LUCKHAUPT explained Section 13. It provides that, just like
with prisoners who are sentenced to 99 years for certain types of
murder, they are not eligible for discretionary parole during the
entire term. We mirror that with these 99 year sentences, so that
anyone convicted here is not eligible for discretionary parole.
REPRESENTATIVE FINKELSTEIN asked about page 7, lines 6 and 7. It
says that prisoners are not eligible for a good time deduction if
they have been sentenced to this mandatory sentence.
MR. LUCKHAUPT said last year a decision was made in one of the
committees that we are eliminating good time for people receiving
99 year sentences for being habitual criminals under this bill.
People receiving 99 year sentences for murders in the first degree
were eligible for good time, and that did not seem to make much
sense that we could not get good time here, but they could get good
time under a 99 year sentence in that situation. The decision was
made to eliminate good time for both classes of criminals, and to
do that, to avoid this being an ex post facto law, where we are
increasing a criminal punishment after the crime has been
committed, and after the person has been sentenced; that we can
only eliminate good time for people receiving murder sentences for
offenses that are committed after the effective date of this act.
So those people with 99 year sentences who committed their offenses
before the effective date of this Act would still be eligible for
good time, since good time is considered to be a reduction of
sentence, in the federal courts, and most state courts. The United
States Supreme Court has found that good time is a reduction of
sentence, so any time the legislature tries to take away good time,
or lessen its affect, that represents an unconstitutional ex post
facto law.
Number 560
CHAIRMAN PORTER asked about the provision for judicial review at a
certain age.
MR. LUCKHAUPT answered that provision is in Section 5. It was put
in when they adopted the mandatory 99 year sentences for certain
first degree murders, and it was felt that there should be a way
for that sentence to be modified at some point in time. Section 5
of the bill provides that a defendant can file a motion for
sentence reduction after they have served half of the mandatory 99
year sentence. The decision was made in this bill, to match that,
and to provide a bit of leniency here, to allow people with a 99
year sentence to apply to the court for a sentence reduction.
CHAIRMAN PORTER asked if he would consider Number 3 of Section 6,
"...a prisoner for prescribed mandatory term may not otherwise be
reduced..." as inconsistent with that provision?
MR. LUCKHAUPT said not necessarily. While we actually have not
been able to apply that provision to these other 99 year sentences
yet, he would not say that it is implicative, since this other
subsection is in the same section of the bill. They are read
together. In one situation, legislature is saying that you can
never reduce the sentence, but we are also providing, in the same
section of the bill, a way to do that. The proper way would be to
say, "notwithstanding that provision," we can provide for the
sentence reduction. That was not done in 1990, and so it has not
been done here. It may not be entirely necessary to do that.
Basically, this provision would mean nothing if you did not read
these two provisions together, to allow something to occur, which,
when you look at the rules of statutory construction, the
legislature intends, all of their acts, by enacting this provision
to allow a sentence reduction after 49 and 1/2 years. They enacted
that knowing this other section was out there. You have got a
duplicate provision of this language that would apply to those
mandated 99 year murder sentences, in statute now. That was not a
problem when we enacted in 1990, and he would not anticipate it to
be a problem in this case either.
CHAIRMAN PORTER said he would like a bill they did not have to
argue about.
REPRESENTATIVE BUNDE said some people would observe this as the
geriatric provision, for a number of reasons. Perhaps a 65 or 70
year old is no longer a danger to society.
CHAIRMAN PORTER wanted to make sure they could still use that
provision.
REPRESENTATIVE FINKELSTEIN asked, under the presumptive sentencing,
which of those are subject to the three judge panel if you are
trying to appeal a presumptive sentencing for 99 years for some
other crime. Do we have a three judge panel that applies to all of
those? How do you appeal the existing presumptive sentences?
MS. OTTO, Deputy Attorney General, Criminal Division, answered that
right now, if you are subject to a presumptive sentence, and there
are no aggravating or mitigating factors, you can ask the court to
refer the case to the three judge panel. That would be for
sentences that fall under the normal presumptive sentencing
statutes. This is not a normal presumptive sentence, this is a
mandatory sentence, as is the other mandatory 99 year sentence, and
the three judge panel does not apply to those cases. This is
taking away judicial discretion to deviate from the sentence that
the legislature laid out.
REPRESENTATIVE FINKELSTEIN asked if for these kind of life
imprisonments, there was any sort of court standard or expectation
of due process for these higher levels of sentencing. He thought
you had to have an appeal route.
MS. OTTO answered the court usually defers to the legislature in
determining the kind and length of sentence that should be imposed.
They do their best to put in procedures to make the process
constitutional, so that in imposing a sentence, somebody would have
to be given the right to be heard, and would have to be able to be
represented by counsel and all of the other procedural protections
that we impose, but the legislature has the ability to set a
particular sentence for a particular offense.
REPRESENTATIVE FINKELSTEIN asked if there had been any court
rulings that say it is a violation of due process, or cruel and
unusual punishment if you use presumptive sentencing regardless of
the circumstances.
MS. OTTO said she knew there were challenges being made to "three
strikes and you're out" statutes in other states, based on exactly
that argument; but to her knowledge there has been no such ruling
in Alaska.
MS. OTTO then gave her testimony, after answering Representative
Finkelstein's questions. She started working in prosecution in
1978, she has been an assistant district attorney, district
attorney, and chief prosecutor. She has testified before the
legislature on behalf of the Department of Law for many years in
favor of prosecution legislation. She now supervises the district
attorney's offices in the state. She has been described by some
people as never having met a tough criminal bill that she did not
like. She believes strongly in protecting the public through tough
criminal legislation. She felt this bill was rational in that it
narrowly targets the kind of offenders that really are getting long
sentences. It is clear that Representative Bunde has put a lot of
work into the language. She was frustrated with the bill, however,
and she had been working on it for a couple of days. The
Legislature has before it a supplemental for the Department of
Corrections to make it possible for them to keep the people who are
in custody now, incarcerated. The amount of cuts that are being
made to the Department of Corrections are such that what we are
talking about right now, is letting every single misdemeanant out,
and not incarcerating anybody else who is being sentenced for a
misdemeanor for the rest of the fiscal year, because we do not have
the money to keep facilities open, to keep them in jail. So she
has been trying to figure out the legal process that we need to go
through to have that happen. She is very bothered by this. She
thinks they have laws like DWI and domestic violence, all the
misdemeanor crimes that we have, for a reason. She thinks people
need to go to jail for those. She thinks people need to stay in
jail for those. If you do not have penalties for people when they
are committing minor crimes, you have people cycling out of
control, and they think they can get away with things, and that
there will not be any penalty. The reality is, unless the
legislature appropriates the money that is necessary to keep these
very expensive correctional facilities operating, we cannot put
people in jail, or keep them in jail.
REPRESENTATIVE BUNDE observed that last year in another body he was
asked if he was personally willing to pay taxes to support a bill
like this, and he certainly is. We are talking about hardened
criminals, and a lot of Ms. Otto's frustration comes from the
incarceration of people who are not going to fall into that
category. Before we need to build more prisons, the public has to
perceive the need, before they support building prisons. He is
talking about 5 or 6 hard core, habitual criminals that are not
going to overwhelm the correction system the way we are being
overwhelmed by these misdemeanants, who are in a different
category.
CHAIRMAN PORTER noted it was not his intention to pass the bill out
of committee that day.
Number 830
RANDALL BURNS, Executive Director, Alaska Civil Liberties Union,
testified via teleconference from Anchorage. He disagreed with the
schematics of the bill and the belief that his bill really does not
have a fiscal note in the near future. There was a story in the
Anchorage Daily News this morning, noting one of the clear impacts
of this bill, is in fact, a financial one. The decision will be
made for a future strike (felony) not to plead to them anymore. He
thought they should look at the history of the jurisdiction, of
what has been happening to the court system as a result of the
decision to adopt what is called "three strikes" or "habitual"
legislation. The point is, felons are simply not pleading out to
those anymore, but are insisting on going to trial. That costs
more money. The question you have to ask is whether or not that
makes any sense. For instance, research gives us information about
the death penalty bill, which you have obviously been privy to in
this committee in years past. It has shown us that our judges are
presently giving first degree murderers significant penalties.
What good does it do to have mandatory sentences, when the average
sentence imposed for first degree murder ranges between 62 and 87
years? One of the issues is that there is not really a significant
need for this bill. He felt our current statutes already had
significant protections.
TAPE 95-27, SIDE A
Number 000
MR. BURNS continued, disagreeing with the geriatric provision. For
humanitarian reasons alone, if a prisoner is subject to cancer, and
dying, they should not have to die in prison. He also felt this
legislation was increasing the danger to law enforcement officials
in Washington State. Criminals would rather go out in a shoot out,
than be arrested, knowing they will spend the rest of their life in
jail. He felt that a mandatory life sentence was cruel and unusual
punishment. He believes in the reformation aspect of the State of
Alaska Constitution.
Number 120
BARBARA BRINK, Deputy Director, Public Defender Agency, testified
via teleconference from Anchorage. She felt the fiscal impact to
the state would be noticed immediately, since this changes the
sentence for people who are now serving a 10 year sentence, to a
life in prison sentence. She felt the cost of convicting someone
would be substantial, as it would require proving the
constitutionality of each prior conviction, some of which may have
occurred in other states, which would in turn, require travel. The
prior strike would have to be shown to be a felony in the State of
Alaska. It would have to be a constitutionally valid plea. That
person would have to have had competent counsel, and if there is
any differing procedure in the other state, that has to be
accounted for as well. Thousands of man hours would be involved
there. Any person in this category would be more likely to go to
trial, rather than plea to the charge. Currently, 94 percent of
felony cases here in Alaska do not go to trial. They are resolved
with plea bargains, pleas to the charges, dismissals, and
negotiations. You would be turning a simple trial into a
complicated drain on the Alaska Court System, the Public Defender's
Office and the District Attorney's office.
MS. BRINK felt HB 38 was targeting the wrong age group. The rate
of crime for older people is decreasing, while the crime rate among
juveniles and younger adults has risen. She said that every hour
we spend locking up old people, is an hour we cannot spend
elsewhere.
REPRESENTATIVE BUNDE spoke to the concern over crowding our courts.
He guessed we could uncrowd our courts if we just stop arresting
people, but that is not the purpose. This may indeed cause more
work for courts, but one of the problems is the lack of public
confidence in this judicial system at this point. Many people have
told him how uncomfortable they are with the discretion judges
have. He read an article about how judges use their romantic
notions to try to rewrite our laws. He felt that if a person was
not rehabilitated after 20 years in prison, they most likely will
never be.
Number 420
CHAIRMAN PORTER explained that in his experience, he has asked
criminals if they realized how close they actually were to spending
the rest of their lives in jail, and in some instances, they
actually did make a turn, and changed their behavior. That is an
element that can be used when you have this kind of crime on the
books. It is an expensive one, and we should try to craft this
legislation in the least expensive, most effective way we can. Our
legal counsel will be working with the bill sponsor over the next
few days to try to put them in. One change that was mentioned was
the clarifying language on page 4, section (b) which begins on line
26. It could be misinterpretted, and he would like to have a bill
that does not ask more questions than it answers. There will be
suggestions on other sections too. He ended the discussion on HB
38 for further consideration and changes.
HJUD - 03/08/95
He then opened discussion on HJR 1 for the purpose of continuing it
on Friday.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:10 p.m.
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