Legislature(1997 - 1998)
05/06/1998 03:28 PM House JUD
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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 May 6, 1998 3:28 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 216(JUD) "An Act providing for the civil commitment of sexually violent predators." - MOVED HCS CSSB 216(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 219(FIN) am "An Act relating to establishing an office of victims' rights; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; and amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence." - FAILED TO MOVE CSSB 219(FIN) AM OUT OF COMMITTEE CS FOR SENATE BILL NO. 305(L&C) "An Act establishing a standard for determining when an injured worker is eligible for reemployment benefits and establishing a procedure for adopting a new, revised, or replacement standard for determining when an injured worker is eligible for reemployment benefits." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 216 SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Wilken, Leman, Duncan, Lincoln, Ward, Mackie Jrn-Date Jrn-Page Action 1/12/98 2166 (S) PREFILE RELEASED - 1/9/98 1/12/98 2166 (S) READ THE FIRST TIME - REFERRAL(S) 1/12/98 2167 (S) JUD, FIN 4/03/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 4/03/98 (S) MINUTE(JUD) 4/20/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 4/22/98 3432 (S) JUD RPT CS 2DP 2NR SAME TITLE 4/22/98 3432 (S) DP: TAYLOR, MILLER; NR: ELLIS, PEARCE 4/22/98 3432 (S) FNS TO SB & CS (ADM-2, COR, LAW, 4/22/98 3432 (S) DHSS, COURT) 4/23/98 3455 (S) CORRECTED FNS (#2/ADM; #4/LAW) 4/27/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/27/98 3514 (S) FIN RPT 2DP 3NR (JUD)CS 4/27/98 3514 (S) DP: PARNELL, PHILLIPS; NR: PEARCE, 4/27/98 3514 (S) SHARP, TORGERSON 4/27/98 3514 (S) PREVIOUS FNS (ADM-2, COR, LAW, 4/27/98 3514 (S) DHSS, COURT) 4/28/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203 4/29/98 3596 (S) RULES TO CALENDAR 4/29/98 4/29/98 3599 (S) READ THE SECOND TIME 4/29/98 3599 (S) JUD CS ADOPTED UNAN CONSENT 4/29/98 3599 (S) ADVANCED TO THIRD READING UNAN CONSENT 4/29/98 3600 (S) READ THE THIRD TIME CSSB 216(JUD) 4/29/98 3600 (S) COSPONSOR(S): DUNCAN, LINCOLN, WARD, 4/29/98 3600 (S) MACKIE 4/29/98 3600 (S) PASSED Y20 N- 4/29/98 3608 (S) TRANSMITTED TO (H) 4/30/98 3354 (H) READ THE FIRST TIME - REFERRAL(S) 4/30/98 3354 (H) JUDICIARY, FINANCE 5/06/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SB 219 SHORT TITLE: OFFICE OF VICTIMS' ADVOCACY SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Leman, Wilken, Parnell, Miller Jrn-Date Jrn-Page Action 1/12/98 2167 (S) PREFILE RELEASED 1/9/98 1/12/98 2167 (S) READ THE FIRST TIME - REFERRAL(S) 1/12/98 2167 (S) JUD, FIN 1/21/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 1/21/98 (S) MINUTE(JUD) 1/28/98 (S) JUD AT 2:00 PM BELTZ ROOM 211 1/28/98 (S) MINUTE(JUD) 1/30/98 2357 (S) JUD RPT CS 2DP 1NR NEW TITLE 1/30/98 2357 (S) DP: MILLER, TAYLOR 1/30/98 2357 (S) NR: PEARCE 1/30/98 2357 (S) FISCAL NOTE TO SB (LAA) 1/30/98 2357 (S) INDETERMINATE FN TO SB (LAW) 1/30/98 2357 (S) ZERO FISCAL NOTE TO SB (DPS) 2/04/98 2391 (S) FN TO CS (LAA) 2/05/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 2/25/98 (S) MINUTE(JUD) 4/22/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/22/98 (S) FIN AT 4:30 PM SENATE FINANCE 532 4/23/98 3455 (S) FIN RPT CS 5DP 2NR NEW TITLE 4/23/98 3455 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL, 4/23/98 3455 (S) DONLEY; NR: ADAMS, TORGERSON 4/23/98 3455 (S) FN TO CS (LAA) 4/24/98 3481 (S) ZERO FN TO CS (REV) 4/23/98 3455 (S) PREVIOUS INDETERMINATE FN APPLIES (LAW) 4/23/98 3455 (S) PREVIOUS ZERO FN APPLIES (DPS) 4/27/98 (S) RLS AT 12:10 PM FAHRENKAMP RM 203 5/01/98 3651 (S) FN TO CS (COR) 5/01/98 3651 (S) RULES TO CALENDAR 5/1/98 5/01/98 3681 (S) READ THE SECOND TIME 5/01/98 3681 (S) FIN CS ADOPTED UNAN CONSENT 5/01/98 3682 (S) AM NO 1 ADOPTED UNAN CONSENT 5/01/98 3683 (S) ADVANCED TO THIRD READING UNAN CONSENT 5/01/98 3683 (S) READ THE THIRD TIME CSSB 219(FIN) AM 5/01/98 3683 (S) COSPONSOR(S): WILKEN, PARNELL, MILLER 5/01/98 3684 (S) PASSED Y19 N1 5/01/98 3684 (S) COURT RULE(S) SAME AS PASSAGE 5/01/98 3698 (S) TRANSMITTED TO (H) 5/02/98 3457 (H) READ THE FIRST TIME - REFERRAL(S) 5/02/98 3457 (H) JUDICIARY, FINANCE 5/06/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER BILL STOLTZE, Legislative Administrative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Presented sponsor statement on SB 216. ANNE CARPENETI, Assistant Attorney General Legal Services Section - Juneau Civil Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Provided testimony on SB 216. KARL BRIMNER, Northern Regional Mental Health Services Coordinator Northern Regional Office Division of Mental Health and Developmental Disabilities Department of Health and Social Services 751 Old Richardson Highway, Suite 350 Fairbanks, Alaska 99701 Telephone: (907) 452-1673 POSITION STATEMENT: Provided testimony on SB 216. ELMER LINDSTROM, Special Assistant Office of the Commissioner Department of Health and Social Services P.O. Box 110601 Juneau, Alaska 99811-0601 Telephone: (907) 465-3030 POSITION STATEMENT: Provided testimony on SB 216. BRUCE RICHARDS, Program Coordinator Office of the Commissioner Department of Corrections 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907) 465-3307 POSITION STATEMENT: Provided testimony on SB 216. JAYNE ANDREEN, Executive Director Council on Domestic Violence and Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Telephone: (907) 465-4356 POSITION STATEMENT: Provided testimony on SB 216. WALTER MAJOROS, Executive Director Alaska Mental Health Board 431 North Franklin Street Juneau, Alaska 99801 Telephone: (907) 465-3072 POSITION STATEMENT: Provided testimony on SB 216. BLAIR McCUNE, Deputy Director Central Office Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Provided testimony on SB 216. BRETT HUBER, Legislative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Provided sponsor statement for SB 219. NANCI JONES, Director Permanent Fund Dividend Division Department of Revenue P.O. Box 110460 Juneau, Alaska 99811-0460 Telephone: (907) 465-2323 POSITION STATEMENT: Provided testimony on SB 219. CHRIS CHRISTENSEN, Staff Counsel Administrative Staff Office of the Administrative Director Alaska Court System 820 West 4th Avenue Anchorage, Alaska 99501-2005 Telephone: (907) 264-8228 POSITION STATEMENT: Provided testimony on SB 219. ACTION NARRATIVE TAPE 98-85, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 3:28 p.m. Members present at the call to order were Representatives Green, Bunde, Rokeberg, James and Berkowitz. Representatives Croft and Porter arrived at 3:40 p.m. and 4:13 p.m., respectively. CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS CHAIRMAN GREEN announced the first item of business would be CS for SB No. 216(JUD), "An Act providing for the civil commitment of sexually violent predators." CHAIRMAN GREEN called on the spokesperson from the sponsor of the bill's office. Number 0080 BILL STOLTZE, Legislative Administrative Assistant to Senator Rick Halford, Alaska State Legislature, stated SB 216 allows for the confinement of sexual predators, a certain class of the most heinous offenders. The confinement is allowed after they have served their sentence. The recent ruling from the Supreme Court of the United States (Kansas v. Hendricks) indicated that if the states meets certain test, it is an allowable non-(indisc.) procedure. The concerns were ex post-facto, double jeopardy, and due process. The court ruled that the Kansas statute met the requirements through (indisc.). The legal department crafted a statute (indisc.) the Kansas statute which has met the test in the highest court. Cynthia Cooper from the Department of Law prepared a chart which outlines the screening phases. Number 0252 CHAIRMAN GREEN noted that this has a significant fiscal impact, according to the fiscal notes. He asked Mr. Stoltze whether he or the Senator has anything to say about that impact. Number 0279 MR. STOLTZE replied it is an expensive tool. It would not be used in every case. Initial conversations with the Department of Law indicated a more modest fiscal note. It is an expensive tool and would be used as much as could be afforded. Number 0329 CHAIRMAN GREEN stated it is not uncommon that when the Administration submits a high fiscal note it is not in tune with that particular piece of legislation. He asked Mr. Stoltze whether the committee will hear from the Administration. Number 0357 MR. STOLTZE replied the Administration is prepared to defend the fiscal notes. Number 0376 REPRESENTATIVE CON BUNDE stated it is his understanding that pedophiles will be pedophiles their entire life. They are born with it. It is beyond exercising self-control. They are not "curable." He asked Mr. Stoltze whether that is correct. Number 0414 MR. STOLTZE replied he is not an expert on that. Personally, he believes that it is not cured by hand-holding encounter groups. There is a very high percentage level of repeat offenses. Senator Halford is trying to stress that the individuals who continue to perpetrate these crimes will be confined at some point. Therefore, he wants to slow down the stream of victims and suffering that follows. Number 0468 CHAIRMAN GREEN stated that this would apply to people who have served their sentence and then incarcerated additionally on a supposition - the punishment before the crime. He asked Mr. Stoltze whether he recalls how that was addressed in the Supreme Court of the United States. Number 0500 MR. STOLTZE replied "incarceration" is the wrong term. The correct term is "confinement." Justice Clarence Thomas specified that it was not double jeopardy or ex post-facto punishment. Justice Thomas indicated, "The state may take measures to restrict the freedom of the dangerously mentally ill. This Kansas statute is a legitimate non-punitive governmental objective and has been historically so regarded....The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment or that the state has disenvowed any punitive intent, limited confinement to a small segment of particularly dangerous individuals, provided strict procedural safeguards, directed that confined person be segregated from the general prison population and afforded the same status as others who have been civilly committed recommended treatment if such is possible, and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent." Number 0594 REPRESENTATIVE ETHAN BERKOWITZ stated he has heard concern that the current civil commitment language in Title 47 might be inadequate to respond to this problem. Number 0613 MR. STOLTZE replied this is a whole other type of civil commitment than a commitment int Title 47. He would rather have Anne Carpeneti from the Department of Law elaborate on that later. Number 0639 REPRESENTATIVE BERKOWITZ asked Mr. Stoltze whether he knows if there have been any instances where Title 47 has been used in Alaska to hold a sexual predator or anyone who is likely to commit a crime against another individual. Number 0653 MR. STOLTZE deferred to Anne Carpeneti from the Department of Law to answer the question. Number 0664 REPRESENTATIVE JEANNETTE JAMES asked Mr. Stoltze whether he would liken this confinement to the type of confinement that the state used to have with mental institutions for the criminally insane. Number 0695 MR. STOLTZE replied there is a different type of statute that covers the guilty but mentally ill criminals. Some are confined to the Alaska Psychiatric Hospital. It isn't actually a warehouse. It is a small number of people. Number 0728 REPRESENTATIVE NORMAN ROKEBERG asked Mr. Stoltze what the sponsor's opinion is of the fiscal note and objection to the $12 million to house these people. MR. STOLTZE replied Senator Halford's reaction is that it is an expensive tool. Prosecutors would use it only as often as they could afford to use it. Senator Halford didn't say so directly, but by inference they were excessive. They reflected a broader application than the intent of the legislation. Number 0774 REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether the testimony has indicated any relationship between actual cases and instances in the state where this would have been beneficial to have, or is it based on perspective only. Number 0793 MR. STOLTZE replied, he believes, as written the procedure starts for those people who are currently incarcerated. Through the news media he has seen a few good candidates for it. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there has been any evidence that the situation should have been in hand before. Number 0838 MR. STOLTZE replied not in proceedings, but talking with individuals he has heard of cases anecdotally. He cited Mr. Rodriguez (ph) as an example. Number 0890 REPRESENTATIVE BERKOWITZ stated the bill applies to sexually violent predators and someone who suffers from a mental illness. According to AS 47.30.705, anyone who is suffering from a mental illness and is likely to cause serious harm to himself or others, can be taken into custody. It seems to sweep up the concern that this bill addresses. Number 0988 REPRESENTATIVE ERIC CROFT stated if it can be done now and do all the things that the front part of the bill talks about... Number 1010 MR. STOLTZE stated Representative Croft is right on the point. The statute does not meet the guidelines that Justice Thomas laid out in his majority opinion without the safeguards in place and the due process procedures outlined in the bill. Number 1029 REPRESENTATIVE BERKOWITZ stated there is a whole section in the statute about commitment proceeding rights, notification, court orders, and additional commitments. They seem fairly extensive. Number 1049 REPRESENTATIVE BUNDE stated violent serial rapists are judged insane. They are judged criminal. It seems that psycho predators or the insane are one of the criteria. REPRESENTATIVE BERKOWITZ noted that it says "and." REPRESENTATIVE JAMES stated in trying to associate what is in statute with what the bill is trying to accomplish, she noted that this happens while they are under control as opposed to finding them on the street when considering them dangerous to themselves or others, such as a mental person in statute. She believes that the bill tends to address the people who are called "sexually violent predators" who are currently incarcerated for their crime and whether or not they should be let go as opposed to whether or not they should be brought in. Number 1147 CHAIRMAN GREEN stated the testimony is getting into the nuances. He suggested hearing from a legal expert. Number 1188 ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Civil Division, Department of Law, noted that the person who should describe civil commitments is Karl Brimner who works for the Division of Mental Health and Developmental Disabilities. He knows about the mental health commitments in Title 47. The findings in the bill set out clearly that it is dealing with a different sort of mental illness than what Title 47 is dealing with. It uses a different definition of mental illness from the statute. It uses a definition in Title 12 rather than in Title 47. The bill is aimed at people who suffer from mental illnesses dealing with sexual deviation who are not treatable compared to people who suffer from mental illnesses in other contexts. In other contexts, the approach is for treatment in a short time. Treatment for sexually violent predators takes a long time. Number 1285 KARL BRIMNER, Northern Regional Mental Health Services Coordinator, Northern Regional Office, Division of Mental Health and Developmental Disabilities, Department of Health and Social Services, stated Title 47's involuntary commitment law is primarily used for purposes of individuals who are mentally ill and psychotic, and who are dangerous to themselves or others at that immediate time. That is how the judges rule on it. It is used for a short period of time for stabilization to get the individual back into the community to receive services. The individuals being discussed in the bill usually require treatment for long periods of time, and they don't respond to treatment well. Number 1344 CHAIRMAN GREEN stated that pedophiles appear normal. He wondered whether pedophiles go through cycles so that they test alright at one particular time then when back out do something bad. He asked whether the state would incur any liability by having something like this in statute and letting somebody out who comites a reoffense. Number 1390 MS. CARPENETI replied there is an immunity section in the bill. If a decision to release somebody is made in good faith, the state, agencies of the state, employees of agencies of the state, and officials cannot be sued. Number 1404 CHAIRMAN GREEN stated the decision could be in good faith, but according to the testimony they are almost incurable. The chance of them going back into society is almost nil, but according to the tests they should be let go. MS. CARPENETI replied Mr. Brimner can answer the testing provision. When looking at and evaluating people who qualify as sexually violent predators, a test includes their past and history of abuse also. The state would be able to introduce evidence of their past in a trial as well. Number 1455 CHAIRMAN GREEN asked Ms. Carpeneti whether that would mean there is no light at the end of a tunnel for a sexually violent predator because his past is pretty jaded. MS. CARPENETI replied, "I don't think so." The state has to offer treatment in good faith under the bill to withstand constitutional muster. There are methods of treating sexually violent predators. It takes a long time and focuses on not necessarily changing their predilections, but curbing their actions. Number 1491 REPRESENTATIVE BUNDE stated the commitment under Title 47 often involves medication as well as psychological treatment. He asked Mr. Brimner whether there is medical treatment for sexual predators, other than castration. MR. BRIMNER replied there is some medication used. It is not a full-proof method, however. He has seen success with individuals who are not as dangerous as the individuals that the bill talks about. Sometimes medication can be helpful when there is a good prognosis, when there isn't resistance, and when there is a willingness to change. Number 1552 CHAIRMAN GREEN wondered whether the bill would cover female offenders as well. MS. CARPENETI replied, "Yes." CHAIRMAN GREEN asked whether the tests and procedures would be the same for female offenders. MR. BRIMNER replied the assessment tools would be for either sex. The psychological dynamic is usually a personality disorder which can be either male or female. Number 1602 REPRESENTATIVE ROKEBERG asked whether there have been any findings or rulings by the federal courts that castration or other types of methods like that are cruel and unusual punishment. MS. CARPENETI replied she doesn't know whether that procedure is allowed in the country. She would be happy to find out. REPRESENTATIVE ROKEBERG wondered whether chemical or other methods available would be cheaper than going the route of hard-bed facilities to accommodate the populations. Number 1668 MR. BRIMNER stated chemical castration to eliminate the sexual urge does not necessarily take care of the problem. It is often an issue of power, not sex. It is the desire of an individual to have power over someone else and to hurt that person which is often sexually, as well as physically. There are isolated cases where it can be helpful though. Number 1712 REPRESENTATIVE BUNDE noted that there has been cases where inmates have requested chemical castration in an attempt to control themselves. They are usually pedophiles. It is often said that rape is not a sexual crime, but a crime of violence. Chemical castration may not be the answer. CHAIRMAN GREEN asked, if there is another part of the testosterone, would that mean there is a different manifestation of the anger. MR. BRIMNER replied, "Certainly." An individual may lash out in a much more violent manner. CHAIRMAN GREEN stated these are the things that somebody would have to look at before a predator could pass muster, if the bill is enacted. MS. CARPENETI noted after there is a finding that a person is a sexually violent predator, the court must decide if that person can be safely placed in a noncustodial setting. She is sure that chemical castration would be one of the things looked at to keep that person safe from other people. The finding would have to be made before that person could be sent to an institution. Number 1800 MS. CARPENETI stated there are two other issues that the department would like to consider as conceptual amendments today. The bill was modeled after the Kansas statute that was just upheld by the Supreme Court of the United States. It is based on the Constitution of the United States. However, she does not know whether the state courts would uphold it based on the state constitution. At any rate, the bill has some provisions dealing with the representation of the person who the state is seeking to commit and how that person obtains experts to examine them and to testify on their own behalf. The department thinks it would be a lot cleaner to make it clear that the person would be represented by counsel, which is constitutionally required, or represented by a public defender who can then make the determination if an expert should be retained. She referred to page 4, line 11; page 6, line 14; and page 7, lines 20-21. CHAIRMAN GREEN asked Ms. Carpeneti whether it would abrogate the court's authority. MS. CARPENETI replied in other civil commitment and criminal cases the person's lawyer makes the decision to obtain an expert witness, not the judge. It would put the judge in an awkward position to decide what expert to appoint to assist a person. CHAIRMAN GREEN asked Ms. Carpeneti whether there would be a problem with a conflict of interest for an attorney to bring in witnesses on his clients behalf rather than on an impartial basis. MS. CARPENETI replied civil commitment proceedings are adversarial proceedings in general. Number 2057 REPRESENTATIVE BUNDE made a motion to adopt Amendment 1 and conceptually the same amendment to page 6, line 14; and page 7, line 20. Amendment 1 reads as follows: TO: CSSB 216(JUD) Page 4, line 11: Delete "to assist" Insert "under AS 18.85 to represent" Page 4, lines 15 - 20: Delete "If the person is indigent, the court, upon the person's request, shall determine if the services are necessary and the compensation for those services is reasonable. If the court determines that the services are necessary and the compensation for the services is reasonable, the court and the person's counsel shall assist the person in obtaining an expert or professional to perform an examination or participate in the trial on the person's behalf." CHAIRMAN GREEN objected for discussion purposes. REPRESENTATIVE BUNDE asked Ms. Carpeneti to explain AS 18.85. MS. CARPENETI replied it addresses the powers and authorities of the public defenders. Number 2102 CHAIRMAN GREEN asked Ms. Carpeneti whether the court would still exercises the authority. MS. CARPENETI replied the court would appoint an attorney for representation. CHAIRMAN GREEN asked Ms. Carpeneti whether the court would help find an expert. MS. CARPENETI replied the court would probably not be in a position to help in a particular case. It would probably be the attorney who determines the best expert. CHAIRMAN GREEN noted that the amendment says, "the court and the person's counsel shall assist the person in obtaining an expert or professional..." MS. CARPENETI noted that language is to be deleted. CHAIRMAN GREEN removed his objection. CHAIRMAN GREEN asked whether there is any further objection to the motion to adopt Amendment 1. There being no objection, the motion was so adopted. Number 2170 MS. CARPENETI referred to page 5, subsection (c) and explained the Kansas and Washington statutes that were approved by the Supreme Court provide for two separate hearings - one to determine whether the act was committed, and one to determine whether the person should be committed. Kansas has already moved to amend its procedure to allow the factual finding to be determined in conjunction with the commitment hearing to eliminate two separate proceedings. An amendment to address this issue has not been drafted. It would be a conceptual amendment. REPRESENTATIVE JAMES noted that is a true conceptual amendment. CHAIRMAN GREEN announced he has some problems with that. MS. CARPENETI explained the person cannot be tried for the acts because he is not in a mental state to be subject to a criminal trial. On the other hand, he may be in a position to be released in order to proceed under a civil commitment. CHAIRMAN GREEN stated he is concerned about the tremendous fiscal impact. Number 2261 REPRESENTATIVE BUNDE suggested waiting for an actual amendment since the votes are not here to pass the bill out of the committee anyway. CHAIRMAN GREEN asked Ms. Carpeneti whether she could provide the amendment in writing. MS. CARPENETI replied, "Yes." In terms of the fiscal note, the amendment would probably streamline the procedure. She noted that this situation comes up rarely. It is not found very often that a person is found to be incompetent to be tried for a criminal charge. In the circumstances where that person is found to be incompetent, it would streamline the procedure to avoid two separate hearings. CHAIRMAN GREEN noted, in theory, it should reduce the fiscal note. MS. CARPENETI replied she doesn't want to give any false hopes because it doesn't happen very often. Number 2313 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services, referred to the flowchart illustrating the three phases - screening, court proceedings, and appeal and annual review. This is truly a different population of persons who are not being served or treated by the department as mental health clients. These persons would not be criminals. They would be civilly committed. This is creating a brand new system to deal with a brand new type of thing. The department feels strongly that, if this is the road the state wants to walk down, it would be very expenses. The fiscal notes are not inflated or exaggerated. They represent the cost of creating a brand new system to deal with a new population. Number 2418 REPRESENTATIVE JAMES asked whether there is any provision in law that would allow for the confinement of this type of person. MS. CARPENETI replied, "I don't believe so." This type of person would not qualify under the civil commitment statute as imminently dangerous to himself or others. REPRESENTATIVE JAMES asked Ms. Carpeneti whether the difference is tomorrow, three weeks, two months, or a year. MS. CARPENETI replied, "I believe so." In reference to the fiscal note, the number was chosen based on conversations with the state of Washington, which has a similar statutory procedure... TAPE 98-85, SIDE B Number 0000 MS. CARPENETI continued. The state of Washington has not lost a single one that has been filed. The statute was adopted it 1990. It is not being used frivolously. It turns out to be about 2 percent of the sexual offenders released from the prisons. Number 0024 REPRESENTATIVE JAMES asked Ms. Carpeneti what would be 2 percent in numbers for Alaska. MS. CARPENETI replied 160 sex offenders are expected to be released this calendar year. Two percent is about three and a half to four. Number 0043 MR. LINDSTROM stated it has been suggested that this is just a tool in a toolbox, and that there is discretion associated with it. This is true to a point, but if the Department of Corrections refers someone to the Department of Health and Social Services believing that the provisions in the bill are appropriate and the Department of Law believes that there is evidence to go to court and make it stick, what basis would the state have not to proceed. "I don't think the public or you or anyone else would accept the fact that we only had money to do this for three people and the fourth person coming down the pipe who meets all of these criteria and we all believe is a threat that we are simply going to say we're out of money this year and I'm afraid we're not gonna go forward. I don't think you would stand for that. I don't think the public would stand for it, and I don't think the professionals in this system could stand for it." Number 0103 CHAIRMAN GREEN asked Mr. Lindstrom whether there is a plateau associated with the fiscal notes. MR. LINDSTROM replied the Department of Health and Social Services' fiscal note is based on the assumption of five persons actually going to trial and the state prevailing in four of the five cases. This is very long treatment and the department expects the population to grow by another four each year. The evidence so far in other states is that people do not graduate from the program readily. CHAIRMAN GREEN asked Mr. Lindstrom what he sees as the alternative to something like this at the risk of putting these people out into society. MR. LINDSTROM replied, in the absence of this type of system, the odds are that these types of people would probably be put back into corrections. Number 0181 MR. STOLTZE stated, according to the sponsor, the alternative is to wait for a new stream of victims and trials with criminal proceedings. "We don't find that a real palatable alternative," he declared. Number 0189 REPRESENTATIVE JAMES stated when more cases come up they are not tried because there isn't any money. A supplemental is requested, for example. She believes that someplace down the line there would be this money spent and other money not spent. It might not be this year or next year, but over a long period of time it appears that this approach would have a cost savings. Number 0234 REPRESENTATIVE BERKOWITZ stated, if these people are without a reasonable doubt going to recommit a crime later own, it becomes a question of pay now or pay later. Number 0248 MR. LINDSTROM stated he does not know how to make that type of comparison. The department is assuming that these individuals would be sent out of state for treatment. The one place that would be willing to accept these folks costs $400 a day - about one-half the cost of acute care treatment in a psychiatric hospital setting. Obviously, if the bill passes, there would have to be discussions in the future on whether to continue to contract or provide instate facilities. Number 0300 REPRESENTATIVE CROFT asked what is the recidivism rate for sex offenders. Number 0310 BRUCE RICHARDS, Program Coordinator, Office of the Commissioner, Department of Corrections, stated he believes the last recidivism study was based on how long people were in treatment. He doesn't have the information in front of him, however. He could get some information on the sex offender treatment program, which shows those who do not participate in treatment versus those who participate in treatment in prison. There is a significant difference in time between the next reoffense. Number 0349 REPRESENTATIVE CROFT asked Mr. Richards the magnitude of the difference. Is it between 1 and 5 percent, or 33 and 50 percent? MR. RICHARDS replied he wouldn't even venture to guess. CHAIRMAN GREEN asked Mr. Richards whether he could provide that information. MR. RICHARD replied in the affirmative. REPRESENTATIVE CROFT asked whether there was a deduction based on recidivism estimates incorporated into the fiscal notes. MS. CARPENETI stated she would find that out for the Department of Law. Number 0395 MR. STOLTZE stated, as an editorial, that this is part of the Administration that is chided as a group for not passing intervention programs. Number 0404 REPRESENTATIVE BRIAN PORTER suggested to the departments to consider the recidivism rates. The small percentage of folks that would return has to be based on the expectation of committing another crime. There has got to be an offset, otherwise this whole theory doesn't work. Number 0431 MS. CARPENETI noted that the treatment under this scheme would be a lot less expensive than psychiatric care, but it still is a lot more expensive than time in jail. Number 0444 REPRESENTATIVE PORTER stated, "I'm assuming that we would have the good track record that we have and convict 99 percent of these guys again, and they would be back anyway. So all of that should be part of the fiscal analysis." Number 0453 REPRESENTATIVE CROFT stated there would be the cost of a trial, but there would be a lower cost of incarceration because they would be placed in a facility as ordinary criminals at $100 a day. It wound not come to anything near to a wash, but it is appropriate to have some sort of an offset. CHAIRMAN GREEN noted that it is a policy call. Number 0485 REPRESENTATIVE ROKEBERG stated there is a University of Alaska Anchorage (UAA) study and wondered whether there is another study on the efficacy of the sex offender in terms of the education program. Are they two separate studies? he asked. MR. RICHARDS replied that was the study done by the university. REPRESENTATIVE ROKEBERG stated they are one in the same. REPRESENTATIVE ROKEBERG asked Mr. Richards whether the study tried to categorize prisoners as violent. MR. RICHARDS replied, "Yes." Number 0536 REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti what would be the size of the jury, 6 or 12. MS. CARPENETI replied she is assuming that the size of the jury would be 12. Number 0549 REPRESENTATIVE ROKEBERG said, if there is a correlation between the success rate of people who offend violently and the program, it would be interesting to see. It would be interesting to see if they would be categorized as a violent sexual offender under the criteria used in the study and whether or not they would offend less by going through the program. Number 0587 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, pointed out that sexual offenders are all violent offenders. Sexual assault by its very nature is a violent offense. Sex is merely the tool used to perpetuate the violence. Sex offenders cannot be rehabilitated. At the very best, they can learn to control their offenses. The council wants to acknowledge that since a very small percentage of sex offenders have a high predatory level that extensive incarceration or commitment is in the best interest of the public's safety, while acknowledging that there is a very high potential for all sex offenders to reoffend. The council supports the bill. Ideally, the council would like to see all sex offenders have long enough terms so that they cannot be a threat to the public at any point in the future. However, the council realizes that is not going to happen. This bill is one avenue to help raise the safety level for the general public. In addition, it is important to segregate these offenders from the general mental health populations because they would move from a criminal to a civil process. Mental health patients are even more vulnerable to sexual assault than the general public. There needs to be clear separation between the two. Number 0671 REPRESENTATIVE BERKOWITZ asked Ms. Andreen whether there was any attempt to make a sexual assault predator an aggravator with a mandatory addition of probation or parole time, if not jail time. MS. ANDREEN replied the council was not actively involved in the negotiations. REPRESENTATIVE BERKOWITZ stated the reason that he asked is because consolidating everything at the initial fact-finding stage speeds everything up and spares the expense of subsequent proceedings. Number 0745 MR. STOLTZE stated the Department of Law has testified that the people were sentenced for shorter periods of time until the philosophical change of the legislature towards more stringent laws. He understands Representative Berkowitz's point, but there isn't an avenue to address it under the title. Number 0776 CHAIRMAN GREEN noted that a pedophile, a threat to society, would go from a $100 bed to a $400 bed at the end of his incarceration. He wondered whether that is strange. MR. STOLTZE replied the alternative is letting him out. CHAIRMAN GREEN asked why is the next phase a $400 or $800 a day bed. Why not keep him in a cheaper facility? MR. STOLTZE replied the procedure kicks in towards the end of his sentence. It is about the time that he is ready to be spewed out into society. According to the Supreme Court decision, there has to be some treatment and hope for rehabilitation. CHAIRMAN GREEN stated on the one hand he is incorrigible. On the other hand there has to be some reasonable assurance for hope of rehabilitation. MR. STOLTZE stated the desire of the sponsor is limited by what would be allowed by the court. This is the only mechanism to... CHAIRMAN GREEN interjected to keep him off the street. Number 0875 REPRESENTATIVE JAMES stated she doesn't know how long the original term is, but it seems backwards. Why is a person in the correctional system without getting any treatment? Why don't we go right into it? she asked. It does not seem sensible to keep a person then put him into treatment when he is about to get out. Number 0915 MR. STOLTZE noted that Hendricks refused treatment for his confinement. CHAIRMAN GREEN asked Mr. Stoltze, if the bill passes, would those who refuse treatment stay in the slammer. MR. STOLTZE replied it is an involuntary commitment. He understands the queasiness, but it is the only path to walk on. REPRESENTATIVE BERKOWITZ stated it is not the only path. The bill loads the program at the back end instead of the front end. The proceedings could be initiated at the point of incarceration. Why not put a person through these proceeding at the get-go and see if he is a sexually violent predator? If he washes out, he is gone forever. If he passes out, then the state doesn't have to keep him in for perpetuity. There is no reason to wait for a person to serve his period of incarceration then make a determination of civil commitment. REPRESENTATIVE JAMES noted that is her point also. Number 1041 MS. CARPENETI stated the problem is we don't know how a person would do at that point in jail by participating in a sex offender treatment program. REPRESENTATIVE BERKOWITZ stated if these are sexually violent predators, according to the definition, they are going to be diagnosable when convicted. Certainly, if after going through their period of incarceration as sexually violent predators, they must have started out as sexually violent predators. Why not start them out at the beginning of the sentence, instead of the end of the sentence? he asked. MS. CARPENETI replied, "You might not come to that conclusion that they are mentally ill under this definition and suffer from--that they are mentally ill and sexually violent predators, until they have served their sentence in jail and gone through the treatment programs available in the jail." If there is a proceeding at the same time of conviction, there may be a lot of time and resources wasted. Number 1074 MS. ANDREEN stated the best would be to have both options available. There are times when corrections would not know until it has had someone for a while. The standard presumptive sentence for first degree sexual abuse is eight years, which means six and one-third years with good behavior. Sometimes it takes that amount of time to really understand. Sex offenders are incredibly manipulative. She cited a story of a sex offender in Homer. Number 1183 CHAIRMAN GREEN stated on one hand these types of criminals are incurrable, and asked why does the state need to wait six and one- half years before determining that they are this type of criminal. They were arrested for being that type of criminal. Are there those who do this type of crime just once or do they do it for life? he asked. MS. ANDREEN replied according to studies the average number of victims is around 40 before being convicted. It is a pattern. It is something that would be repeated. CHAIRMAN GREEN stated he is really confused why the state needs six and one-half years to determine that this type of person would spend the rest of his life incarcerated. MS. CARPENETI noted that the person is serving a criminal sentence. CHAIRMAN GREEN stated if the state knows someone is an "A" type and convicts him to an "A" facility, and asked why the state doesn't help him up front instead of waiting six and one-half years. MS. CARPENETI asked what would be the advantage of doing it at the beginning of a sentence. CHAIRMAN GREEN stated, if the state has him for six and one-half years in the slammer and knows he would not be corrected, why not keep him in the slammer instead of sending him to an "A" type facility that costs four to eight times as much. Representative James and Berkowitz suggested treating the person earlier while in jail, instead of waiting for his sentence to end. MS. CARPENETI replied a lot of people respond to giving this type of person a longer criminal sentence because it would be less expensive and more practical. The state is now getting longer sentences for people who commit these types of crimes, especially for their second and third times, compared to a decade ago. It is a prospective procedure, however. MS. CARPENETI further replied that there are treatment programs available in the prisons for sex offenders. She suggested hearing from Bruce Richards. He is able to give statistics on how well the state is doing and what is available. Number 1420 CHAIRMAN GREEN said, "We have heard that this person when it does finally come time to either he is on the street or in treatment, that he no longer is under the corrections department. He now is in a different department." MS. CARPENETI noted that he would be in the custody of the Department of Health and Social Services. CHAIRMAN GREEN stated, "And, that's the only way we can pass the Kansas type extension is so go to that method rather than to say okay he's a danger then we'll leave him in the slammer." MS. CARPENETI replied that is correct. MR. STOLTZE noted that it would be using a selective tool very unselectively. If it is applied universally, it is trying to determine a very broad class. Number 1470 REPRESENTATIVE BUNDE noted that there are treatment programs within the correctional facilities. They are voluntary while some folks are treatable and some are not. "We ought not to lose site of what the purpose is at the end for the civil commitment." It isn't to treat them; they are beyond treatment. It is to keep them off of the street. What is the price of keeping children safe? he asked. The treatment is just eyewash. It is just to keep them locked up. CHAIRMAN GREEN stated it seems that there ought to be a reasonable degree of assurance. MS. CARPENETI stated it is true that these people are very difficult to treat, but it is not true that they are hopeless. Number 1579 REPRESENTATIVE BERKOWITZ referred to page 3, line 10, and called it the most important part of the section. It may determine whether a person is a sexually violent predator prior to conviction or during the period of incarceration. Waiting to the end of a person's conviction is postponing a decision that should have been made earlier. He said, let's attack the problem when it is discovered. Let's not wait until it has festered. MS. CARPENETI asked Representative Berkowitz whether he is envisioning a separate hearing after a conviction on whether or not the person is a sexually violent predator. REPRESENTATIVE BERKOWITZ stated this is a civil commitment. Why does the fact of incarceration matter? he asked. MS. CARPENETI replied it matters to the extent that the person has committed a crime and is serving a sentence for another reason apart from his treatment. REPRESENTATIVE BERKOWITZ replied a civil commitment is a prospective, not a punitive measure. "We're not saying we're civilly committing you because you have done something bad. We're saying we're civilly committing you because we think you're going to do something bad." Once the state determines that it is going to commit someone, the current factor of his conviction for a crime is irrelevant. "If you see someone walking down the street who you believe is a sexually violent predator and they're not convicted, what are we doing about them? Nothing. So, who are we really protecting?" MS. CARPENETI replied she would like to deal with a sexually violent predator walking down the street too. She is dealing more with realities. There is a person and the state knows his history, how he has done in jail, and how he has responded to treatment. Then, there is the concern about letting him out. She would want to know more information whether the individual walking down the street unincarcerated and uncharged is a sexually violent predator. REPRESENTATIVE BERKOWITZ replied, "But, here when say they've gone through a treatment program while they're in, and the treatment program, say it's a first offense, is usually five and two-thirds. And, so you know, at three years to say we're not doing it or we've walked out of the program twice or whatever has happened. Why are we waiting to the end of the five and two-thirds? Why aren't we just grabbing them after three and saying ok this a sexually violent predator. Let's pop him now." MS. CARPENETI replied we are requiring him to serve his sentence as part of a criminal conviction. He violated the law and victimized a person. He ought to go to jail for it and serve his sentence. If he hasn't taken advantage or been able to be rehabilitated in jail, then he should be looked at again. MR. STOLTZE stated the concern is not of the individual, but society. Society is concerned when a person is about to be released. REPRESENTATIVE BERKOWITZ asked why is the state wasting resources to try to rehabilitate them while incarcerated, if they are incorrigible. Why not put those scarce resources where they can do some good? MR. STOLTZE replied he is not sure what side of the issue Representative Berkowitz is on. REPRESENTATIVE BERKOWITZ replied he is taking his argument and using it in response. "First, as Representative James says either these folks are treatable, in which case let's go get them off the get-go. And then you say that they're not treatable. And, I'm saying that if they aren't treatable let's find out so we don't waste the resources in prison and give--put those resources to someone else. But, let's find out as soon as possible. That's the most efficient use of our resources." MR. STOLTZE replied it is impossible to prove whether or not that they are untreatable. We have to go on substantial likelihood. He doesn't think that resources are being wasted because they serve as a public purpose. It is keeping them off of the streets - the higher threshold of a public purpose. Number 1950 REPRESENTATIVE BERKOWITZ replied he is not saying let these guys out. He is saying when they are incarcerated a determination should be made quickly. Would they be amenable to treatment? If the answer is yes, let's give them treatment. If they wash out of the treatment, then let's run them through the sexually violent predator petition. If they run out in the middle of their sentence, let's do it then. Let's not wait until the end of their sentence. Let's not try to put them through a program again. On the other hand, if a sexually violent petition is given at the beginning of a sentence, and it is determined that they are not amenable to rehabilitation, let's not waste resources trying to rehabilitate them. Let's put them towards an individual who deserves to be or can be rehabilitated. Number 2006 MR. STOLTZE stated that might be interpreted to be (indisc.) by the courts. REPRESENTATIVE JAMES stated it seems that in order to meet the criteria established in the court case the money has to be spent for the expensive program whether it works or not. CHAIRMAN GREEN stated, "If you're gonna keep them off the streets." REPRESENTATIVE JAMES stated it seems that in order to meet the requirement we have to send them away for this expensive treatment. CHAIRMAN GREEN asked whether we can continue to have them incarcerated, not necessarily in the slammer, even though there are treatments offered there, but something less than the $400 or $800 type of confinement, which we know isn't going to work anyway. MS. CARPENETI stated it might be hard when a person is convicted to make a determination as to whether or not he is treatable. The bill requires the court, after a person is found to be a sexually violent predator, to determine whether a less restrictive alternative would be safe for the public. CHAIRMAN GREEN asked whether the state of Kansas keeps them in a prison type of environment with medical treatment, or does it actually change departments and keep them strictly as medical patients. MS. CARPENETI replied they cannot be housed with other prisoners. This bill requires that they be housed in a secure facility apart from other people who are serving criminal sentences and apart from people who are being treated for a mental illness. MR. STOLTZE stated, for example, it could actually be within a walled parameter of a correctional facility, but administered by corrections. We offered to contract out because we don't know what type of facility would be needed. We figured it would be better to judge how many people we are going to have then determine what type of facility to build. It could be within Spring Creek or Lemon Creek, for example. It would have to be administered to meet the restrictions provided by in the Supreme Court decision. It could not be administered by the Department of Corrections as spelled out in statute. But, we are not that far along. We don't want to get into legislation for building facilities. Number 2375 WALTER MAJOROS, Executive Director, Alaska Mental Health Board. He is also a prior director of a sex offender treatment program in Juneau, and a prior division director for the Department of Corrections. The board is concerned about the impact of the bill on persons with mental illnesses within the mental health system. It commends the sponsor and the legislature for their concern of protecting the public from sexually violent predators. It is a very serious issue that deserves debate and consideration. The first point from the board's perspective... TAPE 98-86, SIDE A Number 0000 MR. MAJOROS continued. Sexually violent predators have antisocial behavioral disorders or personality disorders that require a very different type of treatment. The criminal justice system is set up for long-term confinement of individuals who are likely to commit violent crimes. The civil system is set up for short-duration treatment needs for people with mental illnesses. There are several mechanisms within the criminal and public safety system now, including sentencing laws, good-time provisions, victim notifications, rigorous prosecutions, sex offender registrations, paroles, probation conditions and intensive supervision - all appropriate mechanisms to address sexually violent predators. The board encourages the committee members to consider and enhance those options to protect the public's safety. The board is also concerned about safeguards for persons with mental illnesses within the public mental health system. One area is to narrowly define the population so that the law only applies to the most dangerous and violent offender. The board is also concerned that the facilities and treatment programs are separate from those for the mentally ill. The board is also concerned about ensuring that the integrity of the mission of the public mental health system is not jeopardized. Lastly, the board is concerned about the treatment approaches. It is important to recognize the significant philosophical difference between criminal offenders and the treatable mentally ill. The board is concerned that resources are not diverted away from treating people with mental illnesses to treating people who are sex offenders. The board asks that the funding be separate and not come from the existing funding for the public mental health system. He has submitted a proposed amendment to achieve a safeguard. It would disallow the treatment of sexually violent predators at Alaska Psychiatric Hospital. The fiscal notes prepared by the Administration already assume that the people would not receive treatment at the Alaska Psychiatric Hospital, and contract it out, but there is nothing to prohibit that treatment from happening at the Alaska Psychiatric Hospital. The board is concerned about taking treatments away from the mentally ill patients. The Alaska Psychiatric Hospital is being downsized within the next couple of years from 79 to 54 beds. Every bed would become precious. He has discussed the issue with Senator Halford, and the mental health industry feels very strongly about it. He has also discussed it with the commissioner of the Department of Health and Social Services. Number 0394 CHAIRMAN GREEN made a motion to adopt Amendment 2. There being no objection, it was so adopted. [AMENDMENT 2 WAS NOT PROVIDED] Number 0440 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference in Anchorage. The agency has submitted a fiscal note that includes the history of this type of law. It is important to point out that this would be the first time in Alaska where people would be confined based on a prediction that they might commit criminal offenses in the future. That type of determination is a real slippery slope and not favored in the law because it potentially violates the right to liberty and due process. He also noted that a task force report from the American Psychiatric Association indicated that these types of determinations should not be made because it distorts the traditional civil commitment process. In addition, the pressure to have commitments of more than five a year might be strong. The definition of mentally ill in the bill is very broad. It means any mental conditions that increases the propensity of (indisc.) to be dangerous to the public's safety. Historically, in 1982 the legislature really changed the not guilty by reasons of insanity laws to make it difficult for that type of defense. The statute referred to in the bill talks about mental illness for people who get out of a commitment. And, the mental health commitment to the Alaska Psychiatric Hospital in Title 47 means an organic or mental disturbance. There are three different definitions of mental illness in statute. The one chosen is the broadest one available. He mentioned that it would be very hard to qualify an attempt to have sexual contact with another person as a sexually violent crime given the types mentioned in statute. In addition, according to the UAA study, over 90 percent of the people who went through treatment did not pass or complete it. There have only been a handful of people who have successfully completed a program over the years. It is not something that is offered routinely in jail. He suggested that the legislature look at funding for that, given the comments made by Representatives James and Berkowitz. It is a very expensive program according to other public defenders in other states because it is a civil trial rather than a criminal trial and experts need to be hired. The agency agrees with the amendment offered by Ms. Carpeneti. The expense of the experts was taken into account in the fiscal note. He lastly noted that it would be in the superior court so the jury size would be 12. Number 0995 CHAIRMAN GREEN stated a 2-percent review would put about three or four people into this category each year. He asked Mr. McCune whether 2 percent is reasonable when dealing with sexual predators. Could it be 50 percent? MR. McCUNE replied that is the agency's fear. The agency used the Department of Law's figure of 2 percent. It is a slippery slope for psychologists and psychiatrists to guarantee someone's safety. Number 1070 REPRESENTATIVE ROKEBERG asked Mr. McCune whether he would use Article I, Section 12, of the state constitution to attack this type of law. MR. McCUNE replied it is a civil law, therefore, it would not apply. In Kansas v. Hendricks due process, ex post-facto, and double jeopardy were attacked. The state would have to argue the purpose of the law. It is likely to lose if it is found to be a law that is to just lock people up. Number 1205 CHAIRMAN GREEN stated, in reference to the jury size, that parties could stipulate to a jury size of less than 12. There could be a smaller jury. MR. McCUNE replied a person faced with a potential lifetime commitment would want a big jury. CHAIRMAN GREEN announced that there are only two members left of the committee. The bill will be put aside at this time. CSSB 219(FIN) AM - OFFICE OF VICTIMS' ADVOCACY CHAIRMAN GREEN announced the next item of business would be CS for SB No. 219(FIN) am, "An Act relating to establishing an office of victims' rights; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; and amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence." CHAIRMAN GREEN called on Brett Huber, staff to Senator Rick Halford, sponsor of the bill. Number 1319 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, noted that $30 million annually is spent either prosecuting or defending criminals. On November 8, 1994, 86 percent of the ballots ratified the victims' rights amendment to the state constitution providing victims with constitutional rights. Senate Bill 219 establishes an office of victims' rights. The legislature tasked the victims' advocate with assisting crime victims and obtaining their rights guaranteed under the constitution and laws of the state with regards to their contacts with state justice agencies. The Senate Judiciary Committee heard heartfelt testimony showing that crime victims are all too often left to deal with the justice system that's heavily weighted to the benefit of the criminal, that's full of legalese and technicalities, and virtually impossible for anyone - other than an attorney - to understand. The passage of SB 219 would provide victims of crime with an advocate that understands and is experienced in criminal law under the justice process. The bill does not preclude the responsibility of the prosecutor's office to fulfill its statutory obligations. The bill does not preclude organizations such as Victims for Justice. Their effectiveness would be boosted by the office of victims' rights. Mr. Huber announced that there is an amendment addressing the concerns of the Department of Law. Number 1426 CHAIRMAN GREEN stated he would gladly introduce the amendment, but there isn't a quorum. He asked Mr. Huber to explain the sections of the bill. MR. HUBER explained that Section 1 of the bill provides a short title. MR. HUBER explained that Section 2 of the bill amends AS 12.55.023(b) allowing the advocates to make statements at the time of sentencing in lieu of the victim. MR. HUBER explained that Section 3 of the bill brings the victims' advocate under the ethics of the legislature. The office was built on the model of the ombudsman. MR. HUBER explained that Section 4 of the bill creates the actual Office of Victims' Rights. It creates a new chapter - AS 24. He mentioned the sections within the new chapter. MR. HUBER explained that Section 5 of the bill provides the option of adopting longevity pay provisions to the advocate. MR. HUBER explained that Section 6 of the bill extends the period for permanent fund dividend ineligibility from one to two years. MR. HUBER explained that Section 7 of the bill provides that the proceeds of the permanent fund dividend may be used to fund the office of victims' rights, subject to legislative appropriation. MR. HUBER explained that Section 8 of the bill exempts regulations promulgated by the office from gubernatorial review. MR. HUBER explained that Section 9 of the bill exempts an advocate from some of the record keeping requirements. MR. HUBER explained that Section 10 of the bill provides a sunset review of agencies to include interaction with the office of victims' rights. MR. HUBER explained that Section 11 names the office as a state agency for the purposes of state publications. MR. HUBER explained that Sections 12 and 13 of the bill provide a notice of the court rule changes. Number 1609 REPRESENTATIVE ROKEBERG asked Mr. Huber whether the office has been funded in the budget or is there a fiscal note. MR. HUBER replied it would take the next legislature to appoint the victims' advocate and establish the office. Although the fiscal notes shows a fiscal year (FY) 1999 cost, there is no actual anticipated cost in 1999. A fiscal note was prepared thinking that there was enough time to pass the bill and appoint the advocate this legislative session. The Senate Finance Committee, although all members were supportive of the bill, was concerned that it is a new general fund draw, which is why there is a tie to the permanent fund dividend forfeiture. If the bill passes, the fiscal note would be subject to the Conference Committee. The office cannot be put together without an advocate appointed. He reiterated, he anticipates no cost for FY 99. Number 1679 CHAIRMAN GREEN asked Mr. Huber, for clarification, whether the permanent fund dividend is the other funding source. MR. HUBER replied, "Correct." CHAIRMAN GREEN asked Mr. Huber whether the permanent fund dividend would amount to almost $500,000. MR. HUBER replied testimony from the Permanent Fund Dividend Division indicated that in the second year of eligibility the revenue stream is estimated at up to $4 million. The funding mechanism more than exceeds the requirements of the bill. Number 1709 REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would work procedurally. MR. HUBER replied procedurally anybody has the opportunity to use the office who feels that his rights as a victim have been denied, providing that it is a felony offense or certain misdemeanor offenses. The bill also provides that the office can establish a priority. The office would have to be able to address those that it can given staff and budget constraints. The office has the power to advocate on behalf of a victim, investigate, consult, publish a report, and make recommendations after a case, similar to the ombudsman. Number 1811 REPRESENTATIVE BERKOWITZ stated prioritization usually raises equal protection and due process problems. He asked Mr. Huber whether there was testimony on that in any of the other committees. MR. HUBER replied the testimony in the other committees has been limited to the fact that the case load is high, especially after some misdemeanor cases were added in an amendment in the Senate Judiciary Committee. It is not the idea that the advocate becomes someone's civil attorney. REPRESENTATIVE BERKOWITZ stated he does not mean that. He is concerned about denying services to a citizen. MR. HUBER replied it is the same for the Office of the Ombudsman. Services would not be denied. The office would be operating inside of staff and budget constraints. REPRESENTATIVE BERKOWITZ stated the office is being predicated on a constitutional basis. The Office of the Ombudsman doesn't have a constitutional basis. MR. HUBER replied the constitutional rights would be the same. As with all other constitutional provisions, there are statutory provisions. The statutory provisions to implement the office allow for prioritizing the cases. It does not diminish a person's constitutional rights. REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would proceed when there are two crimes and one victim wants the service and the other victim doesn't. MR. HUBER replied there is discretion with the court to determine who is a named victim. Alaska Statute 12.55.185 defines a victim as follows: "(16) "victim" means (A) a person against whom an offense has been perpetrated; (B) one of the following, not the perpetrator, if the person specified in (A) of this paragraph is a minor, incompetent, or incapacitated: (i) an individual living in a spousal relationship with the person specified in (A) of this paragraph; or (ii) a parent, adult child, guardian, or custodian of the person; (C) one of the following, not the perpetrator, if the person specified in (A) of this paragraph is dead: (i) a person living in a spousal relationship with the deceased before the deceased died; (ii) an adult child, parent, brother, sister, grandparent, or grandchild of the deceased; or (iii) any other interested person, as may be designated by a person having authority in law to do so." MR. HUBER stated, according to the statutory definition, it boils down to "a" victim. The office would proceed at the discretion of the person who comes forward and asks for assistance. Number 2005 REPRESENTATIVE BERKOWITZ referred to page 8, lines 4 - 7, and asked Mr. Huber whether a law clerk or in-court clerk would be able to be subpoenaed. MR. HUBER replied this section was adopted by the Senate Judiciary Committee at the request of the court system. The court system was concerned about actual judicial decisions coming under question. It did not have a problem with procedures coming under question. Therefore, the language "concerning a judicial action or nonaction" was included. REPRESENTATIVE BERKOWITZ noted that often times a law clerk is intertwined with what the judge is doing. In a way it would backdoor a judge's insulation from the process. MR. HUBER replied the court system offered the amendment and is comfortable with the language. A law clerk could not be questioned about decisions, only procedures. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean the office would have the ability to subpoena members of the prosecution. MR. HUBER replied that's correct. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean the office would have the ability to subpoena law enforcement. MR. HUBER replied that's correct. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the proceeding would be done publicly. MR. HUBER replied the subpoena is for investigating a decision. It would not be subject to a public hearing. The office is barred from releasing confidential information or prereleasible reports before taking the preliminary report to the agency affected, getting their recommendations, and at a later date publishing the final report and recommendations. REPRESENTATIVE BERKOWITZ referred to page 7, line 1, and asked Mr. Huber what procedural safeguards would an individual have, such as an attorney or taking the Fifth Amendment. MR. HUBER replied there is nothing in the bill that would change anybody's constitutional rights to due process. Certainly, one would be able to take the Fifth Amendment, for example. REPRESENTATIVE BERKOWITZ disagreed. This is a huge change in criminal processes. Historically, it has been an adversarial process with an arbitrator. Now, a new agency is being interjected. It could be a good policy call, but needs to be done very carefully. There are a lot of possibilities for unintended consequences. MR. HUBER agreed with Representative Berkowitz. The sponsor has spent a considerable amount of time talking to prosecutors, defense attorneys, the Department of Law, the court system, and agencies tasked to assist victims. The bill has been through the Senate Judiciary Committee and the Senate Finance Committee. Number 2231 REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the bill is modeled after something in other jurisdictions. MR. HUBER replied the office is modeled after the Office of the Ombudsman. He doesn't know of another agency like this in another state. Again, there is the unique constitutional provision adopted in 1984 that promised the voters their rights. Senator Halford believes that it is time to put forth a practical mechanism to help make sure that those rights are implemented. REPRESENTATIVE BERKOWITZ stated, he believes, that there are other states that have victims' rights. Number 2256 REPRESENTATIVE ROKEBERG stated he appreciates the fact that there are constitutional rights for a victim. He is concerned about who in fact would deny these rights. The judge can't be subpoenaed who oversees the rights of the victim as they relate to the process now. MR. HUBER replied the Department of Law and the prosecutors are specifically tasked with some of the provisions that provide the mechanism for making constitutional rights available. He cited, to consult with a prosector, to be involved with the prosecution and investigation of the case, and to be able to make a statement at the time of sentencing as examples. There are statutes that specifically task the prosecutor's office with certain responsibilities under the constitutional amendment. The legislation does not do anything for somebody when the judge or jury made a bad decision. That is what the appellate courts and civil proceedings are for. According to the court system, the majority of the complaints are of the process, and mainly of the prosecutorial side. The bill does not attempt to influence or review specific judicial action. REPRESENTATIVE ROKEBERG referred to a constituent who complained about a prosecutor misdirecting her case and asked Mr. Huber whether this could be used to harass the prosecutor. What's to protect those folks? MR. HUBER replied prosecutorial discretion rests in the prosecutor's office. The Office of the Prosecutor makes determinations all of the time: what level to bring a charge to, what plea bargain is reasonable, how to proceed with an investigation, and how to proceed with a court proceeding, for example. If a person feels that his rights have been abridged, the Office of Victims' Rights is tasked to look at the facts of the case and make a preliminary report to the effected agency. The agency responds to the report and then the advocate produces a final report and recommendation(s). REPRESENTATIVE ROKEBERG asked Mr. Huber whether he is suggesting that a victim can second guess a prosecutor. MR. HUBER replied there are victims now who second guess a prosecutor's decision. Prosecutorial discretion still lies with the prosecutor. There are victims now, however, who are thrown into a system full of legalities that may or may not understand what has been done correctly.... TAPE 98-86, SIDE B Number 0000 MR. HUBER continued. ... the opportunity to have somebody who is familiar with the process, has a criminal law background, and has dealt with these issues before in order to take a reasoned look at the complaint. It may only result in an initial consultation at which time it is determined that no right has been abrogated. Victims now feel that there are certain shortcomings in the judicial system. The most powerful statement in the Senate Judiciary Committee was that the criminal has on his side all of the constitutional protections of somebody who is accused. On the prosecutor's side it is the full force and weight of the state that is bringing the case. The victim, therefore, is left in the shadow of justice. The office allows for an advocate to help a victim through the process, understand the process, and ensure that his or her constitutional rights are protected as the process goes on. Number 0057 REPRESENTATIVE ROKEBERG asked Mr. Huber what is the penalty involved here. MR. HUBER replied the penalty provisions are only for somebody who is obstructing the victims' office from doing its job. It is not set up to punish the prosecutors or courts. It is set up to give the public a better understanding of what happens in the process. REPRESENTATIVE ROKEBERG asked Mr. Huber whether nagging or jawboning is being institutionalized. MR. HUBER replied he believes that many of the issues that the legislature chooses to deal with are ones that are brought forward by constituents that have been put into a situation that they don't want to be put back into. Number 0101 REPRESENTATIVE ROKEBERG asked Mr. Huber what is the remedy. What would happen if there is a finding? MR. HUBER replied ideally the information in the report comes forward and the justice agencies have been told the recommendations. If someone feels that his constitutional rights have been aggrieved, of course, he can bring suit with or without the office. If he feels that the decision was in error, of course, he can appeal it or try to bring civil litigation. Number 0128 REPRESENTATIVE BERKOWITZ asked Mr. Huber to whom would he appeal. MR. HUBER replied appeal was the wrong choice of words. The appeal would be on the side of who is convicted, but certainly civil remedies are something that could be sought. Number 0149 REPRESENTATIVE BERKOWITZ asked Mr. Huber, if the office writes a scathing report about a prosecutor and the prosecutor comes out with contrary evidence, who would he take it to. MR. HUBER replied the prosecutor would take the evidence to his superiors inside the Department of Law. There is no specific penalty for the prosecutor in that position. REPRESENTATIVE BERKOWITZ stated the prosecutor has been publicly sanctioned, but he doesn't have a public avenue to gain his good name back. MR. HUBER stated, before a report is issued in final, the agency is consulted and has the opportunity to answer to the report. Number 0188 REPRESENTATIVE BERKOWITZ stated there used to be something known as the victim witness coordinator in most prosecutors' offices. Usually, they are under funded, but it is their job to explain to victims how the process works and the consequences. He asked Mr. Huber whether he is saying that they don't need to be funded anymore. MR. HUBER replied he is not saying that at all. There are designated victim coordinators in all of the offices of public law with the exception of some satellite offices. The bill does not ask to divert those funds. The bill does not relieve them of any of their statutory responsibilities. It merely provides an entity for a victim to consult with somebody who is versed in the system. Number 0246 REPRESENTATIVE BERKOWITZ stated this is an interesting separation of powers issue. The office would be a legislative entity doing oversight of both the executive and judicial branches. It raises some real questions. If someone was to come to the legislature to determine whether it did a good job putting a bill together, for example, he would feel resentful of someone from the executive or judicial branch looking over his shoulder. He asked Mr. Huber whether the legislature is guilty of the same sin. MR. HUBER replied he doesn't view it that way. He suggested looking at the Office of the Ombudsman, a legislative branch function tasked to do exactly what Representative Berkowitz described with the executive branch. It was not brought forward as a punitive measure. Legislators represent the branch of government that is tasked with representing the people - the branch that brought the House Joint Resolution forward to provide the opportunity to vote on the constitutional amendment. It is the branch whose phone rings first when a constituent is having a problem with a state agency. Number 0322 REPRESENTATIVE ROKEBERG stated he is still not satisfied that there is a remedy. The only remedy that he can think of is a public opinion editorial in the Anchorage Daily News. Number 0354 REPRESENTATIVE JAMES stated it seems that the bill serves the purpose for victims to understand their opportunities. Victims have indicated that they don't have a source, they don't know the legalities, they don't know when to complain, and they don't have anywhere to go unless they hire an attorney. Many victims don't have enough money to hire an attorney. The purpose of the office is for information. It seems simply like an advocacy for those who are vulnerable or disenfranchised and cannot represent themselves just like all the other advocacies in the state. The only time that there would be any punitive kinds of treatment is when there is a case. She sees a real advantage to having the office, but she doesn't know who would pay for it. Number 0467 MR. HUBER replied that is the intent of this legislation. According to the fiscal note, there is a projected $500,000 cost. There is a potential funding source included in the bill with the increased revocation of the permanent fund dividend for convicted felons or multi-misdemeanants. It would appear as an item in the legislative budget and be subject to appropriation. Number 0492 CHAIRMAN GREEN stated there has been indication that this would be a money maker rather than an expense. MR. HUBER stated the folks from the Permanent Fund Dividend Division have indicated that there is the potential for a $4 million revenue stream. REPRESENTATIVE JAMES stated the office is also trying to eliminate people becoming victims and a constitutional amendment has been passed. She thinks it is a good idea. Number 0540 REPRESENTATIVE BERKOWITZ asked Mr. Huber whether he knows quantitatively how often victims' rights are violated. MR. HUBER replied no he does not have any quantitative data. He can give some anecdotal data, however. REPRESENTATIVE BERKOWITZ stated most anecdotal data would not get by an attorney's evaluation. Currently, there are the Victims for Justice and Court Watch in Anchorage that do a very good job of keeping their eyes on things and explaining to victims how the process works. He asked Mr. Huber whether the government is supplanting something that is being done in the private sector. MR. HUBER replied the sponsor has long supported the work of Victims for Justice, which is on record for supporting the bill as a priority in this legislative session. At its level, it believes that having an agency like this would help it with its task, not hinder it. Number 0614 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. It reads as follows: TO: CSSB 219(FIN) am Page 6, line 13, following "Jurisdiction.": Insert "(a)" Page 6, following line 21: Insert a new subsection to read: "(b) The victims' advocate shall exercise (1) the jurisdiction granted under this section in a manner that does not interfere with a criminal investigation or with a criminal prosecution; (2) reasonable care to prevent crime victims and employees of the office of victims' rights from making extrajudicial statements that the victims' advocate is prohibited from making under the Alaska Rules of Professional Conduct." Page 6, lin 26: Delete "Notwithstanding another provision of law, the" Insert "The" Page 6, line 27, following "state": Insert "under art. I, sec. 24, Constitution of the State of Alaska, and AS 12.55.023," Page 7, following line 1: Insert a new subsection to read: "(d) Records obtained by the victims' advocate shall remain in the exclusive custody of the victims' advocate. The victims' advocate may not disclose confidential information to any person." MR. HUBER noted that the amendment was suggested by the Department of Law to meet some of its concerns. The sponsor concurs with the amendment. CHAIRMAN GREEN asked whether there is any objection to Amendment 1. There being no objection, it was so adopted. Number 0636 REPRESENTATIVE ROKEBERG asked Mr. Huber whether there is a House Finance Committee referral. MR. HUBER replied, "Yes." REPRESENTATIVE BERKOWITZ asked Mr. Huber how a victims' advocate would determine whether the exercise of its jurisdiction interferes with a criminal investigation. There are a lot of times when proceedings are cloaked in some degree of secrecy to prevent information from getting out. A non-answer from a prosecutor could jeopardize an ongoing investigation or prosecution. MR. HUBER replied the amendment speaks to the confidentiality of the information gleamed in the investigation and advocacy process. REPRESENTATIVE BERKOWITZ stated he is particularly concerned about cases of domestic violence. The perpetrator often leans on the victim. He is concerned about exacerbating the problem. MR. HUBER replied Representative Berkowitz has a valid concern. The sponsor has addressed it through the process of qualification and appointment of the victims' advocate. REPRESENTATIVE BERKOWITZ replied he is not worried about the Office of Victims' Rights. He is worried about a perpetrator sending a victim into the office demanding not to testify, for example. The office would then go to the prosecutor on behalf of the client and the prosecutor would say, "Tough luck." The office then tells the victim that he has to testify. As a victim's voice, it could be a conduit for further violence to the victim. MR. HUBER replied he understands the point, but he is not certain whether that same eventuality is out there with or without the Office of Victims' Rights. As a victim, to come forward and ask for help is an incredible big step, especially in cases of domestic violence. There are other agencies that deal with these situations, such as non-profit domestic violence shelters. Number 0841 NANCI JONES, Director, Permanent Fund Dividend Division, Department of Revenue, stated she would like to correct the amount estimated. There are no statistics at all to determine how much money would be earned by holding another years dividend. This year the felon ceiling amount that was given to the Office of Management and Budget was $3.9 million. That is funding for the Department of Public Safety, Department of Corrections, Council on Domestic Violence and Sexual Assault, crime victim compensation, and gate fees. In 1995, there was a provision added to include misdemeanants. The division has not been able to collect that data yet because of the reporting period. This bill and SB 274 add an additional pot of dividends. The division is concerned based on the felon program was it first started in 1988. It was challenged and taken all the way to the supreme court. The court ruled that it was a legitimate purpose to withhold the dividend. It was for incarcerated people and the cost of their keep. The division's concern of SB 274 is the parole fee. If they don't pay it we levy it. The provision in SB 219, just like the second part of SB 274, says one is ineligible for the permanent fund dividend if incarcerated in any of two years. One year the division would get it anyway because the person is in jail. Now, the division would get the dividend the second year when the person is out of jail as well. The bill also says that there is a cost for these people being on parole - $3. The dividend is constantly increasing. She wondered who would get the difference. The provisions of the bill say because a person was in jail two years ago, the division has to estimate a dividend for him when normally he would not apply for one. It starts to get into other people's pockets. The division is paying people who otherwise would not be eligible. These people would not otherwise apply for a dividend. The number given to OMB was based on the number of people incarcerated in 1996 and how many of those people did not return to jail in 1997. The Department of Corrections came up with 1,100. The division would have to run the number through an eligibility test then calculate how many would have gotten a dividend had they not been in prison. She is afraid it won't stand up in court. She doesn't think that there is a legitimate purpose for holding dividends from people who are no longer in jail, even if they are on probation. She is also concerned that since they are not in jail and perhaps eligible for a dividend they would not be able to pass it on to pay debts, such as child support. Every year there is about a 3 percent increase in the amount of claims that the Child Support Enforcement Division (CSED) gives to the Permanent Fund Dividend Division. That money would no longer be available to CSED. Number 1183 REPRESENTATIVE BERKOWITZ asked Ms. Jones whether this would also jump ahead of restitution, fines, and civil debts. MS. JONES replied it definitely jumps ahead of everything. These people are now ineligible for a dividend. The division takes the money that they would have gotten and gives it to state government. REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund state government before it would pay victims. MS. JONES replied, "Exactly." REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund state government before it would pay civil creditors. MS. JONES replied everyone. Number 1231 REPRESENTATIVE JAMES asked Ms. Jones whether the money would be set aside whether there is an application filed or not. MS. JONES replied, "Right." The extra provision in the bill means the year that the person is out of jail when the division would not normally have gotten the dividend. This bill would make the person ineligible and instead the division would give the money to state government. REPRESENTATIVE JAMES asked Ms. Jones whether they would have to make an application for the dividend. MS. JONES replied, "No." REPRESENTATIVE JAMES asked Ms. Jones, "Even the year that they're in?" MS. JONES replied, even the year that they are incarcerated, they do not make an application. The Department of Corrections gives the division a list of those who are incarcerated during the qualifying year. The division runs them through the eligibility criteria to determine who would be eligible for a dividend if they were out on the street. That becomes the ceiling from which the Office of Management and Budget (OMB) can budget from. There is a provision that says OMB cannot budget anymore than the ceiling that was budgeted from the previous year, otherwise every use of every dollar given would have to be listed. REPRESENTATIVE JAMES agreed that there are some problems. Number 1390 CHRIS CHRISTENSEN, Staff Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, stated the supreme court takes no position on the legislation. In reference to the question regarding law clerks asked earlier, he had originally drafted an amendment to take care of that problem. Law clerks act as the agent of the judicial officer at the officer's direction. If a law clerk is subpoenaed, it is in essence the same as subpoenaing a judge. It is access to the judge's thought processes. Number 1457 REPRESENTATIVE BERKOWITZ asked Mr. Christensen whether the committee could amend it to fulfill his concern. MR. CHRISTENSEN replied he would appreciate it. Number 1464 REPRESENTATIVE BERKOWITZ made a motion to conceptually incorporate law clerks and in-courts. MR. CHRISTENSEN stated the language that he had originally given was a judicial officer or person working under the direction of a judicial officer. Remember, this is limited to judicial acts, not administrative acts. MR. CHRISTENSEN suggested on page 8, line 4, following "magistrate" add "or a person acting under the direction of a justice, judge, or magistrate". He also suggest on page 8, line 5, following "by" add "or under the direction thereof". Number 1570 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2 suggested by Mr. Christensen. There being no objection, it was so adopted. Number 1605 MR. CHRISTENSEN further stated that the bill is a further implementation of the victims' rights amendment to the state constitution. It does a number of significant things that would probably make the system better for victims. The court system is not concerned about the creation of the Office of Victims' Rights, the authority of an advocate to appear in court in lieu of a victim, the ability of the advocate to obtain court records relating to an offense, the ability of the advocate to investigate the administrative matters. He offers no comment on the sections of the bill that relate to the executive branch. He is concerned about allowing the advocate to issue a report critical of a jury's decision. For example, the constitution requires that a victim be treated with dignity and respect. A jury decides who to believe - a decision that does not involve treating the victim with dignity and respect. The courts have always protected and shielded jurors. The court system is concerned about people being taken to task by a government official for a decision that they have rendered in good faith as part of a jury. MR. CHRISTENSEN further stated that the bill would allow the advocate to issue a decision that in effect says the judge, the court of appeals, or supreme court is wrong. This system of government places final decisions on justice matters in the hands of judicial officers. It is not that way everywhere. There are countries where it is the parliament that acts as a supreme court. This system isn't perfect. A system run by people is not going to be perfect, but it seems to work fairly well. The bill has the effect of turning the system on its head. It says that a mid-level bureaucrat in another branch actually gets the final say on whether or not justice was done in a particular case. He might not have the authority to actually overturn a decision, but he gets to tell the public that the court of appeals is flat out wrong, for example. He does not accept the premise that a single bureaucrat has some greater degree of insight of what the law means than the three members of the court of appeals or the five members of the supreme court. It would have the effect of decreasing the public's confidence in the justice system, not increasing it - the thrust of the bill. Number 1856 REPRESENTATIVE BERKOWITZ asked Mr. Christensen what are the relative abilities of the court as opposed to the victim advocate to go public with the reasons and substance of the decision. MR. CHRISTENSEN replied the Cannons of Judicial Conduct prohibits a judicial officer from commenting publicly on a decision. A decision has to speak for itself. In essence, a judge would be prohibited from defending a decision, other than in the decision itself. REPRESENTATIVE BERKOWITZ stated the judge would be a sitting duck. Number 1907 REPRESENTATIVE JAMES stated it seems that the complaints can only be on the procedures, not the decisions. MR. CHRISTENSEN replied it has been his experience that if there is waffle language in a bill the bureaucrats would fill it. The testimony in the Senate Judiciary Committee from the public indicated that they would like to have somebody else to say the decision was wrong and justice was not done. For better or worse, the judicial branch is suppose to have the final say in whether or not justice was done in a case. People may exercise their First Amendment rights to comment on it, but there shouldn't be a government office charged by statute with interjecting his or her judgement into the basic question of whether or not justice was done. This is a small piece of what the advocate would do, but a significant piece. He thinks that about 95 percent of what the advocate would do would be things like oversight of the rights guaranteed by statute or helping the person in court, not second guessing the decision. Last year, there was somewhere between 3,000 and 3,500 felonies filed in the state and 20,000 misdemeanors, of which, about 85 percent end up pleading guilty, and less than 10 percent go to trial. He expects at least half of those that go to trial to be convicted. It is a fairly size of folks who are unhappy with their results. He expects that if there is an avenue to address their unhappiness they would take it. Number 2059 CHAIRMAN GREEN stated the bureaucrat's decision would be an opinion, not a law. MR. CHRISTENSEN stated it would be an opinion. He could not overturn a decision, but he would be charged by statute with saying that the court is wrong when under the constitution it is the court who is the final arbiter of the statute. CHAIRMAN GREEN asked Mr. Christensen whether it would be any different than an attorney filing an appeal. An appeal is also saying that the court is incorrect. MR. CHRISTENSEN replied that is the method that the system provides. This is a government official given a charge very similar to the court's charge. In essence, he would supersede the courts because he would get the final say on whether or not justice was really done. Number 2146 REPRESENTATIVE JAMES asked Mr. Christensen where it says that. MR. CHRISTENSEN replied there is not a specific section. If the bill is read in its whole, it would be within an advocate's jurisdiction. He had submitted an amendment to the Senate Judiciary Committee and would provide a copy of it to the House Judiciary Committee as well. It reads as follows: TO: CSSB 219(FIN) am Page 6, line 19, insert following "state.": "The victims' advocate may not investigate a complaint regarding a judicial act taken or decision rendered by a judicial officer of a jury." REPRESENTATIVE ROKEBERG noted page 8, line 29. Number 2205 MR. HUBER stated he does not know of any place in this bill that the advocate could supplant a judicial decision of a judge. This report is only if the victim's rights in the opinion of the court with the response of the justice agency says a constitutional right has been denied. It is not the intent of the legislation to say that it is the advocate's decision instead of the judge's. Number 2276 MR. CHRISTENSEN replied he appreciates the intent of the bill. Judges make evidentiary rulings all the time. Some of them may go to matters in the constitution - the right to be treated with fairness and dignity. A jury's decision may turn on one particular evidence of ruling made by a judge. An advocate's judgement would supplant that ruling with his judgement as to whether that evidentiary language on which the case hinged was done correctly or not. Number 2324 REPRESENTATIVE BERKOWITZ stated the opportunity for consultation seems hollow as far as the judiciary is concerned. He does not know of an avenue for a judge to reply back to a victim's complaint. Number 2386 REPRESENTATIVE ROKEBERG asked Mr. Christensen whether the presiding judge in the judicial district can make some comments to the public. MR. CHRISTENSEN replied judges are prohibited from commenting on any matters that have been or coming before the court. A decision has to speak for itself. It is something that happens in contested judicial elections, which is why they have caused a lot of problems. Number 2444 REPRESENTATIVE ROKEBERG commented that he would like to see what was rejected in the Senate. Number 2450 REPRESENTATIVE JAMES noted she would like to see what was rejected in the Senate too. It seems that there might be some language to ensure what Mr. Christensen is talking about doesn't happen. She doesn't see the problem, but if there is one it should be looked at... TAPE 98-87, SIDE A Number 0004 REPRESENTATIVE BERKOWITZ stated it is not going to carry the weight of a judicial opinion, but it would carry some weight. Anytime there is a published opinion by a state agency or attorney it is low in the precedential value, but it carries some weight. Number 0036 REPRESENTATIVE JAMES stated it seems that the purpose of the bill is advocacy for victims. If a report is due, it is due to the victim. She doesn't understand making a report on screw ups by the process. Certainly, there are screw ups on the decision when it has violated a right in some way. Number 0115 CHAIRMAN GREEN asked Mr. Huber whether the language would alter the concept of the sponsor of what the office would do. MR. HUBER replied the amendment was discussed in the Senate Judiciary Committee and the sponsor did not support it. He stated he is confused by Mr. Christensen's testimony because the judge makes the decision. He agrees that the decision should stand on its own face, but the court just like the legislature serves the public. He is not certain of the fear of the public taking a look at how the court system works. Aren't all branches of the government subject to scrutiny by the public? he asked. Number 0204 CHAIRMAN GREEN stated the issue is not the public. The issue is the bureaucracy. An individual complaint would not have the same weight as a bureaucracy. MR. HUBER stated the reports are an opportunity to review the problems. It would be valuable information to the legislature to determine whether they are reoccurring problems that need a statutory fix, for example. Number 0277 REPRESENTATIVE ROKEBERG stated the sponsor is representing the denial of constitutional rights. It does not speak to decisions. There is no denial of constitutional rights as to decisions. He is troubled by the very broad term "judicial act" in the bill and asked Mr. Christensen to respond to his concern. Number 0326 MR. CHRISTENSEN replied the term "judicial act" has been defined extensively in both federal and state case law. It is used to distinguish it from administrative acts. There is a formula used to determine when a judge is acting judicially versus administratively. The formula has been set by the Supreme Court of the United States and the Alaska Supreme Court. He cited moving a court room without telling so that court dates are missed. That is an administrative decision, not a judicial act. REPRESENTATIVE ROKEBERG asked Mr. Christensen whether a constitutional denial could be a judicial act. MR. CHRISTENSEN replied judicial acts are repealable. The bill says that the final decision on the constitutionality of the law rests in the hands of the advocate. He might not be able to act on it, but he can make a public statement. Number 0474 REPRESENTATIVE BERKOWITZ noted that an intentional interference of a constitutional right is a misdemeanor. If a victim feels that a judge has intentionally abrogated his or her rights, the victim can bring a criminal complaint forward under the normal process of a criminal charge. That protection is already there for victims. Number 0517 REPRESENTATIVE JAMES asked whether a victim would have to create a case to repeal an action to challenge a decision. MR. CHRISTENSEN replied the prosecution would repeal a case. Number 0560 REPRESENTATIVE ROKEBERG stated after hearing the arguments, he is still not convinced about the term "judicial act." He thinks it is too broad. Unless there is another term, he would amend it out. Number 0597 MR. HUBER stated the concern of the term "judicial act" was also brought up in the Senate Judiciary Committee. Another term is "or decision rendered" or "may not investigate." It is not talking about investigating a decision, but how broad it "may not investigate" if a decision has been rendered. Does that mean if a decision has been rendered that all investigatory authority is precluded? MR. CHRISTENSEN replied that is not the intent. Number 0640 REPRESENTATIVE JAMES stated an advocate can't make a report if the advocate can't investigate a complaint first. Yet there is another avenue for a victim - the appeals process. She wondered whether an advocate would need to investigate a complaint in order to get to that decision or just make a complaint. Number 0721 MR. HUBER noted that the sponsor's office would be more than happy to work with Mr. Christensen further on this issue. The bill has another committee of referral. If the amendment had been brought to the sponsor yesterday rather than this committee he would have been willing to run it by the bill drafters and discuss the issue with Mr. Christensen. CHAIRMAN GREEN asked Mr. Christensen whether the concern is about the investigation or making it public. MR. CHRISTENSEN replied once a report is released there is no way to guarantee that it would not be made public. CHAIRMAN GREEN asked Mr. Christensen whether there could be some type of confidentiality between the advocate and victim like an attorney-client relationship. MR. CHRISTENSEN replied while there is a way to keep the advocate from releasing things there is no way to keep the victim from publicly releasing things. He would fully expect, however, the victim to say publicly, "this is what the advocate says." CHAIRMAN GREEN said, "Well no. I think that you--maybe the public that way, but it certainly--if you prohibit the investigation that's a lot different than saying you're not going to make it public. Now, I understand your problem with the victim making it public, but to prohibit the advocate from even investigating these things it seems like it--it--it in effect makes (indisc.)." REPRESENTATIVE BERKOWITZ stated there is an interesting ethical dilemma for the advocate who is an attorney. As an attorney representing the victim, he has a certain set of ethical responsibilities. He cited a report as an example. The victim asks for a report, the courts give it to the victim, but it can't be divulged. The victim says he wants to divulge it. What does the lawyer do? he asked. REPRESENTATIVE ROKEBERG stated a dentist should be hired instead to solve the problem. REPRESENTATIVE BERKOWITZ stated according to the bill a lawyer has to be hired. REPRESENTATIVE ROKEBERG replied that's the problem. Number 0958 REPRESENTATIVE JAMES suggested changing the language of the amendment to read as follows: "The victims' advocate may not investigate or challenge a decision rendered by a judicial officer or a jury." REPRESENTATIVE JAMES noted it would delete the complaint regarding a judicial action. There is another avenue to pursue when a constitutional right has been violated. She is concerned about the resulting reports. They seem to be reports on procedures, not decisions. The decision rendered by a judicial officer should not be investigated or challenged. CHAIRMAN GREEN wondered whether it would give rise to a problem with the concept of the bill. If it can't be challenged. Number 1036 MR. HUBER stated certainly the intent is for a victim or somebody involved in the proceeding to go out and say whatever he or she wants to about a decision. The concern, therefore, is about the bureaucracy, the power of the office questioning the judicial authority or a final decision. He suggested allowing the advocate to investigate a complaint, but disallow publishing the specifics that deal with the decision rendered by the judicial officer or jury in the report. Thus, a state agency would not publicly challenge a decision that has to stand on its face. It would leave the court free to make a decision without an agency's challenge, and a victim free to complain. Number 1108 REPRESENTATIVE ROKEBERG suggested adopting the amendment and moving the bill to the House Finance Committee given the time of day. If there isn't satisfaction, it can be killed there. The committee needs to move along and take up other bills. Number 1155 REPRESENTATIVE JAMES stated she would like to include this amendment before moving it forward and take the word of Mr. Huber who said the sponsor would work with Mr. Christensen. This is a judicial issue and needs to be fixed in the House Judiciary Committee. CHAIRMAN GREEN noted that there are three versions of the amendment. Number 1185 REPRESENTATIVE BERKOWITZ noted that he likes the first version. REPRESENTATIVE JAMES agreed to use the first one. Number 1194 CHAIRMAN GREEN called it repugnant for a finance group to deal with a judiciary issue. Number 1207 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3. It reads as follows: Page 6, line 19, insert following "state.": "The victims' advocate may not investigate or challenge a decision rendered by a judicial officer or a jury." Number 1240 MR. CHRISTENSEN stated the decision portion of this amendment is significantly more important than the judicial act. The decision is the ultimate finding on the case. Number 1256 CHAIRMAN GREEN asked whether there is any objection to Amendment 3. There being no objection, it was so adopted. Number 1280 REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as amended, from the committee with individual recommendations. CHAIRMAN GREEN noted there is still one more amendment. There has been a request to change "five" years to "three" years on page 4, lines 1 and 4 (Amendment 4). Number 1324 MR. HUBER stated five years comes from the qualifications for being a judge. REPRESENTATIVE ROKEBERG noted that the bill does not hire a judge. REPRESENTATIVE BERKOWITZ stated there is no objection. CHAIRMAN GREEN asked whether there is any objection to adopting Amendment 4. There being none, it was so adopted. Number 1360 REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as amended, from the committee with individual recommendations and the attached generous fiscal note. UNIDENTIFIED SPEAKER objected. A roll call vote was taken. Representatives Berkowitz voted against the motion. Representatives Rokeberg, James and Green voted in favor of the motion. Representatives Bunde and Porter were absent. The motion failed. CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS Number 1427 CHAIRMAN GREEN announced the committee would take up SB 216 again in order to consider an amendment suggested earlier by the Department of Law. CHAIRMAN GREEN announced Amendment 3 is before the committee. It reads as follows: "(c) If the state files a petition under AS 47.30.816 - 47.30.824 to commit a person who has been charged with a sexually violent offense and been found incompetent to be tried for the offense, the trier of fact, in conjunction with the commitment proceeding, will make a determination beyond a reasonable doubt, whether the person committed the offense charged. The finding that the person committed the offense may not be used for any other purpose than for consideration of commitment. If the trier of fact finds that the person committed the offense, the trier of fact may proceed to determine whether the person is a sexually violent predator under this section." Number 1463 MR. STOLTZE stated the amendment is the language proposed by the Department of Law. It deletes the current subsection (c) and replaces it with a new subsection on page 5, lines 6 - 24. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there is a House Finance Committee referral. MR. STOLTZE replied, "Yes." Number 1562 REPRESENTATIVE JAMES made a motion to adopt Amendment 3. There being no objection, it was so adopted. Number 1634 REPRESENTATIVE ROKEBERG referred to the study provided to the committee members from the Department of Corrections and asked what it means in terms of Title 47 and the bill. Would it lower the numbers? Number 1706 MR. RICHARDS replied the study was conducted anticipating a proposed bill during the interim by Representative Joe Ryan. It was a broader bill. Number 1725 REPRESENTATIVE ROKEBERG asked Mr. Richards whether the numbers would be fewer than what is in the study. MR. RICHARDS replied, "Correct." REPRESENTATIVE ROKEBERG asked Mr. Richards whether he has provided the study to the sponsor of the bill. MR. RICHARDS replied he has testified on it at the various committee hearings on the numbers. He is not sure whether it has been provided to the sponsor. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether he has ever seen the study before. MR. STOLTZE replied that he has heard the references, but he has not seen the document. Number 1747 REPRESENTATIVE ROKEBERG asked Mr. Richards to provide a nutshell analysis of the study. Number 1754 MR. RICHARDS replied the study was done to evaluate the sex offender treatment program at the Highland Mountain Correctional Center to find out its effectiveness. He is not an expert on the analysis of the study, but in a nutshell it says the treatment is effective for those who participate in the program. The longer one stays in the program there is a longer period of time before a reoffense. Number 1796 REPRESENTATIVE ROKEBERG stated this exposes the potential for a higher fiscal note. He also mentioned his concerns of the timing of bringing a civil commitment into a criminal type of activity. Nevertheless, he would vote to move the bill out of the committee. Number 1823 CHAIRMAN GREEN stated that he shares the same concern regarding the fiscal note. REPRESENTATIVE ROKEBERG stated it is a problem for the House Finance Committee. CHAIRMAN GREEN agreed. Number 1830 REPRESENTATIVE JAMES stated that she was surprised and encouraged about the findings in the study. Those who were in treatment longer tended to last longer in the community without reoffense. Those who completed all stages of treatment to the advanced stage had a zero reoffense rate for sexual offenses, including rapists. The study supports the concern of waiting for a person's term to be just about up before determining whether the person is a sexually violent predator. It seems that chances of not being committed as a predator would be better by going through treatment up to the advanced stages. Number 1881 REPRESENTATIVE BUNDE made a motion to move CSSB 216(JUD), as amended, from the committee with individual recommendations. REPRESENTATIVE BUNDE noted that the committee had asked for information on the recidivism rate. It got some information from the study, but no information on the recidivism rate. It would be very difficult to fund the bill given the fact that the sponsor of the bill is putting a limit on how much money could be spent from the constitutional budget reserve. It might be difficult to have it both ways. He noted he would support to move the bill out of the committee. CHAIRMAN GREEN stated the bill sounds great if the state can afford it. But, the state can not afford it either. It is something that would have to be reviewed in the next committee of referral. CHAIRMAN GREEN asked whether there is any objection to the motion to move the bill out of the committee. There being no objection, HCS CSSB 216(JUD) was so moved from the House Judiciary Standing Committee. ADJOURNMENT Number 1998 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 7:20 p.m.
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