Legislature(1999 - 2000)
04/14/1999 01:20 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 1999
1:20 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
BOARD OF GOVERNORS OF THE ALASKA BAR
Barbara Miklos - Anchorage
- CONFIRMATION ADVANCED
HOUSE BILL NO. 34
"An Act relating to the crime of misprision of a crime against a
child."
- MOVED NEW CSHB 34(JUD) OUT OF COMMITTEE
* HOUSE BILL NO. 99
"An Act relating to sexual assault and the definitions of 'sexual
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."
- MOVED HB 99 OUT OF COMMITTEE
* HOUSE BILL NO. 75
"An Act relating to murder; authorizing capital punishment,
classifying murder in the first degree as a capital felony, and
allowing the imposition of the death penalty when certain of those
murders are committed against children; establishing sentencing
procedures for capital felonies; and amending Rules 32, 32.1, and
32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210,
and 212, Alaska Rules of Appellate Procedure."
- HEARD AND HELD
CS FOR SENATE BILL NO. 57(FIN)
"An Act relating to vulnerable adults; and providing for an
effective date."
- MOVED HCS CSSB 57(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 147
"An Act relating to vulnerable adults; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
* HOUSE BILL NO. 176
"An Act relating to attorney fees and costs and the granting of
public interest litigant status in proceedings related to
administrative actions and inactions; and amending Rules 79 and 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 34
SHORT TITLE: REPORTING CRIMES AGAINST CHILDREN
SPONSOR(S): REPRESENTATIVES(S) DYSON
Jrn-Date Jrn-Page Action
1/19/99 27 (H) PREFILE RELEASED 1/8/99
1/19/99 27 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 27 (H) JUDICIARY
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
4/07/99 (H) HEARD AND HELD/SUBCOMMITTEE
4/07/99 (H) MINUTE(JUD)
4/08/99 (H) JUD AT 1:00 PM CAPITOL 120
4/08/99 (H) HEARD AND HELD
4/08/99 (H) MINUTE(JUD)
4/09/99 (H) JUD AT 1:00 PM CAPITOL 120
4/09/99 (H) MOVED CSHB 34(JUD) OUT OF COMMITTEE
4/09/99 (H) MINUTE(JUD)
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 99
SHORT TITLE: SEXUAL ASSAULT: VICTIM IN STATE CUSTODY
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
2/19/99 255 (H) READ THE FIRST TIME - REFERRAL(S)
2/19/99 255 (H) JUDICIARY
2/19/99 255 (H) 5 ZERO FNS (ADMINISTRATION, COR,
DHSS, LAW, DPS)
2/19/99 256 (H) GOVERNOR'S TRANSMITTAL LETTER
3/29/99 (H) JUD AT 1:00 PM CAPITOL 120
3/29/99 (H) SCHEDULED BUT NOT HEARD
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
4/07/99 (H) SCHEDULED BUT NOT HEARD
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 75
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER
SPONSOR(S): REPRESENTATIVES(S) MASEK
Jrn-Date Jrn-Page Action
2/03/99 131 (H) READ THE FIRST TIME - REFERRAL(S)
2/03/99 132 (H) JUDICIARY, FINANCE
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
4/14/99 (H) HEARD AND HELD
4/14/99 (H) MINUTE(JUD)
4/15/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 57
SHORT TITLE: CARE FOR VULNERABLE ADULTS
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
2/08/99 186 (S) READ THE FIRST TIME - REFERRAL(S)
2/08/99 186 (S) HES, JUD
3/03/99 (S) HES AT 1:30 PM BUTROVICH ROOM 205
3/03/99 (S) HEARD AND HELD
3/03/99 (S) MINUTE(HES)
3/08/99 (S) HES AT 1:30 PM
3/08/99 (S) HEARD AND HELD
3/08/99 (S) MINUTE(HES)
3/15/99 (S) HES AT 1:30 PM BUTROVICH 205
3/15/99 (S) MOVED OUT OF COMMITTEE
3/15/99 (S) MINUTE(HES)
3/16/99 562 (S) HES RPT 2DP 3NR
3/16/99 562 (S) DP: MILLER, WILKEN; NR: PETE KELLY,
3/16/99 562 (S) PEARCE, ELTON
3/16/99 562 (S) ZERO FISCAL NOTE (ADMINISTRATION)
3/24/99 (S) JUD AT 1:30 PM BELTZ 211
3/24/99 (S) MOVED CSSB 57(JUD) OUT OF COMMITTEE
3/24/99 (S) MINUTE(JUD)
3/29/99 719 (S) JUD RPT COMMITTEE SUBSTITUTE 1DP
3NR NEW TITLE
3/29/99 719 (S) DP: TAYLOR; NR: HALFORD, ELLIS,
DONLEY
4/06/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
4/06/99 (S) MINUTE(FIN)
4/06/99 794 (S) ZERO FISCAL NOTE (ADMINISTRATION)
3/29/99 719 (S) RPT RECOMMENDED FURTHER REFERRAL TO
FIN
3/29/99 719 (S) ADDITIONAL REFERRAL TO FIN
4/07/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/07/99 (S) MOVED COMMITTEE SUBSTITUTE (FIN) OUT
OF COMMITTEE
4/07/99 804 (S) FIN RPT COMMITTEE SUBSTITUTE 8DP
1NR SAME TITLE
4/07/99 804 (S) DP: TORGERSON, PARNELL, PHILLIPS,
GREEN,
4/07/99 804 (S) ADAMS, LEMAN, WILKEN, PETE KELLY;
4/07/99 804 (S) NR: DONLEY
4/07/99 804 (S) PREVIOUS ZERO FN (ADMINISTRATION) #2
4/08/99 (S) RLS AT 11:40 AM FAHRENKAMP 203
4/08/99 (S) MINUTE(RLS)
4/09/99 846 (S) RULES TO CALENDAR 4/9/99
4/09/99 850 (S) READ THE SECOND TIME
4/09/99 850 (S) FIN COMMITTEE SUBSTITUTE ADOPTED
UNAN CONSENT
4/09/99 850 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/09/99 850 (S) READ THE THIRD TIME CSSB 57(FIN)
4/09/99 851 (S) PASSED Y19 N- E1
4/09/99 851 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/09/99 856 (S) TRANSMITTED TO (H)
4/12/99 722 (H) READ THE FIRST TIME - REFERRAL(S)
4/12/99 723 (H) JUD
4/14/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BARBARA MIKLOS, Appointee
to the Board of Governors of the Alaska Bar
3208 Greenland Drive
Anchorage, Alaska 99517
Telephone: (907) 272-4812
POSITION STATEMENT: Testified as nominee to the Board of Governors
of the Alaska Bar.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Presented the new version of HB 34.
MARGOT KNUTH, Assistant Attorney General
Office of the Commissioner-Juneau
Department of Corrections
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-4338
POSITION STATEMENT: Testified on HB 99.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence
and Sexual Assault
Department of Public Safety
130 Seward Street, Room 209
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Testified on HB 99.
ROBERT BUTTCANE, Juvenile Probation Officer
Youth Corrections
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-2212
POSITION STATEMENT: Testified in support of HB 99.
REPRESENTATIVE MASEK
Alaska State Legislature
Capitol Building, Room 432
Juneau, Alaska 99801
Telephone: (907) 465-2679
POSITION STATEMENT: Testified as Sponsor of HB 75.
REVEREND JAY OLSON KETCHUM
3820 Delwood Place
Anchorage, Alaska 99504
Telephone: (907) 338-0213
POSITION STATEMENT: Testified in opposition to HB 75.
DALE KELLEY, Executive Director
Alaskans Against the Death Penalty;
Council Director
United Methodist Church in Alaska
4451 DeArmoun Road
Anchorage, Alaska 99516
Telephone: (907) 348-6056
POSITION STATEMENT: Testified in opposition to HB 75.
WILLIAM DEWEY, Attorney
1101 West 7th Avenue
Anchorage, Alaska 99501
Telephone: (907) 276-3299
POSITION STATEMENT: Testified in opposition to HB 75.
FATHER LEO WALSH, Associate Pastor
St. Anthony's Catholic Church;
President, Innerfaith Council of Anchorage
825 South Klevin
Anchorage, Alaska 99508
Telephone: (907) 333-5544
POSITION STATEMENT: Testified in opposition to HB 75.
RICH CURTNERS, Attorney
24506 Teal Loop
Chugiak, Alaska 99567
Telephone: (907) 688-1002
POSITION STATEMENT: Testified that he believed HB 75 will cost
Alaska a lot of money which could be better
spent to protect children.
AMY MENARD, Attorney
1029 West 3rd Avenue, Number 500
Anchorage, Alaska 99501
Telephone: (907) 279-4506
POSITION STATEMENT: Testified in opposition to HB 75.
MARY GEDDES
2521 St. Elias Drive
Anchorage, Alaska 99517
Telephone: (907) 248-3710
POSITION STATEMENT: Testified in opposition to HB 75.
LISA RIEGER, Attorney
3318 Illiamna Avenue
Anchorage, Alaska 99517
Telephone: (907) 248-5472
POSITION STATEMENT: Testimony in opposition to HB 75 read into the
record by Ms. Geddes.
ARTHUR CURTIS, Minister
Unitarian Universalist Fellowship
1605 Sitka, Number 203
Anchorage, Alaska 99501
Telephone: (907) 272-7360
POSITION STATEMENT: Testified in opposition to HB 75.
DENNIS HOLWAY, Pastor
Turnagain United Methodist Church
3300 West Northern Lights Boulevard
Anchorage, Alaska 99517
Telephone: (907) 243-3963
POSITION STATEMENT: Testified in opposition to HB 75.
CHARLES CAMPBELL
3020 Douglas Highway
Juneau, Alaska 99801
Telephone: (907) 586-5793
POSITION STATEMENT: Testified in opposition to HB 75.
PHILLIP PALLENBERG
718 5th Street
Juneau, Alaska 99801
Telephone: (907) 586-1180
POSITION STATEMENT: Testified in opposition to HB 75.
HUGH FLEISCHER, Executive Board
Alaska Christian Conference;
Interfaith Council of Anchorage;
Alaskans Against the Death Penalty
310 K. Street, Number 200
Anchorage, Alaska 99501
Telephone: (907) 264-6635
POSITION STATEMENT: Testified in opposition to the death penalty.
IAN OLSON
PO Box 80280
Fairbanks, Alaska 99708
Telephone: (907) 457-4426
POSITION STATEMENT: Discussed the need to be proactive not
reactive as is HB 75.
CAMI MOLINE
12579 Auke Nu Drive
Juneau, Alaska 99801
Telephone: (907) 790-5553
POSITION STATEMENT: Testified that HB 75 should be put aside.
ELLEN CAMPBELL
3020 Douglas Highway
Juneau, Alaska 99801
Telephone: (907) 586-5793
POSITION STATEMENT: Discussed life as a God's gift.
SHEILA PETERSON, Legislative Assistant
to Senator Gary Wilken
Alaska State Legislature
Capitol Building, Room 514
Juneau, Alaska 99801
Telephone: (907) 465-3709
POSITION STATEMENT: Presented sponsor statement for SB 57.
ACTION NARRATIVE
TAPE 99-30, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Murkowski and Croft.
Representatives James and Kerttula arrived at 1:24 p.m.
CONFIRMATION HEARING: BOARD OF GOVERNORS OF THE ALASKA BAR
CHAIRMAN KOTT announced the first order of business is the
confirmation hearing of Barbara Miklos to the Board of Governors of
the Alaska Bar.
Number 0115
BARBARA MIKLOS, Appointee to the Board of Governors of the Alaska
Bar, testified via teleconference from Anchorage. She informed the
committee that if she was reappointed it would be her second term,
as she has already served three years on the board. The most
important thing she brings to the board is that she has lived in
Alaska for many years - Anchorage, Fairbanks and Southeast. She
also has traveled all over the state, giving her exposure to many
areas and their issues.
Number 0222
REPRESENTATIVE ROKEBERG asked Ms. Miklos whether she feels she is
capable of serving as both appointee to the board and acting
director of the Child Support Enforcement Division [Department of
Revenue], given the significant workload and pressures that come
from being a director.
MS. MIKLOS replied that she feels capable. She pointed out that
she did miss the last board meeting due to job pressures, but
within the last three years she has missed very few meetings. She
feels that she has dedicated the time to the board that it deserves
without her job suffering. She added that being an appointee to
the board enriches her life as opposed to detracting from it.
Number 0311
REPRESENTATIVE ROKEBERG asked Ms. Miklos how often the board meets.
MS. MIKLOS replied it meets quarterly and the meetings are either
one or two days long. She said that she has a couple of projects
in between meetings, but that the primary time spent on the board
is at the meetings.
Number 0419
REPRESENTATIVE GREEN moved to forward the name of Barbara J. Miklos
to the Board of Governors of the Alaska Bar. There being no
objection, it was so ordered.
HB 34 - REPORTING CRIMES AGAINST CHILDREN
CHAIRMAN KOTT announced the next order of business is HB 34, "An
Act relating to the crime of misprision of a crime against a
child."
REPRESENTATIVE ROKEBERG made a motion to rescind the prior action
of reporting CSHB 34(JUD) out of the committee. There being no
objection, it was so moved and before the committee again.
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed
committee substitute for HB 34, version 1-LS0241\H, as a work
draft. There being no objection, it was so moved.
Number 581
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, explained that in a sort of ad hoc
subcommittee meeting with Representative Kerttula and Jerry
Luckhaupt [Attorney, Legislative Legal Counsel, Legislative Legal
and Research Services, Legislative Affairs Agency] there was some
discussion on the problem with the word "attempt." Mr. Luckhaupt
mentioned that on page 1, line 10, where it reads, "or a felony
attempt to commit one of those crimes," there needs to be more
clarification.
REPRESENTATIVE CROFT pointed out that in some cases attempt, being
that it is one level lower than the crime, might actually be a
misdemeanor.
MR. WINCHELL responded that within the purview of misprision,
Representative Kerttula and Mr. Luckhaupt wanted it to be a
felonious attempt, and wanted it to be clear so there aren't any
problems in a prosecution, for example.
REPRESENTATIVE ROKEBERG made a motion to move the proposed
committee substitute for HB 34 from the committee with individual
recommendations and the attached zero fiscal note(s). There being
no objection, the new CSHB 34(JUD) was so moved from the House
Judiciary Standing Committee.
CHAIRMAN KOTT called for a brief at-ease at 1:29 p.m. and called
the committee back to order at 1:31 p.m.
HB 99 - SEXUAL ASSAULT: VICTIM IN STATE CUSTODY
CHAIRMAN KOTT announced the next order of business is HB 99, "An
Act relating to sexual assault and the definitions of 'sexual
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."
Number 0746
MARGOT KNUTH, Assistant Attorney General, Office of the
Commissioner-Juneau, Department of Corrections (DOC), came before
the committee to testify. She explained that HB 99 would make it
a criminal felony for a correctional officer to either engage in
sexual penetration or sexual contact with an inmate. There is a
misperception among the rest of the states that Alaska already
prohibits this conduct, but it does not, which puts Alaska in a
handful of jurisdictions that have not done so. There is a
resolution that all states should prohibit this conduct, from
January 17, 1999, by the Association of State Correctional
Administrators, which had unanimous consent; 38 in favor and zero
opposed. There is also a congressional measure that was introduced
this session that would reduce a state's eligibility for sharing of
federal funds, if they do not have a provision like this as a part
of their criminal code. She feels that prohibiting such conduct is
good public policy, because there can be no such thing as
consensual sex with an inmate. There would always be a disparity
in power positions between a correctional officer and an inmate.
Often times, inmates feel that there may be benefits or favors if
they have sex with a correctional officer. The inmates also feel
that they would not be believed if they report an incident.
MS. KNUTH further stated that Alaska does not have a significant
problem with this type of conduct, except for on rare occasions.
The bill is more of a preventative measure, for good public policy,
and to keep Alaska from jeopardizing any federal revenue sharing.
Number 0963
REPRESENTATIVE GREEN wondered whether the states that have gone
from not having it as a penalty to having it as a penalty have
experienced any inmates claiming misconduct based solely on the
fact that they didn't like a correctional officer.
MS. KNUTH responded that the circumstance Representative Green is
referring to has not occurred.
REPRESENTATIVE ROKEBERG wondered whether Ms. Knuth was informing
the committee that the legislature did not act after the Wionna
Fletcher incident.
Number 1066
MS. KNUTH stated that consensual sexual relations are not
criminalized in Alaska currently.
REPRESENTATIVE ROKEBERG asked Ms. Knuth whether nonconsensual
sexual relations are criminal in Alaska.
MS. KNUTH replied that sexual assault in the first, second, and
third degrees would all apply against nonconsensual sexual contact.
REPRESENTATIVE ROKEBERG wondered whether the bill really speaks to
consensual sexual relations.
MS. KNUTH replied it speaks to reportedly consensual relations.
REPRESENTATIVE ROKEBERG referred to page 1, line 12, of the bill,
where it states, "or other placement designated by the commissioner
of the Department of Corrections," and asked Ms. Knuth whether that
would include an employee of a community residential center (CRC).
Number 1139
MS. KNUTH replied she believes it would extend to CRC placements.
REPRESENTATIVE ROKEBERG requested clarification on whether a CRC
facility is by definition a state correctional facility.
MS. KNUTH clarified that it is.
REPRESENTATIVE ROKEBERG wondered whether "other placement" was a
catch-all term in case the offender was someplace else.
MS. KNUTH responded that the language in the bill is the same
language that is used in the statute referencing where prisoners
can be placed. That is why it was chosen when drafting it. She
noted that she would be willing to find that information for him.
REPRESENTATIVE ROKEBERG indicated that he just wanted to make sure
that the other contracted placements were included.
MS. KNUTH replied that they are.
Number 1213
REPRESENTATIVE ROKEBERG referred to page 2, Section 3, paragraph
(3), where it states, "other person committed to the custody of the
Department of Health and Social Services under AS 47.10 or AS
47.12," and asked whether he is correct in assuming that the
language refers to juvenile correction facilities.
MS. KNUTH responded that is correct. She noted that Robert
Buttcane from the Department of Health and Social Services (DHSS)
is here to speak on behalf of the department. The DHSS and DOC are
trying to make sure that the provisions are parallel so that the
same protection afforded to adults who are in custody is also
afforded to juveniles who are in the state's custody.
REPRESENTATIVE ROKEBERG wondered whether the juvenile correction
facilities are limited to 19 years of age.
MS. KNUTH deferred the question to the Department of Health and
Social Services.
Number 1305
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault (ANDVSA), Department of Public Safety, came before
the committee to testify. She stated that the network supports the
concept of HB 99, but they are concerned that it is limited to
third-degree sexual assault. Sexual penetration is a first-degree
offense. It is particularly troublesome to believe that someone
with authority over a person may only be able to be charged with
third-degree sexual assault when other people would be charged with
first-degree sexual assault. The network understands that there is
the issue of consent; however, as Ms. Knuth previously stated,
people in authority negate a prisoner's ability to give consent.
The network would appreciate the committee looking at ways to
ensure that sexual assault and sexual penetration are able to be
prosecuted to the fullest extent the law allows, which would be
first-degree assault. The network believes that there may be space
to amend the sexual assault statute in the first degree in the area
where there are a couple of elements in the statute, before the
authority element, that are coupled with mental incapacity.
MS. HUGONIN concluded that the network appreciates the efforts of
the Department of Corrections and believes that HB 99 is the right
way to go, but they want to make sure that a correctional officer's
liability is not limited to only third-degree assault.
Number 1400
CHAIRMAN KOTT asked Ms. Hugonin whether she would suggest that a
higher category, such as first-degree assault, be applied to the
part of the statute that deals with people who are mentally
incapable or incapacitated.
MS. HUGONIN replied it is her understanding that it is first-degree
assault when there is an authority figure involved. It is sexual
penetration that the network is concerned about.
REPRESENTATIVE CROFT pointed out that, right now, it is
first-degree assault for sexual penetration with a person who is
mentally incapable and under someone's care, and second-degree
assault for sexual contact with a person who is mentally incapable
and under someone's care, that being the offending party. He
wondered whether that distinction would make sense because of the
mental incapacity element. He stated that Ms. Hugonin has touched
on the care element and the authority element, but not the
incapacity element.
MS. HUGONIN stated if someone is in a position of authority over
another person then that person is not going to be able to give
consent, whether or not they have all their faculties is a mute
point. If someone has sexual penetration with a person and there
is an authority element involved, that should be considered
first-degree sexual assault.
Number 1508
REPRESENTATIVE CROFT wondered whether the line that says, "mentally
incapable", should be taken out.
MS. HUGONIN indicated that she would not take it out because there
might be other circumstances where that needs to be specified. She
feels that there is a way to have the authority of a correctional
officer designated in the first degree. As it is now, doctors who
engage in sexual penetration with their patients are designated in
the first degree, so correctional officers could be put in a
category where they are held to a standard of not engaging in
sexual penetration with people they have authority over.
REPRESENTATIVE CROFT explained, in the doctor example, the patient
is unaware that a sexual act is being committed. The difference is
between sexual assault in the first degree, which is an
unclassified felony. He asked whether it is Ms. Hugonin's opinion
that a consensual act should be an unclassified felony, rather than
a class B felony.
MR. HUGONIN replied yes. Correctional officers should not be held
to a lesser standard than the general population, and since they
are in a position of authority they should be held to the same if
not higher standard. Another way to put the question would be, if
a correctional officer commits sexual assault against an inmate,
would there be a hesitancy? It would be more difficult to
prosecute them for first-degree assault, due to the fact it states
in statute that they are suppose to be prosecuted under
third-degree because of sexual penetration. She stated that this
is what the network does not want to have happen.
Number 1640
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,
Division of Family and Youth Services, Department of Health and
Social Services, came before the committee to testify. He is here
in support of the bill. The delinquency statutes allow juvenile
offenders up through the age of 19 to be in the juvenile justice
system. Most of those young offenders are held in the youth
facility treatment programs. As a result, there are adults who are
still within the delinquency system. The current statutes do not
speak to sexual contact between department employees and those who
have reached the age of majority. This bill fixes that problem.
As Ms. Knuth indicated, it hasn't been a crime before, but it is
conduct that the department would not condone or approve. This
bill fixes that omission or hole in the current statute and
practice in relation to the delinquency system. He is not aware of
this being a problem within the juvenile system; this is not a
response to an incident that has occurred, but it clearly
communicates that this is the standard expected in taking
responsibility for older juvenile offenders.
Number 1740
REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty
being elevated.
MR. BUTTCANE deferred the question to the Department of Law. He
thinks that a fiscal note would come into play if the penalty is
elevated.
REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty
being elevated from a non-fiscal point of view.
MR. BUTTCANE replied he is comfortable with the current status of
the penalty. He sees a difference between an 18-year-old and
someone who is mentally incapacitated. An 18-year-old can make a
reasonable decision about engaging in sexual contact with someone
else. It is inappropriate if that person happens to be a youth
counselor or correctional officer, which is what the bill speaks
to. But, they are adults and are forwarded the benefit of being
able to make reasoned decisions and sexual behavior is one of those
decisions that comes with the age of majority. He personally
believes making that decision an unclassified felony is excessive.
He declared that is his opinion, however, and not the department's.
Number 1814
REPRESENTATIVE GREEN asked Mr. Buttcane whether it should still be
third-degree assault in the case of coercion or adverse influence
from a person in authority.
MR. BUTTCANE replied the level of coercion certainly elevates the
severity of the offense. The current law allows for a more severe
response for nonconsensual sexual contact. An unbalanced authority
is inherent in a relationship between a correctional officer with
a person in custody which warrants a felony level sexual assault
with or without consent. But, if there is any degree of
nonconsent, the penalty needs to be more severe.
Number 1891
REPRESENTATIVE GREEN asked Mr. Buttcane whether he feels that a
correctional officer should be held to a higher accountability,
otherwise a negative message is being sent to the person trying to
be rehabilitated. He said he didn't expect an answer; it was more
of a statement.
Number 1930
REPRESENTATIVE KERTTULA stated she is concerned about the degree of
offense because of the authority over the person in custody. It's
not consensual under those circumstances. She asked Mr. Buttcane,
for clarification, whether sexual assault in the first degree is
for truly incapacitated people.
MR. BUTTCANE deferred the question to the Department of Law.
Number 1963
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the magic number
is 20 years of age at which point a person is released or dealt
with by the Department of Corrections.
MR. BUTTCANE replied the jurisdiction of the juvenile system must
terminate on a person's twentieth birthday. At that point, the
case is closed, and there is no mechanism to transfer that
individual to an adult system.
Number 1999
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether individuals who
are developmentally disabled who are placed under the definition of
a legal guardian could go beyond the age of 19 sometimes.
MR. BUTTCANE replied yes a person of any mental capacity could be
in the juvenile system up to the twentieth birthday.
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the definition
of "legal guardian" is specific to those individuals under AS 47.10
or AS 47.12.
MR. BUTTCANE replied yes.
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether any other person
in custodial control would be defined in another part of the
statute.
MR. BUTTCANE replied yes. Title 47.10 and 47.12 are specific to
children in need of aid and delinquent youths. The youths who are
involved with mental health and developmental disabilities fall
under a different authority.
Number 2064
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether there are folks
over 20 years of ago who are in custodial care who might find
themselves in this circumstance because of their disability and
still need the protection of the statute.
MR. BUTTCANE replied yes. He doesn't know whether that
circumstance would be covered under existing law, however. He
deferred the question to the Department of Law.
Number 2312
CHAIRMAN KOTT asked Ms. Knuth, if there was a correctional officer
who had sexual contact or penetration with an inmate, could that
officer be prosecuted under sexual assault in the first degree.
Number 2132
MS. KNUTH replied only if the act was proven to be nonconsensual.
The Department of Law engaged in lengthy discussions on the level
of penalty for this type of offense. The analysis looked first at
a lack of consent, then it looked at a lack of capacity or
unawareness. This is a step below that and the inappropriateness
is the position of authority of a correctional officer. There
isn't another circumstance in law that criminalizes consensual,
knowing sexual activity between adults. All of the current
criminal penalties involve underage, nonconsent, or incapacitated
in some fashion.
MS. KNUTH further stated, in reference to Representative Rokeberg's
questions, she believes a developmentally disabled individual is
already covered under the law. The law prohibits someone who is
entrusted with authority from engaging in sexual contact or
penetration with somebody who is incapable of giving meaningful
consent. The question is, do you want to say the power disparity
between a correctional officer and a prisoner makes it the same as
a lack of capacity due to alcohol, for example? In terms of the
standards that the court uses in looking at equal protection, she
has confidence that the supreme court could see the differences.
But, in terms of a policy decision and where the crime should fit,
it is an issue that reasonable people can come to different
conclusions on. She thinks that it shouldn't be an unclassified
felony because it is so severe that it would have a chilling effect
on prosecutions. She noted the chances of a conviction go up for
a class B or class C felony.
Number 2350
REPRESENTATIVE CROFT said there isn't consent for first-degree
sexual assault because the person doesn't understand what is
happening, or the person doesn't know what is happening. He cited
a doctor's examination as an example. In that case, there is a
situation where the consent is questionable because of the power
relationship. He thinks it is appropriate that it is one step
lower.
Number 2401
REPRESENTATIVE GREEN asked Ms. Knuth whether she knows the
penalties in other jurisdictions.
MR. KNUTH replied she has a 50-state survey, but she has not
analyzed it for that particular question. They are pretty much all
over the board - class A misdemeanor, class C felony, class D
felony, etc. She has not seen a jurisdiction give it the most
serious level, however.
TAPE 99-30, SIDE B
Number 0013
REPRESENTATIVE ROKEBERG said a mentally incapable person, by not
including them, can give consent.
MS. KNUTH said it depends on whether that person is found to be
able to consent. There is a continuum of developmental
disabilities. If someone was found to be able to give consent,
then it would not be covered by existing law.
Number 0031
REPRESENTATIVE ROKEBERG replied, "And, rightfully so." He wants to
give consideration for choices to be made.
Number 0048
CHAIRMAN KOTT closed the meeting to public testimony, and asked the
committee members to discuss the level of penalty for these
situations.
Number 0059
REPRESENTATIVE CROFT stated it is arguable whether it's one or two
levels below. Sexual assault in the second degree includes
penetration of an individual who the offender knows is mentally
incapable, incapacitated, or unaware that a sexual act is being
committed. That was elevated for the doctor situations. The bill
talks about third-degree assault for sexual penetration and
fourth-degree assault for contact. He thinks that this should be
punishable conduct, but he is worried about punishing it
excessively.
Number 0126
REPRESENTATIVE GREEN stated the doctor situations are in a
different setting, and an incarceration officer is also in a unique
setting. He believed it should be held to a higher standard making
it more akin to someone who can respond logically. It isn't a
run-of-the mill situation. It's not quite to the extent of the
doctor situation, but it should be higher than the norm.
Number 0170
REPRESENTATIVE MURKOWSKI stated, because of the power situation
between an inmate and a correctional officer, there is duress that
makes consent a completely separate issue.
Number 0197
REPRESENTATIVE ROKEBERG stated there are circumstances where there
wouldn't be any duress whatsoever. If it is raised to one more
level, it would go from zero to two years to ...
Number 0240
REPRESENTATIVE CROFT interjected that the testimony seems to
indicate that this is an inherently coercive situation, and only in
rare instances would it be truly consensual. The bill is taking
consent out of the equation for those rare cases; and, as a result,
there would be no defense for them.
Number 0281
REPRESENTATIVE ROKEBERG stated the position of authority in essence
raises it to destructive, statutory rape. A fact-pattern wouldn't
come into play, if the level is raised, when there could be
exceptions. In those cases, a judge wouldn't have any discretion.
Number 0305
MR. KNUTH noted that the maximum for a class C felony is five
years. The benchmark is 90 days to 6 months. The maximum for a
class B felony is 10 years. The benchmark for a first offender is
around two years. The maximum for a class A felony is 20 years
with a natural presumptive sentence of 5 to 7 years.
Number 0328
REPRESENTATIVE GREEN stated this is still unappropriate behavior,
even for the rare cases where there is consent. The fact that this
is a situation preparing a person for rehabilitation, he thinks, it
should be raised to let people know it will not be tolerated.
Number 0369
CHAIRMAN KOTT stated that a person guilty of this type of offense
would be terminated, which would hopefully be some deterrent.
Number 0377
REPRESENTATIVE ROKEBERG said a felony whether it's class B or C has
a downside in terms of punishment. The circumstance here would
limit discretion by the judicial branch making the judgments. He
also noted that there is an upside of a five-year differential by
making a distinction. The benchmarks are significantly different
by about one and a half years of minimum time. A person suffers
significantly, even if there is true consent. He agrees with the
law and its need, but is concerned about going too far because
there may be circumstances where there is a difference.
Number 0431
REPRESENTATIVE GREEN stated, based on testimony from Ms. Knuth, it
would be more than a first-time offense. If a person doesn't get
the message the first time, then five more years is appropriate.
Number 0449
REPRESENTATIVE ROKEBERG stated this type of fact-pattern would get
into a "he said-she said" situation of credibility, and taking that
away makes a huge difference. The person would either be in a
class C felony or in an unclassified felony. There is also the
circumstance of which is easier to corroborate - a class C felony;
an unclassified felony; to press a prosecution, if it is a higher
felony; or to get more convictions, as it should be, with a lower
punishment. He doesn't know how to balance that, but it is a
factor that needs to be considered.
Number 0500
REPRESENTATIVE KERTTULA expressed concerned about the prosecution.
This is an inherently nonconsensual situation. She is concerned
about this happening in correctional facilities. She tends to like
the idea, especially because penetration would be a higher
sentence, but she is troubled by raising it too high. The bill
takes the first step in criminalizing something that has an element
of consent, even though it is inherently nonconsensual.
Number 0541
CHAIRMAN KOTT stated he is concerned because this really isn't a
problem in Alaska. He would like to see a person at least go
before the courts for prosecution, even in those rare situations.
Number 0557
REPRESENTATIVE CROFT stated this is the first time that consensual
sex between adults, where they know the character of the act, would
be criminalized. In all the other situations, either they couldn't
consent because of age or mental capacity or didn't know what was
going on. He agrees that the element of consent is troublesome,
but arguably a sexual act between two adults could be criminalized.
It's a whole new area. It's proper under the bill, but the level
should be carefully considered.
Number 0611
CHAIRMAN KOTT noted this is the first time that the legislature has
traveled down this path.
Number 0616
REPRESENTATIVE ROKEBERG asked how many committee members have been
to the Highland Mountain Correctional Center. He noted it would be
difficult to find the space and privacy to "do it" there.
Number 0642
REPRESENTATIVE KERTTULA stated the only reason she is not going to
offer an amendment is because she has worked with enough
prosecutors and believes that they would charge the higher crime,
if there is any element of nonconsent. She noted that it is an
ethical violation for an attorney to have sex with a client, so
think how worse it is for a correctional officer who has control
over a person's daily life...
Number 0702
REPRESENTATIVE ROKEBERG made a motion to move HB 99 from the
committee with individual recommendations and the attached fiscal
note(s). There being no objection, HB 99 was so moved from the
House Judiciary Standing Committee.
Number 0737
CHAIRMAN KOTT called for a brief at-ease at 2:25 p.m. and called
the meeting back to order at 2:31 p.m.
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER
CHAIRMAN KOTT announced the next order of business is HB 75, "An
Act relating to murder; authorizing capital punishment, classifying
murder in the first degree as a capital felony, and allowing the
imposition of the death penalty when certain of those murders are
committed against children; establishing sentencing procedures for
capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska
Rules of Criminal Procedure, and Rules 204, 209, 210, and 212,
Alaska Rules of Appellate Procedure."
CHAIRMAN KOTT declared it is not the intent to pass the bill out of
the committee today or whenever. There is no immediate intent to
move this bill.
Number 0804
REPRESENTATIVE MASEK, sponsor of HB 75, Alaska State Legislature,
informed the committee that she introduced HB 75 due to her
personal belief that capital crimes committed against children
should be treated with the most serious consequences society can
deliver. She noted that she introduced similar legislation a few
years ago. Representative Masek explained that HB 75 allows for
the use of the death penalty only in situations where children are
kidnaped, assaulted, sexually assaulted, or a combination thereof.
She recognized that HB 75 concerns some who oppose the death
penalty and in most instances, she said she may agree with those
individuals. However, she did not have any sympathy for those who
prey upon children. Children need and deserve protection. Even if
the death penalty for crimes against children deters only one felon
from killing a child, she believed the efforts would be worthwhile.
Representative Masek requested the committee's support of HB 75 and
Alaska's children. She offered to answer any questions.
CHAIRMAN KOTT requested that committee members hold questions in
order to take the testimony of those on teleconference. He
announced that there is only a 30-minute window for those on
teleconference. Therefore, he requested that those on the
teleconference who wished to testify today limit their testimony to
three minutes or less. Those who can return tomorrow to testify
will receive additional time.
REVEREND JAY OLSON KETCHUM, testifying via teleconference from
Anchorage, stated that she was opposed to HB 75 and capital
punishment. She informed the committee that she is a minister of
a Presbyterian church and this summer she will be moving to Juneau
to serve as the Executive (indisc.) for the churches in Southeast
Alaska. Nationally, the Presbyterian Church has opposed capital
punishment. Reverend Ketchum believed it was not in society's best
interest to use killing as a means to deter killing. Capital
punishment will not serve a useful purpose and is uncivilized.
Reverend Ketchum did agree that more should be done to protect and
care for children. Therefore, she asked the committee to consider
the many uses of the resources that would otherwise be used for
capital punishment. She understood that implementing the death
penalty would have considerable costs. Perhaps, that money could
be utilized for better accessibility to health care and higher
quality mental health services for more children. Reverend Ketchum
emphasized that she has had far too many children in her Anchorage
office that cannot get adequate resources and help for mental
health and medical services. The money could be used to provide
higher quality and affordable day care. She also suggested that
the resources being used to consider the death penalty could be
utilized to implement prison reform in order to have a
rehabilitative system. Capital punishment is not good for Alaskans
and she did not believe it would make Alaskans any safer. Reverend
Ketchum urged the committee to put the death penalty issue away.
Number 1099
DALE KELLEY, Executive Director, Alaskans Against the Death
Penalty; Council Director, United Methodist Church throughout
Alaska, testified via teleconference from Anchorage in opposition
to HB 75. Ms. Kelley stated that she was aware that all major
denominations in the United States and elsewhere are opposed to
capital punishment. She urged the committee to say "No" to HB 75.
The bill has a variety of flaws, one of which would conceivable
allow children of any age to be given the death penalty which she
felt was morally wrong. "Killing one who killed another does not
teach that killing is wrong and that has been reported nationally."
She explained that the death penalty illustrates to children that
if the reason is good enough, killing is alright. Surely, society
can develop a better way to deter violence at all levels. With
regard to the argument that the victims of murder demand justice
and retribution, Murder Victims' Families for Reconciliation, a
national organization, is opposed to capital punishment.
MS. KELLEY noted the "factor of innocence" as experienced in
Illinois. Recently, Illinois has released 11 people since
reinstatement of the death penalty in that state. Those people
were proven to be innocent. The "factor of innocence" is moral and
ethical, although capital punishment on any level is wrong.
CHAIRMAN KOTT asked if all major denominations are opposed to the
death penalty, how can the polls which overwhelming indicate that
Alaskans support the death penalty, 70 percent to 80 percent, be
explained.
Number 1326
WILLIAM DEWEY, Attorney, testified via teleconference from
Anchorage. He noted that he has been an attorney in Alaska for
about 17 years. He informed the committee that he had a written
statement that he would forward to the committee. Mr. Dewey
opposed HB 75 and the death penalty, in general. With regard to
the polls being discussed, Mr. Dewey indicated that the results are
different when people have more information. Furthermore, poll
results are different when asking if the death penalty should
replace life without parole. With regard to serious crimes against
children, Mr. Dewey could only remember about three very serious
murders and all of those resulted in life without parole. The
problem is one of retribution.
MR. DEWEY discussed the diary of a Holocaust survivor who was 15
during the Holocaust. The diary entries during the two years after
his release from the camps illustrated his strong feelings of
revenge, retribution, and the desire to kill those who had
perpetrated this crime against he and his family members. After
years of reflection, this man became surprised at his incivility at
that time and decided that would not be a civilized response to a
problem. Mr. Dewey felt the same in this case. Why should courts
be given the power of the death penalty, when there are many
concerns and criticism with regard to the court's decisions. In
conclusion, Mr. Dewey asked the committee not to pass HB 75.
CHAIRMAN KOTT announced that witnesses were welcome to fax their
written testimony to the committee to be placed in the record.
Number 1524
FATHER LEO WALSH, Associate Pastor, St. Anthony's Catholic Church;
President, Innerfaith Council of Anchorage, testified via
teleconference from Anchorage in opposition to HB 75. He informed
the committee that his parish encompasses Mountain View. Father
Walsh said that he has had to preside at more than one murdered
child's funeral. When there is the proposition to execute/kill the
murderer, the victim's family is deprived of the chance to bring
their grief to closure. In effect, the victim's family is given a
lifetime penance of grief. The death penalty, especially in the
murder of a child, achieves the opposite of its intent. Father
Walsh explained that with any punishment, there are three factors
to consider which are the following: the protection of the
community or society at large; the rehabilitation or change of the
offender's behavior; and the restoration of moral order. The death
penalty does protect society from a similar offense, but removes
any chance of rehabilitation of the offender. Father Walsh
suggested that the death penalty does not restore moral order, but
rather injures it further. For example, two years ago in Mountain
View there was a rash of youth violence and the Anchorage Youth
Witness for Peace was held. During that meeting, a powerful letter
was read from a youth offender who killed another youth. The
letter urged youth not to do what he had done. Had that youth been
killed that opportunity would have been lost. Father Walsh
reiterated his opposition to HB 75.
Number 1727
RICH CURTNERS, Attorney, testified via teleconference from
Anchorage. He informed the committee that before coming to Alaska
he was an attorney in Ohio where he did quite a bit of death
penalty litigation. He stressed that the death penalty is an
expensive proposition. Ohio has had the death penalty for 20 years
and there are 150 people on death row there. Ohio has not yet had
an execution. The first death penalty legislation in Ohio was
found to be unconstitutional by the U.S. Supreme Court. Ohio's
second death penalty legislation has been going through the courts
for 15 years. Upon a quick review of HB 75, Mr. Curtners
guaranteed the committee that there are many constitutional
problems with HB 75 which invite expensive litigation. He
commented that any death penalty legislation would be expensive at
the trial court level through the appeals and the appellate process
through the federal courts. Mr. Curtners stated that HB 75 will
much more expensive. He noted that he had the opportunity to
review the fiscal note for HB 75 which he felt was a conservative
estimate of the expense. In Ohio, after 20 years of death penalty
litigation, the Ohio public offender's office has a large death
penalty litigation staff strictly for the later appellate stages of
habeas work which does not account for each counties local
appellate court expenses. Mr. Curtners believed HB 75 will cost
Alaska a lot of money which could be better spent to protect
children.
CHAIRMAN KOTT said that the committee would appreciate any
information from Mr. Curtners regarding the portions of the bill
that may be unconstitutional.
Number 1921
AMY MENARD, Attorney, testified via teleconference from Anchorage.
She noted that she had been waiting in a room with other Alaskans
for almost two hours to speak on this topic. She wanted the
committee to be aware of the concern and dedication among those
Alaskans who oppose and regret the consideration of HB 75. Ms.
Menard opposed HB 75, but noted that she would not discuss her
moral and ethical objections to the legislation. However, she
wanted to dovetail into Mr. Curtners comments. Ms. Menard
emphasized her frustration that the legislature perennially
revisits this issue and in particular now during Alaska's financial
difficulties. The death penalty will add significant cost as well
as an additional layer of litigation to a court system which is
already overburdened and slow. Ms. Menard said that frustration
was from her position as an attorney as well as an Alaskan. She
agreed that there are many constitutional and legal challenges that
would arise from HB 75. The legislation encumbers the supreme
court further with jurisdiction for seeing these cases and time
lines for hearing appeals. From her personal experience, Ms.
Menard informed the committee that appeals before the Alaska
Supreme Court routinely run 18 and 24 months at a time. Therefore,
she had difficulty understanding how the practical parameters of
this legislation would work. In conclusion, Ms. Menard opposed HB
75 and clarified that she and many others oppose this legislation
for moral as well as financial reasons. This legislation is a poor
use of resources and a poor use of the committee's time.
TAPE 99-31, SIDE A
Number 0035
MARY GEDDES testified via teleconference from Anchorage in
opposition to HB 75. She informed the committee of the following
information which she felt pertinent to her opinion on HB 75.
First, Ms. Geddes noted that she was expecting a child in the next
two months. Second, she said that when she was 15 years of age her
best friend was kidnaped, sexually assaulted and strangled to
death. Although the images of her best friend's death will always
haunt her, she realizes that the death penalty will not bring her
best friend back.
MS. GEDDES read Lisa Rieger's statement into the record as follows:
As one of the few lawyers in the state who has actually
tried a death penalty case, I am speaking in opposition
to HB 75. Often there is an impression that the costs of
the death penalty arrive after trial and conviction
during the appeals process. In fact, much of the
increased cost occurs during investigation and trial.
For example, the trial on which I was involved took seven
months of court time. Thus, it is extremely taxing to
the court, the jurors, and the attornates. Two
prosecutors and two defense attorneys were committed for
the entire pre-trial and trial period, exclusively to
this case. There is always a danger when yesterday's
headlines become tomorrow's laws. This state has had bad
experience with that in the past. I strongly urge you to
reject this bill. On behalf of both of our families I
ask you to vote down HB 75.
Number 0267
ARTHUR CURTIS, Minister, Unitarian Universalist Fellowship,
testified via teleconference from Anchorage in opposition to HB 75.
He found no evidence to illustrate that the death penalty will
accomplish any good in the prevention of crime. He commented on
the expense of the death penalty and pointed out that the death
penalty has not worked in other states. Therefore, he was not
certain as to why Alaska would want to join the "brutality
sweepstakes." He said that HB 75 is a step backwards and he urged
the committee to vote against HB 75.
DENNIS HOLWAY, Pastor, Turnagain United Methodist Church, testified
via teleconference from Anchorage in opposition to HB 75. He
informed the committee that he has served as a United Methodist
Minister in Alaska since 1977 and he is currently in his ninth year
as pastor at the Turnagain United Methodist Church. Capital
punishment does not necessarily rally the clergy around a common
voice. However, within the general conference of the United
Methodist denomination which represents approximately 8 million
members, it is clear that capital punishment is opposed and urged
to be eliminated from all capital codes. Pastor Holway noted that
his conference does not speak for all United Methodists, but it
does speak to all United Methodists. He informed the committee
that his opposition was based upon moral and biblical traditions
which place value on the life of every human being. Pastor Holway
discussed a 17-year-old congregation member who killed his best
friend at age 15 when the two were playing with guns. This youth
went to McClaughlin which did an excellent job in this case and the
youth has been released and is doing well. Pastor Holway hoped
that this example illustrates the implications of legislation when
a human being is caught in a web of violence even when it is an
accident.
Number 0618
CHARLES CAMPBELL informed the committee that he was a past director
of the Division of Corrections in Alaska. He noted that he has
been involved in various aspects of the corrections field for more
than 45 years, including service at seven different federal
prisons. Among those seven federal prisons, Mr. Campbell served at
the Medical Center for Federal Prisoners in Springfield, Missouri,
which housed and studied some of the most vicious criminals in the
federal system. Mr. Campbell opposed HB 75 and restoration of the
death penalty in Alaska under any circumstances. He said that he
could understand the sentiment underlying this legislation, but HB
75 is troubling. "Nothing could be more inappropriate, in my
opinion, than memorializing the death of a child by killing another
human being." Mr. Campbell pointed out that an individual that is
so disturbed as to be capable of murdering a child is the type of
person who would not be deterred by the prospect of being executed;
the opposite effect would be more likely. There is solid research
that supports this thinking and he offered to detail such research
to the committee.
MR. CAMPBELL said that he did not understand why state
legislatures, this body included, gives any consideration to such
a terrible practice. The death penalty is obscenely expensive and
is not useful as a deterrent. Furthermore, the death penalty
hampers the cause of good law enforcement and protection of the
public. The death penalty is blatantly unfair to racial minorities
and defendants unable to afford adequate representation. These
facts are not disputed by any reliable or reputable source. With
regard to the polls, Mr. Campbell recognized that the polls
illustrate that most Americans as well as Alaskans approve of the
death penalty, but these same polls show that most Americans do not
believe that vengeance is a legitimate reason for the death
penalty. Vengeance is the only rational reason for the use of the
death penalty. This ultimate, irreversible penalty, is one that
falls disproportionately on the poor and the poorly represented.
Russia and the Ukraine are the most recent countries to abandon the
death penalty. Mr. Campbell commented that Americans are known to
be the most compassionate and charitable people on earth, yet
Americans are willing to be so isolated on this issue in the world.
Continuing the death penalty in America places America in the
company of countries such as Iraq, Iran, Lybia, and China. Mr.
Campbell expressed the need for the legislators to utilize this
opportunity to inform their constituents of the reality of the
death penalty and help their constituents understand why they
should oppose the restoration of the death penalty.
MR. CAMPBELL informed the committee that in 1980 when he served as
the Director of the Division of Corrections he was posed with the
task of developing a position paper for death penalty legislation.
He recalled that he neglected his position as director for two
weeks in order to make phone calls, write letters, and read law
review journals. As a result, Mr. Campbell became adamantly
opposed to the death penalty on all grounds, although his moral and
ethical opposition to the death penalty existed prior to this task.
Among the studies he reviewed, the 1967 Pearce (ph) and Bauers (ph)
study of Northeastern University reviewed the possibility of
Christian terrorists. The study reviewed New York State from the
time of the establishment of the Borough of Vital Statistics, 60
years. A pattern was found of two additional murders, on average,
per month following the month of one or more executions. Mr.
Campbell said that about 10 years ago he discussed this with
Professor Bauers (ph) who noted that other studies have suggested
the same. About two years ago, Mr. Campbell talked with Professor
Bauers (ph) who was more convinced that the prospect of execution
is more likely to incite a particularly twisted, pre-disposed type
of person to commit a violent act than to deter that person.
MR. CAMPBELL noted that for many of his years in the federal prison
system he was a case worker who compiled social histories. He sat
across the table from some of the most depraved, pathological
murderers one could imagine. Mr. Campbell emphasized that it would
be preposterous to think that such a person would be deterred by
the threat of execution; quite the opposite is likely to occur.
Therefore, to feel that HB 75 would save one child's life is a poor
prospect to count on. When violence is relied upon, which is
essentially what the death penalty is, there will be a continuation
of more not less violence. In response to Representative Green,
Mr. Campbell agreed to provide the committee with a copy of the
aforementioned study.
Number 1280
PHILLIP PALLENBERG informed the committee that he was the
Supervising Attorney for the Public Defender Agency in Juneau,
although he indicated that he was not testifying in that capacity.
Mr. Pallenberg said that he was present to provide his personal
opinions to HB 75. Mr. Pallenberg opposed HB 75 as well as capital
punishment. He pointed out that HB 75 is structured such that in
all first degree murder cases a separate hearing with the jury in
which the jury makes recommendations regarding sentencing would be
required. The legislation does not limit the sentencing phase of
the trial, which is not currently done, to child murder cases.
That seemed to be a Trojan Horse as does the entire bill. If HB 75
passes, he felt that each year another depraved category of
murderers would be added.
MR. PALLENBERG suggested the committee should focus on the issue of
capital punishment in a broader sense, not on child murderers.
There seems to be two broad rationales supporting the death penalty
which are retribution and deterrence. Those have to be balanced
against the monetary costs and, even more importantly, against the
potential for innocent people to be executed by the state. As
someone working in the legal system for a long time, Mr. Pallenberg
was concerned with the latter; jurors are human beings and human
beings make mistakes. There is a high potential for innocent
people to be executed under such a system. Mr. Pallenberg believed
that the only way a bill such as HB 75 made sense morally is if the
public can be convinced that the bill will save more lives than it
will cost the innocent. He agreed with Mr. Campbell's comments.
The more depraved the act the more difficult it is to deter. He
said, "Really, the question isn't will capital punishment deter
anybody. The question is will capital punishment deter anybody who
wouldn't have been deterred by a life sentence without possibility
of parole."
Number 1550
HUGH FLEISCHER, Executive Board, Alaska Christian Conference;
Interfaith Council of Anchorage; Alaskans Against the Death
Penalty; testified in opposition to the death penalty in Alaska.
He noted that Ms. Lerman is a historian who will provide the
committee with information regarding what it was like in Alaska
when the death penalty was in place. During that time, 75 percent
of those persons executed were Natives and African Americans, even
though those people comprised a very small portion of the
population. Mr. Fleischer suggested the committee review Alaska's
actual experience with the death penalty. Mr. Fleischer concurred
with all the previous testimony, specifically that of Mr. Campbell.
He emphasized that the state should not emulate murderers because
it is against our interest. He echoed the comments regarding the
mistakes that are made due to the human judicial system. Mr.
Fleischer informed the committee that in the U.S. over 70 people on
death row have been cleared of guilt. In Florida, there were 18
such persons who were found to have been erroneously convicted. He
noted that every member of the legislature would receive the
document entitled, "'Innocent' Why the Death Penalty is Losing its
Supporters" which he asked the members to review.
MR. FLEISCHER informed the committee that the Criminal Justice
Working Group puts out a time line illustrating what happens
between the time of arrest and the time of conviction. The
Criminal Justice Working Group includes police organizations,
prosecutors, the Department of Law, and various persons involved in
the criminal justice system. The time line graph is longer than
Mr. Fleischer's out-stretched arm. There are innumerable areas
where mistakes can be made. He requested that time line be entered
as part of the record as with the aforementioned document.
Number 1860
CHAIRMAN KOTT expressed concern with the prosecution of an innocent
person. With regard to those who have been released in recent
years, Chairman Kott suspected that was due to advances in the
medical field. Since Alaska has outlawed the death penalty, has
Alaska ever released a person and declared the person innocent.
MR. FLEISCHER pointed out that virtually all criminal prosecutions
resulting in a conviction are appealed. There have been a number
of convictions that were overturned by the Alaska Court of Appeals
and the Alaska Supreme Court. He noted that the Alaska Court of
Appeals which deals exclusively with criminal convictions is
excluded from the loop in HB 75, although the Alaska Court of
Appeals has the most expertise and experience with criminal law.
Mr. Fleischer said that Alaska has not had a capital case in modern
history, but it has happened in other comparable states.
CHAIRMAN KOTT posed a situation in which a person is sentenced 99
years to life for murder. The person serves 10 years and it is
discovered that he/she did not commit the murder and he/she is
released. Has such a situation occurred in Alaska?
MR. FLEISCHER did not know of a such a case. He offered to
research that for the committee.
Number 2056
IAN OLSON next came forward to testify. Mr. Olson said that he
wanted to direct his comments toward finding a better solution.
Thus far, 14 people have testified in opposition to HB 75; not one
person has testified in support of HB 75 which he believed to be
significant. Mr. Olson directed the committee's attention to the
fiscal note which he understood to mean that in the fiscal year
2005, the state would face about $1 million per year to merely run
the system of the death penalty. He emphasized that is just to run
the system, but does not include the cost to kill someone.
Furthermore, it seems that only one or two cases are expected per
year. That is a lot of money and the cost increases each year.
Mr. Olson commented that the death penalty is a reactive system.
MR. OLSON suggested that the solution is a proactive system which
funds child programs. Programs promoting alcohol awareness and gun
safety should be funded. If the reactive system is chosen, Mr.
Olson believed Alaska would enter into a slippery slope with which
there seems to be a prioritizing of whose life is more valuable
than another. He stressed that a child's life is the most
valuable, but the slippery slope will open it up to others. Mr.
Olson emphasized the need to be proactive. With regard to
Representative Masek's comment that HB 75 is a success even if it
only kills one person who has killed a child, Mr. Olson questioned,
"What if we were to install a proactive system that saved one
child, would she still wonder if this is a success? Would she
still wonder if a proactive system is a success if we have it save
just one child?" In conclusion, Mr. Olson expressed the need to
give HB 75 the upmost attention.
CHAIRMAN KOTT pointed out that Mr. Olson's fiscal estimate was
conservative because he was looking at only one of the three fiscal
notes to HB 75.
Number 2384
CAMI MOLINE was next to testify. She informed the committee that
she grew up living on the grounds of federal correctional
institutions as her father is Mr. Campbell. She has listened for
years to the discussion regarding what does and does not work. Ms.
Moline noted that she has worked in corrections in Alaska and
elsewhere with juvenile offenders. Currently, she is a
stay-at-home mom who tells who two sons that peace, justice, and
truth should constantly be sought. She hoped the committee would
support that, as legislators have the opportunity to exemplify
these pursuits in leadership. This is a deeply emotional issue; so
much so that peace, justice, truth, and facts can become elusive.
She discussed the unimaginable feelings of the families' of
victims, but noted that taking the life of another in revenge never
resurrects the lost loved one. Peace does not come by these means.
She echoed the comments regarding the disproportionate numbers of
poor, males of minorities who have been chosen to be deserving of
execution. People of resources can avoid conviction.
TAPE 99-31, SIDE B
MS. MOLINE indicated that life imprisonment is an option at a far
less cost. She reiterated the fiscal concerns surrounding
instating the death penalty. Ms. Moline requested that the
committee put aside HB 75.
Number 0038
ELLEN CAMPBELL next came before the committee. She noted a
conversation with one of her friends who found it difficult to
believe that life imprisonment was cheaper than capital punishment.
This lead Ms. Campbell to think of all the reasons why one cannot
say that one life is not worthy of further existence. Life is
God's gift. She informed the committee that she has known persons
with serious crimes in their past and others who, had the death
penalty existed, would have lost their redemptive years and the
world would have been poorer. Ms. Campbell said that the public
wants the legislature to vote to express its wishes. The public
wants crime, hideous crimes to be stopped. She commented that
those who are most seriously deranged are not responsible as we are
sitting here. Ms. Campbell said, "You have been elected for where
the truth is. You are informed. You can bring enlightenment to
people who, in their fear and in their frustration, say we have to
end it so let's kill them, not knowing that forces and energy and
money go to wiping out some pitiful, unrepresented, poorly
represented minority." In conclusion, Ms. Campbell quoted a verse
in the Bible saying, "'Who knows, but for such a time as this you
can into the kingdom.' Who knows, but for such a time as this you
were elected to the legislature to represent what is right and good
for people and I pray that you will exercise your responsibility
intelligently and with commitment and courage."
CHAIRMAN KOTT announced that HB 75 would be put aside until
tomorrow for those to testify who were not able to today.
CSSB 57(FIN) - CARE FOR VULNERABLE ADULTS
CHAIRMAN KOTT announced the next order of business is CSSB 57(FIN),
"An Act relating to vulnerable adults; and providing for an
effective date."
CHAIRMAN KOTT stated that HB 147 and SB 57 started off looking very
similar. There have been some changes to the Senate version, which
is before the committee. The house version is DOA [dead on
arrival].
Number 0312
SHEILA PETERSON, Legislative Assistant to Senator Gary Wilken,
Alaska State Legislature, came before the committee and presented
the sponsor statement. She noted that Senator Wilken was the
co-chair to the Long-Term Care Task Force during the interim. It
met to study issues facing senior citizens and adults with
disabilities. It made 31 recommendations, of which, 4 included
legislation. The bill before the committee is one of the four.
MS. PETERSON stated that SB 57 would enhance the protective
services afforded to vulnerable adults by reducing the possibility
of exploitation or abuse by guardians. Under the current law, the
Department of Administration must immediately terminate an
investigation of abuse upon the request of a vulnerable adult who
is the subject of the report. Unfortunately, in some rare
instances the person subject to the investigation might be the
guardian or attorney-of-fact or surrogate decision maker. This
would allow the department to continue the investigation, even if
the guardian asks to have it terminated. It would close a small
loophole in statute. She noted that the Senate raised the standard
of scrutiny to probable [page 1, line 7]. She announced she has an
amendment that would allow for the need of a legislator to access
a report.
Number 0445
CHAIRMAN KOTT announced there are two amendments. He labeled them
as "Amendment 1" and "Amendment 2".
MS. PETERSON explained Amendment 1 is to clarify a run-on sentence.
It reads as follows:
Page 1, line 6:
Delete "unless [. HOWEVER, IF]"
Insert ". However, the department or its designee may
not terminate the investigation if"
Page 1, line 8, following "services,"
Insert "and"
Number 0528
REPRESENTATIVE GREEN made a motion to adopt Amendment 1. There
being no objection, it was so moved.
CHAIRMAN KOTT explained Amendment 2 deals with confidentiality
reports and allows legislators to have access to them. It reads as
follows:
Sec. 47.24.050. Confidentiality of reports. (a)
Investigation reports and reports of the abandonment,
exploitation, abuse, neglect, or self-neglect of a
vulnerable adult filed under this chapter are
confidential and are not subject to public inspection and
copying under AS 09.25.110 - 09.25.125. However, in
accordance with this chapter and regulations adopted
under this chapter, investigation reports may be used by
appropriate agencies, legislators, or other individuals
involving the abandonment, exploitation, abuse, neglect,
or self-neglect of a vulnerable adult.
Number 0548
REPRESENTATIVE CROFT made a motion to adopt Amendment 2.
REPRESENTATIVE KERTTULA objected for discussion purposes. She
asked Ms. Peterson whether Amendment 2 would allow legislators to
have actual names and files on individuals. In other words, what
kind of information would this put out to the public?
Number 0577
MS. PETERSON replied this was proposed in the House Health,
Education and Social Services Standing Committee as similar
legislation which allows a legislator to have access to child
support enforcement cases with the intent of helping or assisting
a constituent. She assumes that the information currently
available to the appropriate agencies would be the same type of
information that would be available to legislators. This would not
expand the information currently available to those two entities.
In further response to Representative Kerttula, Ms. Peterson
clarified that it would give the actual name and circumstances
behind the investigation.
Number 0635
CHAIRMAN KOTT stated that is his understanding as well. The case
file or some part of it would be given. He asked Ms. Peterson what
protections are there now to ensure that those who can access a
report keep it confidential. Is there a penalty?
Number 0661
MS. PETERSON replied that was not discussed in the Senate, but in
accordance with her experience in similar situations, confidential
information is not given freely, and there probably would be some
ownership on the individual legislator who is making the request to
keep it confidential.
Number 0695
CHAIRMAN KOTT asked Ms. Peterson whether there is anything in the
bill that allows for legislative staff to have access to a report.
The way he reads the bill, it is for the use of the legislator only
and that use cannot be extended to anybody else.
MS. PETERSON replied she doesn't know whether there is a definition
dealing with this that expands use to legislative staff.
Number 0739
REPRESENTATIVE GREEN explained that the idea was for the legislator
and not the legislator's staff, as discussed in the House Health,
Education and Social Services Standing Committee. There was
concern and discussion on maintaining confidentiality which is why
the access was restricted. He's not sure whether the wording in
Amendment 2 maintains that restriction, however.
Number 0777
MS. PETERSON stated Senator Wilken feels very strongly about the
initial bill and the importance in protecting vulnerable adults.
He would support passing the bill without the amendment.
CHAIRMAN KOTT stated that this was not part of the original task
force recommendation.
MS. PETERSON replied correct.
Number 0800
REPRESENTATIVE CROFT removed his motion to adopt Amendment 2. He
doesn't want to slow down the bill.
Number 0824
REPRESENTATIVE KERTTULA withdrew her objection. She doesn't want
to see this type of information being spread around to
inappropriate people, but at the same time she doesn't want to stop
appropriate investigations.
Number 0861
REPRESENTATIVE KERTTULA made a motion to move CSSB 57(FIN), as
amended, from the committee with individual recommendations and the
attached fiscal note(s). There being no objection, HCS CSSB
57(JUD) was so moved from the House Judiciary Standing Committee.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 4:08 p.m.
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