Legislature(1999 - 2000)
04/22/1999 01:20 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 22, 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
CS FOR SENATE BILL NO. 11(JUD)
"An Act relating to good time credits for prisoners serving
sentences of imprisonment for certain murders."
- HEARD AND HELD
* HOUSE BILL NO. 180
"An Act relating to the possession, manufacture, use, display, or
delivery of controlled substances while children are present."
- HEARD AND HELD
CS FOR SENATE BILL NO. 27(FIN)
"An Act relating to school records and driver license records of
certain children."
- MOVED CSSB 27(FIN) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 8
Relating to the 2000 decennial United States census and to the
development of redistricting data for use by the state in
legislative redistricting.
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 11
SHORT TITLE: PRISON TIME CREDITS FOR MURDERERS
SPONSOR(S): SENATOR(S) DONLEY, Leman, Taylor
Jrn-Date Jrn-Page Action
1/19/99 16 (S) PREFILE RELEASED - 1/8/99
1/19/99 16 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 16 (S) JUD, FIN
2/17/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/17/99 (S) HEARD AND HELD
2/17/99 (S) MINUTE(JUD)
2/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/22/99 (S) MOVED CS (JUD) OUT OF COMMITTEE
2/22/99 (S) MINUTE(JUD)
2/23/99 337 (S) JUD RPT CS 2DP 1NR NEW TITLE
2/23/99 337 (S) DP: HALFORD, DONLEY; NR: TORGERSON
2/23/99 338 (S) ZERO FISCAL NOTE TO SB & CS (COR)
2/24/99 350 (S) INDETERMINATE FN TO SB & CS
(ADMINISTRATION)
3/11/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/11/99 (S) SCHEDULED BUT NOT HEARD
3/18/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/18/99 (S) MINUTE(FIN)
4/07/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
4/07/99 (S) MOVED OUT OF COMMITTEE
4/08/99 (S) RLS AT 11:40 AM FAHRENKAMP 203
4/08/99 (S) MINUTE(RLS)
4/08/99 821 (S) FIN RPT 6DP 1DNP 2NR (JUD) CS
4/08/99 821 (S) DP: TORGERSON, PARNELL, PHILLIPS,
4/08/99 821 (S) PETE KELLY, LEMAN, DONLEY;
4/08/99 821 (S) NR: GREEN, WILKEN; DNP: ADAMS
4/08/99 821 (S) PREVIOUS INDETERMINATE
FN(ADMINISTRATION)
4/08/99 821 (S) PREVIOUS ZERO FN (COR)
4/09/99 846 (S) RULES TO CALENDAR AND 1 OR 4/9/99
4/09/99 849 (S) READ THE SECOND TIME
4/09/99 849 (S) JUD CS ADOPTED UNAN CONSENT
4/09/99 849 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/09/99 849 (S) READ THE THIRD TIME CSSB 11(JUD)
4/09/99 850 (S) PASSED Y16 N3 E1
4/09/99 850 (S) ELLIS NOTICE OF RECONSIDERATION
4/12/99 884 (S) RECONSIDERATION NOT TAKEN UP
4/12/99 885 (S) TRANSMITTED TO (H)
4/13/99 786 (H) READ THE FIRST TIME - REFERRAL(S)
4/13/99 786 (H) JUD, FIN
4/21/99 (H) JUD AT 1:00 PM CAPITOL 120
4/21/99 (H) SCHEDULED BUT NOT HEARD
4/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 180
SHORT TITLE: DRUGS WHERE MINORS ARE PRESENT
SPONSOR(S): REPRESENTATIVES(S) COWDERY, Dyson
Jrn-Date Jrn-Page Action
4/07/99 671 (H) READ THE FIRST TIME - REFERRAL(S)
4/07/99 671 (H) JUD, FIN
4/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 27
SHORT TITLE: ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD
SPONSOR(S): SENATOR(S) LEMAN; REPRESENTATIVE(S) Rokeberg
Jrn-Date Jrn-Page Action
1/15/99 21 (S) PREFILED 1/15/99
1/19/99 21 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 21 (S) HES, FIN
2/22/99 (S) HES AT 1:30 PM BUTROVICH ROOM 205
2/22/99 (S) HEARD AND HELD
2/22/99 (S) MINUTE(HES)
2/24/99 (S) HES AT 1:30 PM BUTROVICH ROOM 205
2/24/99 (S) MOVED CS (HES) OUT OF COMMITTEE
2/24/99 (S) MINUTE(HES)
2/25/99 362 (S) HES RPT CS 2DP 1NR 1AM SAME TITLE
2/25/99 362 (S) DP: MILLER, PETE KELLY; NR: WILKEN;
2/25/99 362 (S) AM: ELTON
2/25/99 362 (S) ZERO FISCAL NOTE (ADMINISTRATION)
2/25/99 362 (S) INDETERMINATE FN (DOE)
3/16/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/16/99 (S) HEARD AND HELD
3/16/99 (S) MINUTE(FIN)
3/17/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/17/99 (S) MOVED CS (FIN) OUT OF COMMITTEE
3/17/99 (S) MINUTE(FIN)
3/18/99 (S) RLS AT 11:40 AM FAHRENKAMP 203
3/18/99 (S) MINUTE(RLS)
3/18/99 598 (S) FIN RPT CS 6DP 1NR SAME TITLE
3/18/99 598 (S) DP: TORGERSON, PARNELL, PHILLIPS,
GREEN,
3/18/99 598 (S) LEMAN, WILKEN; NR: ADAMS
3/18/99 598 (S) PREVIOUS INDETERMINATE FN (DOE)
3/18/99 598 (S) PREVIOUS ZERO FN (ADMINISTRATION)
3/22/99 632 (S) RULES TO CALENDAR AND 1 OR 3/22/99
3/22/99 632 (S) READ THE SECOND TIME
3/22/99 632 (S) FIN CS ADOPTED UNAN CONSENT
3/22/99 633 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/22/99 633 (S) READ THE THIRD TIME CSSB 27(FIN)
3/22/99 633 (S) PASSED Y17 N- E2 A1
3/22/99 633 (S) LINCOLN NOTICE OF RECONSIDERATION
3/23/99 651 (S) RECONSIDERATION NOT TAKEN UP
3/23/99 652 (S) TRANSMITTED TO (H)
3/24/99 544 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/99 544 (H) HES, JUD
3/24/99 562 (H) CROSS SPONSOR(S): ROKEBERG
3/30/99 (H) HES AT 3:00 PM CAPITOL 106
3/30/99 (H) MOVED OUT OF COMMITTEE
3/30/99 (H) MINUTE(HES)
3/31/99 622 (H) HES RPT 4DP 2NR
3/31/99 622 (H) DP: MORGAN, DYSON, WHITAKER, COGHILL;
3/31/99 622 (H) NR: BRICE, KEMPLEN
3/31/99 622 (H) SEN INDETERMINATE FN (DOE) 2/25/99
3/31/99 622 (H) SEN ZERO FISCAL NOTE (ADMINISTRATION)
2/25/99
3/31/99 622 (H) REFERRED TO JUDICIARY
4/07/99 672 (H) FIN REFERRAL ADDED
4/22/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Sponsor of SB 11.
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 SB 11.
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: Testified on SB 11.
JAMES ARMSTRONG, Legislative Assistant
to Senator Dave Donley
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Testified on SB 11.
REPRESENTATIVE JOHN COWDERY
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3879
POSITION STATEMENT: Sponsor of HB 180.
PETER TORKELSON, Researcher
for Representative John Cowdery
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3879
POSITION STATEMENT: Testified on HB 180.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions on HB 180.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 180.
MICHAEL PAULEY, Legislative Assistant
to Senator Loren Leman
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801
Telephone: (907) 465-2095
POSITION STATEMENT: Presented sponsor statement on SB 27.
REAGAN EIDSNESS
330 West 9th Street
Juneau, Alaska 99801
Telephone: (907) 586-6821
POSITION STATEMENT: Testified on SB 27.
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 on SB 27.
ACTION NARRATIVE
TAPE 99-38, 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, Rokeberg, Murkowski, Croft and Kerttula.
Representatives Green and James arrived at 1:36 p.m. and 2:14 p.m.,
respectively.
CSSB 11(JUD) - PRISON TIME CREDITS FOR MURDERERS
CHAIRMAN KOTT announced the first order of business is CSSB
11(JUD), "An Act relating to good time credits for prisoners
serving sentences of imprisonment for certain murders."
Number 0063
SENATOR DAVE DONLEY, Alaska State Legislature, came before the
committee as sponsor of SB 11. The bill would reduce good time
deduction for people convicted of first- or second-degree murder in
the state. It would reduce it from 33 percent to 16 percent. The
federal government has adopted an 85 percent standard for all
sentences in the federal prison system. The federal law also
suggested that all states adopt the standard. Alaska has some of
the most liberal good time laws in the nation at 33 percent. He
noted that over 30 states have gone to the 85 percent standard. He
further noted that there is a great discrepancy amongst the states
on how they sentence people for different crimes. The argument has
been made that Alaska has strong mandatory sentencing laws, but
Alaska is not the only state to give long sentences for first-and
second-degree murder. The idea in the bill is to set a dichotomy
and to say that at least when a person commits a murder that the
state will try and follow the national sentencing standard. He
noted that the bill actually requires 84 percent, but that's a lot
closer to the national standard than where the state is now.
Senator Donley further stated that the real issue seems to involve
the families of victims of homicide or those who have been
victimized by those who have been convicted of second-degree
murder. He explained that he went to a memorial service for
families of victims of homicide last year in Anchorage, which is
how the bill originated. He was approached by several families who
had children murdered who see the murderers walking down the
street. He didn't have an answer for them other than the good time
provisions in sentencing which allow an inmate to go free one-third
the time earlier than what was sentenced. The shortest sentence
for second-degree murder in Alaska has been ten years; and, with
one-third off for good time, that means a person serves about six
and a half years. Most of the sentences are longer than that, but
there are many, many sentences that are under thirty years.
SENATOR DONLEY further stated that SB 11 is excellent public
policy. There aren't any real constitutional questions involved
because clearly the state has a right to distinguish between people
who kill other human beings and those who do not in terms of
sentencing. He noted that there would be some fiscal impact in six
to eight years. He hopes that the word would get out that the
state would take killing a person even more seriously which would
act as a deterrent thereby paying for itself.
Number 0469
REPRESENTATIVE ROKEBERG stated the committee just reviewed SB 3,
which raised the minimum sentences on offenses against a child
including first- and second-degree murder. He asked Senator Donley
whether he is familiar with that piece of legislation.
SENATOR DONLEY replied SB 3 puts child murderers under the law he
wrote about ten years ago that included - for the first time - the
99-years-without-parole provision.
Number 0559
REPRESENTATIVE ROKEBERG stated that SB 3 raised the presumptive
minimum sentence for second-degree murder from 5 to 20 years. He
wondered whether there would be any impact between that bill and
this bill for those crimes.
Number 0609
SENATOR DONLEY responded, if that is true, it sounds like a good
idea.
Number 0644
REPRESENTATIVE CROFT noted that SB 3 raises some [offenses] to a 20
year minimum. He further noted that in those cases a person would
have to serve 17 years under this bill.
Number 0681
REPRESENTATIVE KERTTULA asked Senator Donley whether he has seen
any study that says removing good time is a deterrent.
SENATOR DONLEY replied no. He doesn't know how that would be
calculated without getting into the minds of perpetrators. But
having laws that don't tolerate killing other people is a good
message. He noted the saying, "you got away with murder." Seeing
a murderer walk down the street sends the wrong message to
families of victims and others in terms of how serious society
takes homicide.
Number 0740
REPRESENTATIVE MURKOWSKI asked Senator Donley whether there is any
federal incentive that the state would gain by changing the
statutes as suggested in the bill.
Number 0764
SENATOR DONLEY replied, he thinks, that there might be something
that parallels what's going on in juvenile justice. That being,
federal dollars available for meeting certain criteria. It depends
on how the federal law is written. Sometimes its suggestive and
sometimes some money is made available even if a state is just
studying and moving in a particular direction.
Number 0840
SENATOR DONLEY noted, in response to the questions regarding SB 3,
that it is 99 years without parole, if the victim is a child and it
is a second-degree murder.
Number 0928
MARGOT KNUTH, Assistant Attorney General, Office of the
Commissioner-Juneau, Department of Corrections, came before the
committee to testify. In response to Representative Murkowski's
question, there is a federal act called Violent Offenders
Incarceration Act-Truth In Sentencing (VOIA-TIS) which makes extra
money available to the states for being tough on crime. The
legislature appropriates those funds each year to help pay for the
cost of incarceration of the state's inmates in Arizona. Alaska
does not qualify for the truth-in-sentencing portion because its
good time is 33 percent rather than 15 percent - the maximum that
the federal government allows. The state looked at going to 85
percent and quickly decided that it could not afford it. The
amount of money paid out of the truth-in-sentencing portion is a
small percentage of the additional costs that the state would incur
to increase any length of time for incarceration. Furthermore,
there were a few states that went to 85 percent in reliance on the
federal funds, but President Clinton has proposed to discontinue
that funding this year. Those states are very unhappy, which
further confirms Alaska's concerns of not going that route. She
further noted that Alaska is one of the toughest sentencing states
in the U.S. She read the following average sentence figures into
the record:
Georgia - 144 months
Louisiana - 104 months
Missouri - 247 months
Minnesota - 144 months
New Jersey - 432 months
New York - 317 months
Tennessee - 173 months
Virginia - 91 months
Washington - 243 months
Alaska - 467 months
MS. KNUTH noted that the figures are for anticipated time to be
served. Therefore, the figure of 467 for Alaska already takes out
good time. There are two questions involved: What is the
appropriate amount of time for people to be serving for these
offenses? and Can the state afford it? The biggest problem with
this suggestion is that most inmates are already over 50 years old
by the time they are eligible for release, which is considered old
in prison populations and means high medical costs. This bill is
talking about increasing the length of time being incarcerated
beyond the age of 50, which is an expensive proposition. According
to her calculations, the state already has 105 first-degree murder
prisoners who would be over 50 years of age by the time they are
released, and 21 who would be under the age of 50 by the time they
are released. There are 58 second-degree murder prisoners who
would be over 50 years of age by the time they are released, and 51
who would be under the age of 50 by the time they are released. If
the bill were enacted, there would be a total of 183 over the age
of 50, and a total of 52 under the age of 50. She referred to an
article entitled, "Should Elderly Convicts be Kept in Prison?", and
read from it. She noted that down south it costs an average of
$20,000 per year for the typical inmate, while in Alaska it costs
$50,000. She knows that Senator Donley is truly concerned about
the criminal justice system and she believes that he would put the
dollars there, but if this had been in law since statehood it would
have cost the state $50 million more than what it has spent thus
far. It doesn't show up on a fiscal note because these inmates are
in for so long that there isn't any sentence that would increase in
just five years, but if a sentence was stretched out, there truly
would be a large price tag.
Number 1529
REPRESENTATIVE KERTTULA asked Ms. Knuth whether it's true that good
time is used as a management tool within a prison. She noted that
a person doesn't think about it before committing a crime, but once
in prison that person measures when he or she is getting out.
MS. KNUTH replied that is quite accurate. It's a significant
management tool. Some states are concerned that they have lost
that tool by going to a higher percentage. It's not much of a tool
for murder prisoners, but right now the state's good time is the
same time period a person is eligible for discretionary parole.
She explained that there are cases that need a significant period
of discretionary parole time in order to watch a person after
release. Some states are very concerned that they have lost that
parole time because it can only be the suspended portion of a
sentence.
Number 1590
REPRESENTATIVE CROFT noted, according to his calculation, that
there would be about a 100-month increase in the average sentence.
Number 1627
MS. KNUTH noted the average sentence length for first-degree murder
is about 70 years and close to 40 years for second-degree murder.
Those figures are deceptive, however, because they only measure
those who are currently incarcerated. They don't measure those who
have already been released.
Number 1679
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. When the federal government went down to 15
percent, they did it in conjunction with a comprehensive review of
federal sentencing in general. They decreased good time and pretty
much did away with the federal parole system. They also decreased
some of the national sentences that could be imposed for federal
crimes.
MR. McCUNE further stated that, by law, when people are released
under good time they are released to the jurisdiction of the parole
board. He pointed out that people who are released after lengthy
sentences have a hard time readjusting to society, even though
their behavior isn't bad in prison. They require a close watch to
make sure that they are making progress readjusting.
MR. McCUNE noted that there may well be an equal protection
challenge brought based on the difference in treating those
convicted of a first- and second-degree murder and other offenses,
thereby raising a fiscal impact on the department.
Number 1889
CHAIRMAN KOTT asked Mr. McCune whether there is still a presentence
investigation for first- and second-degree murder.
MR. McCUNE replied yes. He can't think of a case where a
presentence investigation has not been done.
Number 1916
CHAIRMAN KOTT asked Mr. McCune whether there would be any
motivation for a judge to be lenient on a sentence.
MR. McCUNE replied there is a truth-in-sentencing provision that
says a judge has to set out on the record how much good time is
possible to be earned. A judge should not, however, take that into
account when sentencing a person.
Number 2041
CHAIRMAN KOTT closed the meeting to public testimony.
Number 2045
REPRESENTATIVE CROFT noted, according to his calculation, a person
committing a crime at the age of 25 would be in prison until the
age of 65. The bill would increase that age by another ten years.
The question is, does the state want to keep a person until the age
of 65 or 75?
Number 2108
REPRESENTATIVE GREEN asked Ms. Knuth whether there is any
statistical data that show a plot of the average cost per age. He
has a hunch the last 10 years would rapidly increase and might be
as much as the prior 40 years.
Number 2136
MS. KNUTH replied no she has not been able to find a study
addressing that. In general, the average cost-of-care for an
inmate increases two and a half times each year after the age of
50. Right now, the state spends $50,000 per year for an inmate,
which equates to about $150,000 per year after the age of 50. The
legislature has seen the cost for medical treatment, such as heart
surgery, as the "wild card" in the Department of Corrections'
budget. She noted that the supreme court has told the department
it must provide ... to a certain level.
Number 2207
REPRESENTATIVE GREEN asked Ms. Knuth whether the delta between a
person staying in prison versus a person being released and taken
care of by society is significant.
Number 2228
MS. KNUTH replied it is a lot more expensive to deal with medical
issues while a person is incarcerated because of the need to
provide security services. She cited there was an incapacitated
inmate due to be released who had no family. As a result, a
guardian was appointed and that person was transferred to a nursing
home at one-third the cost.
Number 2281
CHAIRMAN KOTT asked Ms. Knuth whether the state is bound by the
Cleary decision to provide various medical services to inmates.
MS. KNUTH replied the state is bound by a statutory provision and
a constitutional provision. [She did not specify which ones]
Number 2294
REPRESENTATIVE MURKOWSKI said she appreciates the argument of cost,
but noted that these people have committed a murder and there are
specific sentences for those crimes no matter the cost.
Number 2363
CHAIRMAN KOTT asked Representative Murkowski whether she would be
happy for all first- and second-degree murderers to have no
possibility for parole for good time.
REPRESENTATIVE MURKOWSKI replied that's another subject for another
time.
MS. KNUTH noted that there is a huge population of first-degree
murderers who have 99 or more years to serve that would not get
out, but there are exceptional situations that get sentenced for
less. She cited as an example women who have been battered for
years who finally respond lethally. There is a class of offenders
who she would be very uncomfortable releasing at any age because
they are perfectly able to commit offenses for in perpetuity - sex
offenders.
Number 2445
REPRESENTATIVE CROFT asked Ms. Knuth whether...
TAPE 99-38, SIDE B
Number 0001
MS. KNUTH replied there are no murderers in halfway houses, and
there is nothing in between.
REPRESENTATIVE CROFT asked Ms. Knuth whether the level of
incapacitation has to get to a vegetated state.
MS. KNUTH replied, if a person was incapacitate and still in the
state's custody, a vegetated person could not be in a nursing home.
The state would have to keep that person within the confines of a
prison or have correctional officers stay around-the-clock at one
of the hospitals.
Number 0051
REPRESENTATIVE GREEN asked Ms. Knuth whether she knows of anybody
who has made it through a 99-year sentence; and, if so, has that
person slipped back into a previous behavior pattern.
Number 0123
MS. KNUTH replied, she believes, the oldest inmate in the state's
custody is around 67 years old. She noted that these people die
institutionalized. The department is looking at the population
that has sentences of 40 to 50 years. The population that has a
sentence of 99 years and up is in essence a life sentence.
Number 0157
REPRESENTATIVE GREEN wondered whether the other side of the
argument matters. In other words, is this just "window dressing"
because the chances are good that it won't matter?
MS. KNUTH replied no. The figure of $50 million, mentioned
earlier, excludes all of the inmates with a sentence of 99 years
and up. The figure is for the inmates that the department expects
to see released. She further noted that the figure is based on the
cost for care at $50,000 a year. It does not factor in any
geriatric medical costs.
Number 0193
CHAIRMAN KOTT said the sponsor indicated that the crux of the bill
is to get at those murderers walking down the street, not the
people with a 99-year-and-up sentence. He asked Ms. Knuth whether
a statute can be established discriminating based on age.
Number 0227
MS. KNUTH replied no. She noted that for first-degree murder the
minimum sentence is 20 years, and for second-degree murder the
minimum sentence is 5 years. There are some cases where the court
looks at the circumstances and chooses to impose a sentence of 15
years, for example. But the public hears that there has been a
murder and the judge only imposed a 15-year sentence. She
mentioned the only thing that the legislature can do is increase
the mandatory minimum sentence for second-degree murder, but that
takes away the opportunity for judges to look at cases
individually.
Number 0288
REPRESENTATIVE KERTTULA noted she handled two murder cases that
got five year sentences. She explained one was for a woman who was
caught drinking while driving and killed another person but had no
memory of it. It was real clear from the witnesses and
circumstances that she had nothing to do with putting herself
behind the wheel of the car. The other case involved an abused
wife who snapped and killed her husband. It was real clear from
the testimony that she would never be a danger to anybody else.
She would be reluctant to give up a judge's discretion because the
second-degree murder cases that go down to that level are real
unique circumstances. She also mentioned that parole and good time
work well under those circumstances.
Number 0344
JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley,
Alaska State Legislature, came before the committee to give closing
statements on SB 11. He said he's not sure of the 9 states Ms.
Knuth is referencing because 30 states have done some type of
truth-in-sentencing that goes hand-in-hand with serious crimes. He
noted that the state of Illinois has eliminated good time credits
and requires entire sentences to be imposed on prisoners for
first-degree murder. In addition, he mentioned that the House
Judiciary Standing Committee heard SB 1 - the "No Frills Prison
Act" - a few years ago. At which time, Senator Donley thought that
Act gave the Department of Corrections a lot of discretion for
severely medically able parole, but according to discussions with
the department, there is a case where a cancer inmate cannot be
released because he is not bedridden and could possibly commit the
crime again. He noted that Senator Donley is considering looking
at that statute again.
Number 0430
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
HB 180 - DRUGS WHERE MINORS ARE PRESENT
CHAIRMAN KOTT announced the next order of business is HB 180, "An
Act relating to the possession, manufacture, use, display, or
delivery of controlled substances while children are present."
Number 0477
REPRESENTATIVE JOHN COWDERY, Alaska State Legislature, came before
the committee as sponsor of HB 180. The bill is under the premise
that second-hand smoking is dangerous to a person's health;
therefore, what does cocaine do to children in their presence? The
intent of the bill is to charge a person with child abuse who
smokes cocaine or uses a controlled substance in front of an
underage child. The intent of the bill is to also charge a person
with child abuse who is caught drinking and driving with an
underage child and convicted.
Number 0545
PETER TORKELSON, Researcher for Representative John Cowdery, Alaska
State Legislature, came before the committee to explain the bill
further. He explained HB 375, from last year, opened up this very
section and set out a new provision. This bill deletes the
language from AS 11.51.110 - "Endangering the welfare of a child in
the second degree" - and uses that intent and moves it up to AS
11.51.100 - "Endangering the welfare of a child in the first
degree." It also expands the sphere of beyond just a dwelling or
vehicle. Representative Cowdery is concerned about a campsite or
an enclosed yard for example. As a result, the bill reads, "the
immediate physical presence of." He noted that the dwelling and
vehicle parameters are still maintained.
MR. TORKELSON further stated that the bill has two standards. One
for younger children, which is harsher, and one for older children.
In addition, AS 11.51.130 brings in possession. In other words,
maybe it can't be shown that drugs are being manufactured or used
in a particular place, but they are there.
Number 0678
REPRESENTATIVE MURKOWSKI asked Mr. Torkelson to clarify the age
breakdown in the bill.
MR. TORKELSON replied the current law only recognizes the
endangerment of children around drugs under the age of 10, which is
a small group of people. It doesn't hurt a child the age of 11?
he asked. At that age, a child is still impressionable. The bill
raises the bar to under the age of 16 with a stiffer penalty. The
bill also raises the bar to under the age of 18 with a less stiff
penalty because at that point a child is less vulnerable.
Number 0753
REPRESENTATIVE MURKOWSKI questioned the language removed in Section
2(a).
MR. TORKELSON noted that the language was removed because it became
redundant once the bar was raised.
REPRESENTATIVE GREEN noted in Section 1 the language "display" is
used, while in Section 3 the language "delivery" is used. He asked
Mr. Torkelson whether there is a reason for the difference.
MR. TORKELSON replied the language "display" is from the existing
controlled substance laws. He's not sure why the word "delivery"
was used instead of "display" in Section 3, however. He noted that
the standard of proof in (A) is knowing the possession was
occurring, while in (B) it is over actions - manufacture, use and
delivery. A reasonable person should be able to recognize when
those types of activities are occurring in that person's presence,
which is a lower standard of reckless disregard.
CHAIRMAN KOTT noted that the difference in verbiage still needs to
be clarified.
Number 0921
REPRESENTATIVE COWDERY informed the committee that Mr. Del Smith
[Deputy Commissioner, Department of Public Safety] thought it was
a good idea. He also noted that the attorneys in the Department of
Law felt that the penalties would be too hard to prosecute. It was
his decision to leave that hardness in the bill because a
prosecution is difficult even for easy cases. He is hoping that
the penalities would be just enough to get a person's attention.
Number 0990
MR. TORKELSON said it is not clear just by looking at the bill to
determine the penalty provisions. He explained in AS 11.51.100 the
penalty is a class C felony, and in AS 11.51.130 the penalty is a
class A misdemeanor.
Number 1040
REPRESENTATIVE MURKOWSKI asked Representative Cowdery whether he
has considered how this would play into the new laws relating to
the medical use of marijuana.
REPRESENTATIVE COWDERY replied he hasn't thought about it.
Number 1066
MR. TORKELSON noted that there are a couple of pending pieces of
legislation that are working in-concert with the medical use of
marijuana initiative.
Number 1088
CHAIRMAN KOTT asked Mr. Gerald Luckhaupt from the Legislative
Affairs Agency whether the medical use of marijuana would be
lawful; therefore it wouldn't fall within the parameters of the
bill, if it can be determined what is and isn't lawful.
Number 1094
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, came
before the committee to answer questions. He replied the bill says
knowing that a controlled substance is unlawful. The initiative
provides immunity for a person using medical marijuana from any
criminal charge, prosecution, or civil sanction. Therefore, it
would also provide immunity for the criminal act in the bill, if it
could even be argued that it was criminal. It would provide
immunity even if the word "unlawful" was not in the bill.
Number 1155
REPRESENTATIVE MURKOWSKI said, provided that a person has
registered.
MR. LUCKHAUPT replied no. The initiative doesn't require a person
to register.
REPRESENTATIVE MURKOWSKI said she understands that. She explained
that she attended a House Health, Education and Social Services
Standing Committee meeting where former-Representative Finkelstein
- sponsor of the initiative - indicated that in order for a person
to have immunity that person had to be registered.
Number 1201
MR. LUCKHAUPT said is it pretty clear that the initiative provides
immunity for every criminal action for a person who doesn't
register. If a person registers, then there is a list of
restrictions. He cited a person can't smoke in public, a person
can't use it anywhere where that person could be seen in public,
and a person can't use it in a way that endangers another person.
Those restrictions only apply to people who have registered. There
are no restrictions for a person who does not register. He stated
that former-Representative Finkelstein was probably incorrect on
that point.
Number 1262
REPRESENTATIVE GREEN asked Mr. Luckhaupt to explain why the word
"display" is used in one section and the word "delivery" is used in
another section.
Number 1292
MR. LUCKHAUPT replied "use" and "display" were both used in the
1992 initiative to recriminalize marijuana in regards to misconduct
involving a controlled substance in the sixth degree. Those terms
were not defined in statute, so he had to work them into the bill.
The use or display of marijuana is a violation of that statute. He
indicated that he probably left out the word "display" from the
other section unintentionally. He noted that "delivery" was not
included in the other section because he tried to pick out what is
being done in sections from current law. It seems, however, that
delivery should be included in the manufacturing section along with
use, manufacture, or display.
Number 1473
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came before
the committee to testify. She said it's hard for her to take a
position on this bill, especially the first section. The statute
- "Endangering the welfare of a child in the first degree" - is
unusual because it provides separate penalties for the various ways
to violate the law. She cited deserting a child in a dangerous
situation, leaving a child with a sex offender, and leaving a child
with a child abuser and the child suffers harm as the three ways to
violate the statute. The violation for the first two is a class C
felony. The violation for the third one depends on the harm
suffered to the child - either a class B felony or all the way down
to a class A misdemeanor. She mentioned that the sponsor needs to
think about how serious this conduct is, at which time, she can
give the committee a better idea of the department's position on
the bill. She further noted that the conduct covered in Section 1,
of the bill, is awfully broad. She's not certain that allowing a
child to be in the presence of a person smoking a "joint" should be
treated as a felony. Perhaps, it should be a class A misdemeanor.
She also mentioned she is concerned about the use of the word
"display." It's not very clear, and she's not sure why it should
be repeated in this bill. In terms of contributing to the
delinquency of a minor, she suggested making it one section and
taking out possession. As the bill is written now, it would be
illegal to have a "joint" in a person's pocket when around a child.
It's fine to have manufacture, use, or delivery under this section,
but possession should be removed.
Number 1744
REPRESENTATIVE CROFT asked Ms. Carpeneti what the penalty is for
using a controlled substance in front of a child.
MS. CARPENETI replied it depends on the person's culpable mental
state, which is another problem with the bill. It's not clear what
conduct comes under each penalty. She thinks, if a person is using
a controlled substance in front of a child it falls under
endangering the welfare of a child in the first degree. She
assumes that the sponsor intended it to be a felony, but there is
a class A misdemeanor in that section too. She noted, if a person
is holding a child and using drugs unlawfully, it falls under the
language, "immediate physical presence."
REPRESENTATIVE CROFT asked Ms. Carpeneti what the is penalty for
that.
MS. CARPENETI replied there is no penalty for that in the bill,
which is a problem that needs to be fixed. It might also come
under contributing to the delinquency of a minor which is a class
A misdemeanor. In that case, the culpable mental state is reckless
disregard.
REPRESENTATIVE CROFT asked Ms. Carpeneti whether the short answer
to his question is that the penalty comes under AS 11.51.130.
MS. CARPENETI replied yes.
Number 1981
REPRESENTATIVE COWDERY suggested visiting the Anchorage Police
Department and riding with a patrol officer on the weekend. That
is where this bill started to develop with him. He said, "It's an
eye opener."
Number 2064
MR. TORKELSON referred to AS 11.51.100 and noted that endangering
the welfare of a child in the first degree is a class C felony
under (a)(1) or (2). He was advised that a class C felony is the
base penalty applied in AS 11.51.100.
Number 2138
REPRESENTATIVE CROFT said it seems the more analogous section is a
class A misdemeanor and not a class C felony. A class C felony
seems to be more than a one level jump. He thinks it is not
categorized at all in AS 11.51.100 and it would be an error to
categorize it as a class C felony. There appears to be a graduated
penalty depending on the violation. He cited it's a "B" if the
child dies, a "C" if there's sexual contact or serious physical
injury, and an "A" if there's any physical injury at all.
Number 2260
REPRESENTATIVE JAMES asked how the existing statute for children in
need of aid would tie into this kind of an accusation. The statute
is specific in terms of when a child can or cannot be removed from
a home.
Number 2332
MS. CARPENETI replied, according to her impression, it seems that
a person smoking dope in front of a child would be on the low end
of priority for the Department of Health and Social Services. It
really is a civil division chore. She's doesn't have a good
answer.
Number 2416
MR. LUCKHAUPT noted that it would have some affect in the foster
care area. The amendments that have been made over the last few
years to foster care have included offenses against the families
under AS 11.51. The problem is there are different offenses listed
for the revocation of a license, for denying someone a license, and
for the placement of a child. The Senate has a bill to try...
TAPE 99-39, SIDE A
Number 0001
MR. LUCKHAUPT continued. Right now, the authority to create a
license is not in statute because of the changes that have been
made over the last few years. It's a real mess. He reiterated
this would affect the foster care area because there are specific
provisions that include references to offenses against the family
in terms of disqualifying a person from being a foster parent.
He's not sure whether that would or wouldn't remain in the new
draft of the Senate bill. The problem exists in other sections of
the title as well. He's trying to solve this one, then he will
look at the other sections.
Number 0117
REPRESENTATIVE JAMES said the whole issue of children is very
troublesome to her. It seems that the legislature wants to make
everything perfect for them when it can't. In the process,
families are being destroyed. She has had 19 different foster
children of her own and has been exposed to the net result of the
state getting involved. She is opposed to drug exposure to
children, but noted that tobacco and alcohol are lawful "drugs."
Number 0257
MR. LUCKHAUPT stated, in response to Representative Croft's
question earlier, an earlier version of the bill corresponded to
leaving a child someplace and risking injury to that child.
Number 0352
REPRESENTATIVE CROFT asked Mr. Luckhaupt whether it would be a
class B misdemeanor under Section 1 (a)(4) of the bill. There is
a sequence of penalties going down as the physical harm goes down
until there is a base level at which point a person has to prove
any harm.
MR. LUCKHAUPT replied no. If a person violates Section 1 (a)(4),
of the bill, it would be a class C felony in all cases. It doesn't
depend on whether or not a child suffers any injury. That is also
how it works for (a)(1) and (2) - intentionally deserting a child
and leaving a child with another person who has been convicted of
various things in the past. It's only (a)(3) that depends upon the
injury suffered by a child. It was the intent of the sponsor to
place (a)(4) in the class C felony range with (a)(1) and (2), but
that is not how the bill is written now.
Number 0429
REPRESENTATIVE CROFT noted that it's a class A misdemeanor, if a
child is left with another person under (a)(3) and that person has
previously mistreated or has had sexual contact with another child
and causes injury to the child - as long as it's not serious
physical injury. But, if somebody smokes a "joint" around a child,
it would be a class C felony.
MR. LUCKHAUPT replied yes that would be the penalty under (a)(4).
REPRESENTATIVE CROFT noted that the person doesn't even have to
smoke, but display or have...
MR. LUCKHAUPT replied that's correct. It is conduct that probably
can't be prosecuted, if it's done in a person's home because Raven
is still in law and controlling. Raven allows for the use and
display of marijuana in a person's own home as long as the
quantities are for personal use. He noted that, even though there
is a law against it, the Department of Law has not prosecuted
anybody successfully yet under misconduct of controlled substances
in the sixth degree. The cases that came after Raven allowed the
state to outlaw personal use and possession by minors. He noted
that, even though this might be a protected activity under the
privacy clause, it isn't something that is protected in front of
children. He further noted that, even though it was classified as
a violation under last year's child abuse bill, the sponsor feels
strongly that it should be penalized somewhat above that. It
seemed like a reasonable place to put that as a starting point,
since there are only class C felonies in AS 11.51.100 now for
conduct that is not based upon harm caused to a child.
Number 0644
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
CSSB 27(FIN) - ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD
CHAIRMAN KOTT announced the next order of business is CSSB 27(FIN),
"An Act relating to school records and driver license records of
certain children."
Number 0695
MICHAEL PAULEY, Legislative Assistant to Senator Loren Leman,
Alaska State Legislature, came before the committee to present the
sponsor statement. The bill ensures that parents would have access
to important records about their minor children. It also requires
school districts to share information with other districts about
potentially dangerous transfer students. The motion behind the
bill stems from a phone call from a constituent in Anchorage. The
constituent contacted the Division of Motor Vehicles [Department of
Administration] to check on her daughter's driving record because
she suspected that her daughter was driving with a suspended
license. The constituent was quite surprised when she was told
that her daughter's driving record is private and confidential, and
that even a parent does not have the right to know this
information. He noted that a parent must give consent before a
license is issued and that the law holds a parent responsible for
any damage caused by negligence or willful misconduct while a child
is operating a vehicle. But the same law denies parents any right
to check and see whether their son or daughter is driving safely.
It's the sponsor's belief that the provision in statute was
unintentional in the context of a parent-child relationship. It is
obviously needed protection for adults.
MR. PAULEY further noted that the current law allows for law
enforcement personnel to access the information, but there is no
exemption for parents. The bill corrects that problem by allowing
parental access, which would include any report of accidents and
convictions of traffic offenses. In addition, the bill provides a
provision guaranteeing parental access to school records. Upon
researching the bill, the sponsor was surprised to learn that there
is no law that guarantees parental access to those records, but a
provision was found in statute that guarantees a noncustodial
parent access to them. Therefore, Section 1 adds a provision that
guarantees parental access to school records for a child under the
age of 18. It also ensures that no school in Alaska would become
ineligible to receive federal funding: there is a federal law that
denies funding for any educational agency or institution that does
not allow parental access to the school records of minors. Section
2 requires school districts to transfer certain information about
a child who moves from one district to another. He cited an
offense punishable as a felony or an offense involving the use of
a deadly weapon as information that must be included in a school
record.
Number 0925
CHAIRMAN KOTT asked Mr. Pauley, hasn't legislation been passed that
deals with making available certain types of information about
students who are considered dangerous to their peers, teachers, or
environment? He wondered whether the bill is just an expansion of
that legislation.
MR. PAULEY replied the section dealing with the transfer of records
was an amendment added by Senator John Torgerson in the Senate
Finance Standing Committee. It was not part of the original bill.
He's not certain, at this point, what the other statute is that
Chairman Kott is referring to, but yes it is an expansion of
current policy.
Number 1006
CHAIRMAN KOTT said he can't recall the statute either. He
remembers legislation dealing with the transferring of students
within school districts and making sure certain information is
available to teachers and superintendents or something to that
effect.
Number 1049
REAGAN EIDSNESS came before the committee to testify. She is 15
years old. She doesn't have a driver's permit yet because she has
been too busy. She has liked driving since she was four years old.
She mentioned down south she would drive on her Mother's lap. She
doesn't have an opinion on this bill other than responsible
teenagers should be able to drive and adults should be able to
check their backgrounds.
Number 1102
REPRESENTATIVE MURKOWSKI said she is concerned about one parent
using this type of information to his or her advantage against the
other parent while the child is trapped in the middle. She asked
Mr. Pauley what sort of safeguards are built into the bill.
Number 1175
MR. PAULEY replied that was an issue that came up in the Senate.
He noted that existing law - AS 25.20.130 - says a parent who is
not granted custody under AS 25.20.060 - 25.20.130 has the same
access to the medical, dental, school and other records of the
child as the custodial parent. It was not the intent of the
sponsor to visit that issue, but he did receive some concerns from
the Council on Violence and Sexual Assault [Department of Public
Safety]. As a result, a provision was included for both records
saying that it does not apply to information that - if released -
would pose a threat to the health or safety of the child. He cited
the child's address as an example.
Number 1279
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. In response
to Chairman Kott's earlier question, the department is obligated
under AS 47.12.310 to provide schools with information that
suggests a student poses a threat to other students or school
staff. That information goes into the student's school file which
is not always transferred to a new school. The sponsor wants to
address that issue by requiring schools to make certain that the
record is transferred to a new school when there is information
involving the use of a weapon or felony offense.
CHAIRMAN KOTT said it is unfortunate that those records are not
following the students.
Number 1358
REPRESENTATIVE CROFT made a motion to move the CSSB 27(FIN) from
the committee with individual recommendations and the attached
fiscal note(s). There being no objection, it was so moved from the
House Judiciary Standing Committee.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:16 p.m.
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