02/08/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR8 | |
| HB316 | |
| HB298 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 8 | TELECONFERENCED | |
| += | HB 298 | TELECONFERENCED | |
| += | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 8, 2010
1:09 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Herron
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 8
Proposing amendments to the Constitution of the State of Alaska
limiting appropriations from certain mineral revenue, relating
to the balanced budget account, and relating to an appropriation
limit.
- MOVED HJR 8 OUT OF COMMITTEE
HOUSE BILL NO. 316
"An Act relating to post-conviction DNA testing, to the
preservation of certain evidence, and to the DNA identification
registration system; relating to post-conviction relief
procedures; relating to representation by the public defender;
amending Rule 35.1, Alaska Rules of Criminal Procedure; and
providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 298
"An Act relating to the crimes of harassment, possession of
child pornography, and distribution of indecent material to a
minor; relating to suspending imposition of sentence and
conditions of probation or parole for certain sex offenses;
relating to aggravating factors in sentencing; relating to
registration as a sex offender or child kidnapper; amending Rule
16, Alaska Rules of Criminal Procedure; and providing for an
effective date."
- MOVED CSHB 298(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HJR 8
SHORT TITLE: CONST. AM: APPROP. LIMIT/MINERAL REVENUE
SPONSOR(S): REPRESENTATIVE(S) KELLY
01/26/09 (H) READ THE FIRST TIME - REFERRALS
01/26/09 (H) STA, JUD, FIN
04/02/09 (H) STA AT 8:00 AM CAPITOL 106
04/02/09 (H) Heard & Held
04/02/09 (H) MINUTE(STA)
04/07/09 (H) STA AT 8:00 AM CAPITOL 106
04/07/09 (H) Moved Out of Committee
04/07/09 (H) MINUTE(STA)
04/07/09 (H) STA RPT 2DP 3DNP 1NR 1AM
04/07/09 (H) DP: JOHNSON, LYNN
04/07/09 (H) DNP: SEATON, GRUENBERG, PETERSEN
04/07/09 (H) NR: GATTO
04/07/09 (H) AM: WILSON
02/03/10 (H) JUD AT 1:00 PM CAPITOL 120
02/03/10 (H) Heard & Held
02/03/10 (H) MINUTE(JUD)
02/08/10 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 316
SHORT TITLE: POST-CONVICTION DNA TESTING; EVIDENCE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/27/10 (H) READ THE FIRST TIME - REFERRALS
01/27/10 (H) JUD, FIN
02/05/10 (H) JUD AT 1:00 PM CAPITOL 120
02/05/10 (H) -- MEETING CANCELED --
02/08/10 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 298
SHORT TITLE: SEX OFFENSES; OFFENDER REGIS.; SENTENCING
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/19/10 (H) READ THE FIRST TIME - REFERRALS
01/19/10 (H) JUD, FIN
01/25/10 (H) JUD AT 1:00 PM CAPITOL 120
01/25/10 (H) Heard & Held
01/25/10 (H) MINUTE(JUD)
01/27/10 (H) JUD AT 1:00 PM CAPITOL 120
01/27/10 (H) Heard & Held
01/27/10 (H) MINUTE(JUD)
02/01/10 (H) JUD AT 1:00 PM CAPITOL 120
02/01/10 (H) Heard & Held
02/01/10 (H) MINUTE(JUD)
02/08/10 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DEREK MILLER, Staff
Representative Mike Kelly
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HJR 8, provided a
comment on behalf of the sponsor, Representative Kelly.
RICHARD SVOBODNY, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 316 on behalf of the
administration.
SUE STANCLIFF, Special Assistant
Office of the Commissioner
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed amendments to HB 298.
DEREK DeGRAAF, Sergeant, Supervisor
Technical Crimes Unit (TCU)
Alaska Bureau of Investigation (ABI)
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed amendments to HB 298.
RICHARD SVOBODNY, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of proposed amendments to HB 298.
KATHRYN MONFREDA, Chief
Criminal Records and Identification Bureau
Division of Statewide Services
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of proposed amendments to HB 298.
JEFFREY A. MITTMAN, Executive Director
American Civil Liberties Union of Alaska (ACLU of Alaska)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed amendments to HB 298.
ACTION NARRATIVE
1:09:04 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:09 p.m. Representatives Ramras, Holmes,
Dahlstrom, Lynn, and Gruenberg were present at the call to
order. Representatives Herron and Gatto arrived as the meeting
was in progress.
HJR 8 - CONST. AM: APPROP. LIMIT/MINERAL REVENUE
1:12:38 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE JOINT RESOLUTION NO. 8, Proposing amendments to the
Constitution of the State of Alaska limiting appropriations from
certain mineral revenue, relating to the balanced budget
account, and relating to an appropriation limit.
REPRESENTATIVE HOLMES relayed that she is now more comfortable
with her understanding of HJR 8.
1:13:46 PM
DEREK MILLER, Staff, Representative Mike Kelly, Alaska State
Legislature, on behalf of the sponsor, Representative Kelly,
noted that a question posed during the resolution's previous
hearing was whether the proposed calculation would use fiscal
years or calendar years, and offered his belief that that
question has been addressed to members' satisfaction.
1:14:27 PM
REPRESENTATIVE DAHLSTROM moved to report HJR 8 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HJR 8 was reported from the
House Judiciary Standing Committee.
REPRESENTATIVE GRUENBERG mentioned that he's reviewed HJR 8 in
terms of potential legal and constitutional issues, and that the
remarks he would be making on the bill report reflect only his
opinion regarding those aspects of the resolution.
The committee took an at-ease from 1:15 p.m. to 1:17 p.m.
HB 316 - POST-CONVICTION DNA TESTING; EVIDENCE
[CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 316, "An Act relating to post-conviction DNA
testing, to the preservation of certain evidence, and to the DNA
identification registration system; relating to post-conviction
relief procedures; relating to representation by the public
defender; amending Rule 35.1, Alaska Rules of Criminal
Procedure; and providing for an effective date."]
1:18:02 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), on behalf of the
administration, explained that HB 316 does three things to
address Alaska's problem of domestic violence (DV) and sexual
assault. First, it would create a system for the retention of
evidence in certain types of cases, such as homicide cases and
sexual assault cases, and the retention of that evidence would
be for specific periods of time, both prior to someone being
charged with an offense [and after a person is convicted]. For
cold cases, evidence should be retained for substantially longer
than it is now, and so HB 316 would set some retention standards
for serious cases; currently, law enforcement agencies can throw
out evidence whenever they want because there are no standards
with regard to how long evidence must be retained. He mentioned
a situation wherein when the Juneau Police Department recently
moved to a new building, [the paperwork for] a case involving
the death of a seven-year-old in the 1960s was found behind a
filing cabinet, and although he believed that he could have
prosecuted that case, there was no longer any evidence available
- it had been discarded.
MR. SVOBODNY relayed that second, HB 316's evidence retention
requirements would address post-conviction relief cases wherein
those convicted beyond a reasonable doubt, after all their
appeals have been exhausted, then seek to come back to court in
order to try to convince the court that there is some other
reason why their conviction should be set aside. The proposed
changes affecting post-conviction relief procedures are
necessary because of the advent of deoxyribonucleic acid (DNA)
analyses that assist the criminal justice system in making sure
that the right person is convicted; whether DNA analyses show
that the right person was convicted or that the wrong person was
convicted and therefore the right person still needs to be
sought out, the proposed changes will affect cases involving
homicide, DV, and sexual assault. Third, HB 316 would create a
task force to address standards for evidence collection for all
law enforcement agencies so as to keep them up to date on new
technology/analyses.
1:22:14 PM
MR. SVOBODNY noted that in the U.S. Supreme Court case,
[District Attorney's Office for the Third Judicial District v.
Osborne], the media inaccurately stated that Alaska law doesn't
address post-conviction DNA testing; Alaska law does do so, but
it's via case law rather than via statute. It is generally the
DOL's belief that it is better that laws be made by the
legislature rather than by the courts, because when done by the
courts, it's done on a case-by-case basis only and so could take
many cases over the course of decades to fully develop a
particular area of law, whereas when the legislature makes laws,
it does so as a package, dealing will all the public policy
issues at one time. In Osborne, the U.S. Supreme Court
determined that laws setting the standards for how cases are
dealt with after conviction are better left to the individual
states to develop, and HB 316 does just that for Alaska. He
mentioned that HB 316 has received a lot input from the DOL, law
enforcement agencies, the Public Defender Agency (PDA), and
other interested parties.
MR. SVOBODNY, in response to questions, said that the DOL's
fiscal note is pretty accurate and reflects that post-
conviction-relief cases are occurring now; that in terms of
testing DNA samples, HB 316 would be limited to situations
involving crimes against people; that the estimates of $4,000
and $2,000 for fiscal year 2011 (FY 11) and FY 12, respectively,
address costs associated with the aforementioned proposed task
force; that in terms of evidence retention, the bill won't cost
law enforcement agencies any more than the existing piecemeal
approach; that any evidence retention constitutes somewhat of an
unfunded mandate currently borne by law enforcement agencies;
that the bill outlines timeframes for the retention of evidence;
that the proposed task force would establish good evidence-
gathering standards for all law enforcement officers; and that
although currently a member of the defense bar is not included
in the list of those who shall sit on the proposed task force,
the establishment of standards for evidence storage won't
necessarily require input from the defense bar.
[HB 316 was held over.]
HB 298 - SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:36:59 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 298, "An Act relating to the crimes of
harassment, possession of child pornography, and distribution of
indecent material to a minor; relating to suspending imposition
of sentence and conditions of probation or parole for certain
sex offenses; relating to aggravating factors in sentencing;
relating to registration as a sex offender or child kidnapper;
amending Rule 16, Alaska Rules of Criminal Procedure; and
providing for an effective date." [Before the committee was
HB 298 as amended on 2/1/10; left pending from the meeting on
2/1/10 was the motion to adopt Amendment 8 and the motion to
adopt Amendment 14.]
REPRESENTATIVE GATTO withdrew Amendment 14, labeled 26-
GH2859\A.21, Luckhaupt, 2/1/10, which read:
Page 1, line 2, following "minor;":
Insert "relating to sex offenders and child
kidnappers;"
Page 5, following line 6:
Insert a new bill section to read:
"* Sec. 11. AS 12.55.015(a) is amended to read:
(a) Except as limited by AS 12.55.125 -
12.55.175, the court, in imposing sentence on a
defendant convicted of an offense, may singly or in
combination
(1) impose a
[(A)] fine when authorized by law and as
provided in AS 12.55.035; [OR
(B) REPEALED]
(2) order the defendant to be placed on
probation under conditions specified by the court that
may include provision for active supervision;
(3) impose a definite term of periodic
imprisonment, but only if an employment obligation of
the defendant preexisted sentencing and the defendant
receives a composite sentence of not more than two
years to serve;
(4) impose a definite term of continuous
imprisonment;
(5) order the defendant to make restitution
under AS 12.55.045;
(6) order the defendant to carry out a
continuous or periodic program of community work under
AS 12.55.055;
(7) suspend execution of all or a portion
of the sentence imposed under AS 12.55.080;
(8) suspend imposition of sentence under
AS 12.55.085;
(9) order the forfeiture to the
commissioner of public safety or a municipal law
enforcement agency of a deadly weapon that was in the
actual possession of or used by the defendant during
the commission of an offense described in AS 11.41,
AS 11.46, AS 11.56, or AS 11.61;
(10) order the defendant, while
incarcerated, to participate in or comply with the
treatment plan of a rehabilitation program that is
related to the defendant's offense or to the
defendant's rehabilitation if the program is made
available to the defendant by the Department of
Corrections;
(11) order the forfeiture to the state of a
motor vehicle, weapon, electronic communication
device, or money or other valuables, used in or
obtained through an offense that was committed for the
benefit of, at the direction of, or in association
with a criminal street gang;
(12) order the defendant to have no
contact, either directly or indirectly, with a victim
or witness of the offense until the defendant is
unconditionally discharged;
(13) for a defendant convicted of an
offense requiring the defendant to register under
AS 12.63, order the defendant to post a sign in the
yard of the defendant's residence or on the
defendant's door, if the defendant resides in a
multifamily residential complex, stating that the
resident is a sex offender or child kidnapper."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
1:39:12 PM
REPRESENTATIVE DAHLSTROM made a motion to adopt Amendment 15,
labeled 26-GH2859\A.24, Luckhaupt, 2/3/10, which read:
Page 1, line 5, following "kidnapper;":
Insert "relating to administrative subpoenas for
certain records involving exploitation of children;"
Page 7, following line 31:
Insert a new bill section to read:
"* Sec. 16. AS 44.23 is amended by adding a new
section to read:
Sec. 44.23.080. Subpoena power of attorney
general in cases involving use of an Internet service
account in the exploitation of children. (a) In an
investigation of an offense under AS 11.41.452,
11.41.455, or AS 11.61.125 - 11.61.128 and on
reasonable cause to believe that an Internet service
account has been used in the exploitation or attempted
exploitation of children, the attorney general may
issue in writing and cause to be served a subpoena
requiring the production and testimony described in
(b) of this section.
(b) A person receiving a subpoena under (a) of
this section shall disclose, for the account that is
the subject of the subpoena,
(1) the name of the person holding the
account;
(2) the address associated with the
account;
(3) local and long distance telephone
connection records, including records of session times
and durations for the account;
(4) length of service, including service
start date, and types of service used by the account;
(5) the telephone or instrument number or
other subscriber number or identifier, including any
temporarily assigned network address for the account;
and
(6) the means and source of payment for the
service, including a credit card or bank account
number associated with the account.
(c) At any time before the return date specified
on the subpoena, the subpoenaed person may petition
the district court for the judicial district in which
the person resides or does business for an order
modifying or setting aside the subpoena or for an
order sealing the court record.
(d) A subpoena under this section must describe
the objects required to be produced and must prescribe
a return date with a reasonable period of time within
which the objects must be assembled and produced.
(e) If no case or proceeding arises from the
production of records or other documents under this
section within a reasonable time after those records
or documents are produced, the attorney general shall
either destroy the records and documents or return
them to the person who produced them.
(f) A subpoena issued under this section may be
served as provided for service of subpoenas under Rule
45, Alaska Rules of Civil Procedure, or for service of
process under Rule 4, Alaska Rules of Civil Procedure.
(g) Except as provided in this section, any
information, records, or data reported or obtained
under a subpoena under this section shall remain
confidential and may not be disclosed unless the
disclosure occurs in connection with a criminal case
related to the subpoenaed materials."
Renumber the following bill sections accordingly.
Page 9, line 5:
Delete "Section 16 of this Act applies"
Insert "Sections 16 and 17 of this Act apply"
REPRESENTATIVE HOLMES objected.
1:39:37 PM
SUE STANCLIFF, Special Assistant, Office of the Commissioner,
Department of Public Safety (DPS), explained that Amendment 15
would add a proposed new AS 44.23.080 to HB 298, establishing
the authority to use an administrative subpoena when gathering
certain records in cases involving exploitation of child, and
outlining what information can be sought, such as the name of
the Internet Protocol (IP) address holder and other information
related to that IP address.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MS. STANCLIFF added that this proposed new section of statute
addresses the initial phase of information gathering for an IP
address associated with child exploitation.
1:41:26 PM
DEREK DeGRAAF, Sergeant, Supervisor, Technical Crimes Unit
(TCU), Alaska Bureau of Investigation (ABI), Division of Alaska
State Troopers, Department of Public Safety (DPS), proffered
that the proposed subpoena authority would be a tremendous asset
to those investigating child exploitation cases, particularly
given that as technology has changed over the past 10-15 years,
many of the crimes against children happen on line.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. DeGRAAF explained that currently, when law enforcement
officers receive information about such computer-assisted
crimes, they must apply for a search warrant in order to find
out the account information linked with a particular IP address,
and this takes a tremendous amount of time. [Amendment 15]
would substantially reduce the amount of time it would take to
acquire the same information, and the information being sought
would be very narrow in scope [as outlined in proposed AS
44.23.080(a)(1)-(6)]. He remarked that Amendment 15 is modeled
after similar law already adopted in many other states to combat
child exploitation.
REPRESENTATIVE DAHLSTROM sought assurance that Amendment 15
would simply allow law enforcement to react more quickly in
computer-assisted child exploitation cases.
MR. DeGRAAF said that's correct.
REPRESENTATIVE GRUENBERG characterized Amendment 15 as very
comprehensive. Referring to Amendment 15's proposed AS
44.23.080(c), he asked why it references only district court.
Unless there is a good reason for such a limitation, he opined,
it should also reference superior court.
1:45:56 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), surmising that the
drafter probably just copied language from similar federal law,
which references federal district court, opined that the
language of Amendment 15 should instead make reference to any
court of competent jurisdiction.
REPRESENTATIVE GRUENBERG - noting that AS 12.37.200 and AS
12.37.300 address applications made in conformity with federal
law for court orders concerning the use of pen registers and
trap devices, and the access, disclosure, and use of
communications in electronic storage - surmised that Amendment
15 is intended to provide for a narrow exception to those
statutes in cases involving child exploitation or attempted
child exploitation, allowing for the use of an administrative
subpoena instead of a court order.
MR. SVOBODNY concurred, adding that the same standard of
reasonable suspicion would be required.
REPRESENTATIVE GRUENBERG, referring to the 1990 Alaska Court of
Appeals case, State v. Chryst, 793 P.2d 538, questioned whether
there is also no expectation of privacy - under the right of
privacy as outlined in Article I, Section 22, of the Alaska
State Constitution - for the types of information outlined in
Amendment 15's proposed AS 44.23.080(b)(6), that being bank
account numbers and credit card numbers.
MR. SVOBODNY said that although he is unaware of an Alaska
Supreme Court case specifically addressing bank information,
there is a U.S. Supreme Court case wherein the court held that
bank information is not subject to an expectation of privacy.
REPRESENTATIVE GRUENBERG, in response to comments, cautioned
against passing something contrary to given law.
MR. SVOBODNY, in response to a question, relayed that he would
be comfortable if Amendment 15 were to be amended such that the
term, "district court" as used in proposed AS 44.23.080(c) would
be changed to the term, "a court of competent jurisdiction". In
response to another question, he relayed that he is unaware of
any Alaska case that addresses the types of information outlined
in Amendment 15's proposed AS 44.23.080(b)(5).
REPRESENTATIVE GRUENBERG relayed that he simply doesn't want to
have the proposed statute struck down.
CHAIR RAMRAS expressed a desire to give law enforcement
sufficient tools to address child pornography crimes.
MR. DeGRAAF explained that Amendment 15's proposed AS
44.23.080(b)(6) would give law enforcement a better tool so as
to be able to ask the right questions early on in an
investigation. He mentioned that the type of information
outlined in paragraph (6) has helped exonerate people.
MR. SVOBODNY, in response to questions, relayed that the type of
subpoena power being authorized by Amendment 15 is not unusual,
nor is it as broad as similar subpoena power used with regard to
other types of cases; that for some of those other types of
cases, the same standard of probable cause is required; that he
is not aware of any Alaska laws or cases that allow a
warrantless search for bank account numbers or credit card
numbers.
REPRESENTATIVE GRUENBERG suggested that more research on this
issue be conducted.
2:07:20 PM
REPRESENTATIVE GRUENBERG, after some clarification, made a
motion to conceptually amend Amendment 15 such that the term,
"the district court" as used in proposed AS 44.23.080(c) would
be changed to the term, "a court of competent jurisdiction".
There being no objection, Amendment 15 was so amended.
REPRESENTATIVE HOLMES removed her objection.
CHAIR RAMRAS, noting that there were no further objections,
announced that Amendment 15, as amended, was adopted.
2:09:25 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 16,
labeled 26-GH2859\A.26, Luckhaupt, 2/5/10, which read:
Page 4, line 25:
Delete "and"
Insert "[AND]"
Page 4, line 26, following "(2)":
Insert "the material is harmful to minors; and
(3)"
Page 5, following line 6:
Insert a new bill section to read:
"* Sec. 11. AS 11.61.128 is amended by adding a new
subsection to read:
(e) In this section, "harmful to minors" means
(1) the average individual, applying
contemporary community standards, would find that the
material, taken as a whole, appeals to the prurient
interest in sex for persons under 16 years of age;
(2) a reasonable person would find that the
material, taken as a whole, lacks serious literary,
artistic, educational, political, or scientific value
for persons under 16 years of age; and
(3) the material depicts actual or
simulated conduct in a way that is patently offensive
to the prevailing standards in the adult community as
a whole with respect to what is suitable for persons
under 16 years of age."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
REPRESENTATIVE HOLMES explained that Amendment 16 addresses
[Amendment 1's proposed new Section 5] regarding the
distribution of indecent materials to minors; currently, that
proposed new section doesn't contain a standard regarding what
constitutes indecent materials, and is therefore subject to
constitutional challenge. Amendment 16 would define the term
["harmful to minors"], using a tougher standard than that
pertaining to the distribution of indecent material to an adult.
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
She then removed her objection.
CHAIR RAMRAS announced that Amendment 16 was adopted.
2:11:53 PM
REPRESENTATIVE GRUENBERG, after some clarification, made a
motion to adopt Amendment 17, which read [original punctuation
provided]:
Page 6, line 29:
Following "engaged in":
Delete "a"
Insert "an ongoing"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
The committee took an at-ease from 2:14 p.m. to 2:15 p.m.
REPRESENTATIVE GRUENBERG explained that Amendment 17 would
specify that the proposed aggravating factor in Section 14
pertaining to dating and sexual relationships - proposed AS
12.55.155(c)(18)(D) - could only apply in situations where there
is "an ongoing" sexual relationship between victim and
perpetrator. Surmising that proposed AS 12.55.155(c)(18)(D) as
currently written could apply even if the perpetrator had had
sex with the victim many years ago, he offered his belief that
that isn't the intent of that provision. In response to a
question, he clarified that Amendment 17 only addresses the
language in proposed AS 12.55.155(c)(18)(D) pertaining to a
sexual relationship, not the language pertaining to a dating
relationship.
MR. SVOBODNY mentioned that this proposed aggravating factor was
suggested by prosecutors in the Palmer office, who'd spoken
about dating relationships and sexual relationships as two
different, distinct things. A dating relationship may not
involve sex but does still contain an element of trust. He
noted that such was the case with the girl who'd recently been
stabbed at an Anchorage high school; the boy she was dating told
her to close her eyes, and once she did, he stabbed her. In
response to a question, he relayed that the DOL does not support
Amendment 17.
REPRESENTATIVE HERRON pointed out that a sexual relationship
might have ended only a short time prior to the crime, adding
that he prefers proposed AS 12.55.155(c)(18)(D) as it's
currently written.
REPRESENTATIVE GRUENBERG withdrew Amendment 17.
2:21:29 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 18,
labeled 26-GH2859\A.25, Luckhaupt, 2/5/10, which read:
Page 1, line 14, of Amendment 12, following "trial.":
Insert "The court may also issue any other orders
that it considers appropriate in the interests of
justice."
REPRESENTATIVE DAHLSTROM objected.
REPRESENTATIVE GRUENBERG explained that Amendment 18 [would
amend Amendment 12, as amended - which rewrote Section 16's
proposed court rule change - and would allow the court to issue
any order that it considers appropriate; Amendment 12, labeled
26-GH2859\A.3, Luckhaupt, 1/26/10, as amended, read:
Page 8, lines 3 - 31:
Delete all material and insert:
"DIRECT COURT RULE AMENDMENT. Rule 16(b), Alaska
Rules of Criminal Procedure, is amended by adding a
new paragraph to read:
(9) Restriction on Availability of Certain
Material or Property. Notwithstanding (b)(1)(A)(iv) of
this rule, the court shall deny any request by the
defendant to copy, photograph, duplicate, or otherwise
reproduce any property or material that may be illegal
or prohibited under AS 11.41.455(a) or defined as
"child pornography" under 18 U.S.C. 2256, provided the
prosecution makes the property or material reasonably
available to the defendant. Property or material shall
be deemed to be made reasonably available to the
defendant if the prosecution provides, at a
prosecution or law enforcement facility, ample
opportunity for inspection, viewing, and examination
of the property or material by the defendant, the
defendant's attorney, and any individual the defendant
may seek to qualify to furnish expert testimony at
trial."
REPRESENTATIVE GRUENBERG added that he just wants to make
certain that the court knows it has jurisdiction to issue any
other orders, though that may already be implied, he
acknowledged.
MR. SVOBODNY observed that [Section 16's] proposed court rule
change addresses the issue of discovery and that Amendment 18
doesn't appear to do so directly, and indicated that the court
already has jurisdiction over this issue.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 18. Representatives
Dahlstrom, Herron, Gatto, Lynn, and Ramras voted against it.
Therefore, Amendment 18 failed by a vote of 2-5.
The committee took an at-ease from 2:25 p.m. to 2:29 p.m.
2:29:13 PM
CHAIR RAMRAS turned the committee's attention to Amendment 8
[which had been set aside on 2/1/10 with the motion to adopt it
left pending as the result of an objection by Representative
Holmes for the purpose of discussion]; Amendment 8, labeled 26-
GH2859\A.6, Luckhaupt, 1/26/10, read:
Page 7, lines 1 - 31:
Delete all material and insert:
"* Sec. 15. AS 12.63.020(b) is amended to read:
(b) The department shall adopt, by regulation,
procedures to notify a sex offender or child kidnapper
who, on the registration form under AS 12.63.010,
lists a conviction for a sex offense or child
kidnapping that is a violation of a former law of this
state or a law of another jurisdiction, of the
duration of the offender's or kidnapper's duty under
(a) of this section for that sex offense or child
kidnapping. As a part of the regulations, the
department shall
(1) require the offender or kidnapper to
supply proof acceptable to the department of
unconditional discharge and the date it occurred; and
(2) if the registration requirement of the
offender or kidnapper arises from AS 12.63.100(5)(B),
require the offender or kidnapper to register for the
period of time that is required by the state or
jurisdiction from which the conviction and duty to
register arises.
* Sec. 16. AS 12.63.100(5) is amended to read:
(5) "sex offender or child kidnapper" means
a person
(A) convicted of a sex offense or child
kidnapping in this state or another jurisdiction
regardless of whether the conviction occurred before,
after, or on January 1, 1999; or
(B) required to register as a sex offender
or child kidnapper in another state or jurisdiction
for a crime that is not a sex offense or child
kidnapping as defined in this section but for which
the person is required to register as a sex offender
or child kidnapper in another state or jurisdiction;"
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 14"
Page 9, following line 4:
Insert a new subsection to read:
"(b) Sections 15 and 16 of this Act relating to
registration of sex offenders and child kidnappers
whose duty to register arises from conviction in
another state or jurisdiction for a crime that is not
defined as a sex offense under AS 12.63.100(6) or a
child kidnapping under AS 12.63.100(2) shall register,
report, and file as required under AS 12.63.010 if
their duty to register in the other state or
jurisdiction has not expired on the effective date of
this Act regardless of whether the conviction for the
crime in the other state or jurisdiction occurred
before, on, or after the effective date of this Act."
Reletter the following subsection accordingly.
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
REPRESENTATIVE DAHLSTROM, in response to a request, said she
would object for the purpose of discussion.
REPRESENTATIVE GRUENBERG made a motion to amend Amendment 8 such
that Amendment 8's proposed change to page 9, following line 4,
of the bill would instead read:
"(b) Sections 15 and 16 of this Act relating to
registration of sex offenders and child kidnappers
whose duty to register arises from conviction in
another state or jurisdiction for a crime that is not
defined as a sex offense under AS 12.63.100(6) or a
child kidnapping under AS 12.63.100(2) shall register,
report, and file as required under AS 12.63.010 if
their duty to register in the other state or
jurisdiction has not expired on the effective date of
this Act if the crime in the other state or
jurisdiction occurred after the effective date of this
Act."
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that the amendment to
Amendment 8 would cure a constitutional problem in Amendment 8's
proposed applicability section, which, as currently written,
could run afoul of Doe v. State, 189 p.3d 999 (Alaska 2008),
wherein the Alaska Supreme Court held that the ex post facto
provision of Article I, Section 15, of the Alaska State
Constitution precludes the State from requiring sex offender
registration of those convicted of sex offense crimes committed
prior to the enactment of the sex offender registration statute.
As currently written, Amendment 8's proposed applicability
section would require that sex offenders moving to Alaska from
another state who have to register in that other state also have
a duty to register in Alaska regardless of whether the
underlying crime they were convicted of was committed before,
on, or after the effective date of this bill. Under the
amendment to Amendment 8, in contrast, such persons would only
have to register in Alaska if the underlying crime occurred
after the effective date of the bill. He offered his belief
that problems would result if the amendment to Amendment 8 were
not adopted.
2:32:30 PM
REPRESENTATIVE HERRON argued that such perpetrators would be
required to register in Alaska only because they are required to
register in another state, not because they committed a crime in
that other state.
REPRESENTATIVE GRUENBERG offered his belief, however, that in
any resulting litigation, the court would say that the same
principal as in Doe applies. "It doesn't make any difference
whether they're convicted in the state of Alaska or the state of
Tennessee; the fact is, they were convicted of a crime that
occurred before the effective date of this provision," he added.
REPRESENTATIVE HERRON reiterated his argument.
REPRESENTATIVE GRUENBERG, acknowledging that Doe didn't address
the laws of another state, surmised that the question would
become whether [Doe] would operate to bar Alaska from requiring
registration, adding that he believes it would. Just because
someone has to register in another state does not absolve one of
the ex post facto requirement, and to adopt Amendment 8 without
the amendment is asking for a constitutional challenge.
REPRESENTATIVE HERRON opined that taking that chance would be
worth it, and again reiterated his argument.
2:35:05 PM
KATHRYN MONFREDA, Chief, Criminal Records and Identification
Bureau, Division of Statewide Services, Department of Public
Safety (DPS), after relaying that her duties include management
of the sex offender registry, offered her belief that
Representative Gruenberg may be correct because a crime in
another state would be being defined as a sex offense in Alaska
and so would be subject to that Alaska Supreme Court decision,
and therefore the department would be unable to require
registration unless the crime occurred after the effective date
of the bill.
MR. SVOBODNY offered his belief that the administration would
simply be regulating the people who have to register in another
state, and would not be dealing with the issue of punishment, as
the court, in Doe, did. He likened that regulating aspect to
that which occurs when a third or subsequent DUI becomes a
felony rather than remaining a misdemeanor. "It's a fight we're
willing to take on," he added.
2:38:30 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), offered his understanding that
the Alaska Supreme Court has already ruled and determined that
for purposes of Alaska law, registration on a sex offender
registry is considered not regulatory but rather a punishment,
and so under that ruling, even though someone is registered in
another state, by coming here and being put on the Alaska
registry, that administrative action of placing him/her on the
registry is, in fact, under Alaska law, a punishment. On those
grounds, the ACLU of Alaska believes that the court would again
rule that there is an ex post facto issue. "[We] understand
that ... the Department of Law takes a different position ...
and has asked to litigate this, but we are trying to be as clear
as possible in what the state of the law is and why this is
problematic," he concluded.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of the amendment to Amendment 8.
Representatives Herron, Gatto, Lynn, Dahlstrom, and Ramras voted
against it. Therefore, the amendment to Amendment 8 failed by a
vote of 2-5.
2:39:59 PM
CHAIR RAMRAS offered his understanding that Alaska has a two-
tier system regarding registration length - either 15 years or
life - and that there is a concern that if this two-tier
registration system is applied to someone coming from another
state who is required to register for less than 15 years, for
example, and then he/she then has to register in Alaska for 15
years, that that would essentially constitute an extra penalty.
MR. SVOBODNY concurred. In response to questions, he explained
that there are two types of states: those with tiers, like
Alaska, and those with risk assessments wherein the person has
to register indefinitely until it's been determined that he/she
is no longer a risk. In the latter type of state, a person
could be convicted of burglary and have to register as a sex
offender, but under Alaska law there is no crime of burglary
that's equivalent to a sex offense, and so such a person would
not have to register in Alaska. If the proposed registration
provision were challenged, the DOL would argue that it is merely
regulating the sex offenders who move to Alaska - giving the
public notice that those people are sex offenders - not
punishing them for moving to Alaska. In response to a further
question, he relayed that most states take a tiered approach due
to the cost associated with an assessment approach and due to
the fact that many states are attempting to come into compliance
with the federal Adam Walsh Child Protection and Safety Act,
which has a three-tier system.
CHAIR RAMRAS asked whether the DOL supports Amendment 8.
MR. SVOBODNY said yes.
REPRESENTATIVE GRUENBERG questioned whether Mr. Svobodny
understood that Chair Ramras was referring to the entirety of
Amendment 8.
MR. SVOBODNY indicated that he might not have understood that.
The committee took an at-ease from 2:45 p.m. to 2:47 p.m.
MR. SVOBODNY, in response to comments, expressed concern that
Amendment 8 stipulates that the registration requirement would
be established by the DPS by regulation, "as opposed to just
being the law." To clarify his earlier statement, he said he
would prefer a different amendment but would accept Amendment 8
as opposed to just leaving the bill as is with regard to this
issue. In response to a question, he explained that even as
currently written, the bill requires sex offenders who move to
Alaska to register in Alaska. The issue that Amendment 8 is
meant to address is which tier such a sex offender would fit
into.
MS. MONFREDA, in response to a question, relayed that the number
of calls from sex offenders in other states questioning whether
they would have to register if they moved to Alaska has tripled
since the Doe decision came out, to about 500-700 such calls per
month.
2:50:03 PM
REPRESENTATIVE GRUENBERG sought clarification regarding the
other amendment that the DOL would prefer over Amendment 8.
MR. SVOBODNY indicated that it was one that would require a
person convicted of one offense to have to register for 15
years, and require a person convicted of two or more offenses to
have to register for life, and does not specifically include a
reference to the crime of child kidnapping because that's
already addressed elsewhere in statute.
CHAIR RAMRAS indicated that that's the amendment currently
labeled 26-GH2859\A.20, Luckhaupt, 1/28/10.
The committee took an at-ease from 2:51 p.m. to 2:56 p.m.
CHAIR RAMRAS withdrew Amendment 8.
2:56:50 PM
CHAIR RAMRAS made a motion to adopt Amendment 19, labeled 26-
GH2859\A.20, Luckhaupt, 1/28/10, which read:
Page 6, following line 31:
Insert a new bill section to read:
"* Sec. 15. AS 12.63.020 is amended by adding a new
subsection to read:
(c) A person required to register under
AS 12.63.010 for a conviction in another jurisdiction
that is not similar to an offense in this state shall
register for a period described in
(1) (a)(2) of this section if the person
has been convicted of only one offense;
(2) (a)(1) of this section if the person
has been convicted of two or more offenses for which
the person is required to register in another
jurisdiction."
Renumber the following bill sections accordingly.
Page 9, line 3:
Delete "Sections 1 - 15"
Insert "Sections 1 - 16"
Page 9, line 5:
Delete "Section 16"
Insert "Section 17"
REPRESENTATIVE HOLMES objected.
MS. MONFREDA clarified that she'd misspoke earlier, and that
she'd meant to instead relay that the department receives
approximately 135 calls per month from sex offenders in other
states questioning whether they would have to register if they
moved to Alaska. The DPS, she added, supports Amendment 19
because all offenders could then be managed in the same fashion.
MR. SVOBODNY said the DOL supports Amendment 19.
REPRESENTATIVE HOLMES expressed concern that under Amendment 19,
there would still be offenders who could raise a constitutional
challenge because they would have to register for longer than
they had to in the state they moved from. She said she did not
want to set up a system that results in litigation and in such
offenders not having to register.
REPRESENTATIVE GATTO offered his belief that the purpose of
Amendment 19 is to keep such offenders out of Alaska.
REPRESENTATIVE GRUENBERG, in response to a question, offered his
understanding that his amendment to Amendment 8 is not necessary
for Amendment 19 because Alaska law has a general applicability
provision which says that statutes only apply to crimes
committed after the effective date of those statutes. He said
he agrees with Representative Holmes, however, regarding a
potential constitutional problem, and suggested that inserting
the language of Amendment 8 that says, ["required to register as
a sex offender or child kidnapper in another state or
jurisdiction for a crime that is not a sex offense or child
kidnapping as defined in this section but for which the person
is required to register as a sex offender or child kidnapper in
another state or jurisdiction"] into Amendment 19 would cure
that potential constitutional problem.
REPRESENTATIVE GRUENBERG then withdrew his suggestion, surmising
that it wouldn't be applicable.
The committee took an at-ease from 3:03 p.m. to 3:05 p.m.
REPRESENTATIVE HOLMES indicated that she still thinks that
Amendment 19 has a constitutional problem, but she doesn't have
an easy solution, and so she would be maintaining her objection.
3:05:59 PM
A roll call vote was taken. Representatives Lynn, Dahlstrom,
Herron, Ramras, and Gatto voted in favor of Amendment 19.
Representatives Gruenberg and Holmes voted against it.
Therefore, Amendment 19 was adopted by a vote of 5-2.
CHAIR RAMRAS indicated his understanding that [the provision
addressed by Amendment 19] would only apply to sex offenders who
move to Alaska [on or] after the effective date.
3:07:35 PM
REPRESENTATIVE DAHLSTROM moved to report HB 298, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
298(JUD) was reported from the House Judiciary Standing
Committee.
3:08:09 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:08 a.m.
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