02/01/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB73 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 73 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 1, 2013
1:05 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Charisse Millett
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 73
"An Act relating to the commencement of actions for felony sex
trafficking and felony human trafficking; relating to the crime
of sexual assault; relating to the crime of unlawful contact;
relating to forfeiture for certain crimes involving
prostitution; relating to the time in which to commence certain
prosecutions; relating to release for violation of a condition
of release in connection with a crime involving domestic
violence; relating to interception of private communications for
certain sex trafficking or human trafficking offenses; relating
to use of evidence of sexual conduct concerning victims of
certain crimes; relating to procedures for granting immunity to
a witness in a criminal proceeding; relating to consideration at
sentencing of the effect of a crime on the victim; relating to
the time to make an application for credit for time served in
detention in a treatment program or while in other custody;
relating to suspending imposition of sentence for sex
trafficking; relating to consecutive sentences for convictions
of certain crimes involving child pornography or indecent
materials to minors; relating to the referral of sexual felonies
to a three-judge panel; relating to the definition of 'sexual
felony' for sentencing and probation for conviction of certain
crimes; relating to the definition of "sex offense" regarding
sex offender registration; relating to protective orders for
stalking and sexual assault and for a crime involving domestic
violence; relating to the definition of 'victim counseling
centers' for disclosure of certain communications concerning
sexual assault or domestic violence; relating to violent crimes
compensation; relating to certain information in retention
election of judges concerning sentencing of persons convicted of
felonies; relating to remission of sentences for certain sexual
felony offenders; relating to the subpoena power of the attorney
general in cases involving the use of an Internet service
account; relating to reasonable efforts in child-in-need-of-aid
cases involving sexual abuse or sex offender registration;
relating to mandatory reporting by athletic coaches of child
abuse or neglect; making conforming amendments; amending Rules
16, 32.1(b)(1), and 32.2(a), Alaska Rules of Criminal Procedure,
Rule 404(b), Alaska Rules of Evidence, and Rule 216, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 73
SHORT TITLE: CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) JUD, FIN
02/01/13 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MICHAEL C. GERAGHTY, Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 73 on behalf of the
administration and responded to a question.
JOSEPH A. MASTERS, Commissioner
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 73 and
responded to questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 73 and
responded to questions.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 73, provided
comments and expressed concern with Section 30.
ACTION NARRATIVE
1:05:25 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:05 p.m. Representatives Keller, Millett,
Pruitt, and Gruenberg were present at the call to order.
Representatives Lynn, Foster, and LeDoux arrived as the meeting
was in progress.
HB 73 - CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:05:37 PM
CHAIR KELLER announced that the only order of business would be
HOUSE BILL NO. 73, "An Act relating to the commencement of
actions for felony sex trafficking and felony human trafficking;
relating to the crime of sexual assault; relating to the crime
of unlawful contact; relating to forfeiture for certain crimes
involving prostitution; relating to the time in which to
commence certain prosecutions; relating to release for violation
of a condition of release in connection with a crime involving
domestic violence; relating to interception of private
communications for certain sex trafficking or human trafficking
offenses; relating to use of evidence of sexual conduct
concerning victims of certain crimes; relating to procedures for
granting immunity to a witness in a criminal proceeding;
relating to consideration at sentencing of the effect of a crime
on the victim; relating to the time to make an application for
credit for time served in detention in a treatment program or
while in other custody; relating to suspending imposition of
sentence for sex trafficking; relating to consecutive sentences
for convictions of certain crimes involving child pornography or
indecent materials to minors; relating to the referral of sexual
felonies to a three-judge panel; relating to the definition of
'sexual felony' for sentencing and probation for conviction of
certain crimes; relating to the definition of "sex offense"
regarding sex offender registration; relating to protective
orders for stalking and sexual assault and for a crime involving
domestic violence; relating to the definition of 'victim
counseling centers' for disclosure of certain communications
concerning sexual assault or domestic violence; relating to
violent crimes compensation; relating to certain information in
retention election of judges concerning sentencing of persons
convicted of felonies; relating to remission of sentences for
certain sexual felony offenders; relating to the subpoena power
of the attorney general in cases involving the use of an
Internet service account; relating to reasonable efforts in
child-in-need-of-aid cases involving sexual abuse or sex
offender registration; relating to mandatory reporting by
athletic coaches of child abuse or neglect; making conforming
amendments; amending Rules 16, 32.1(b)(1), and 32.2(a), Alaska
Rules of Criminal Procedure, Rule 404(b), Alaska Rules of
Evidence, and Rule 216, Alaska Rules of Appellate Procedure; and
providing for an effective date."
1:07:19 PM
MICHAEL C. GERAGHTY, Attorney General, Department of Law (DOL),
to introduce HB 73, relayed that the bill's theme is important
for purposes of both law enforcement and prosecution because
it's consistent with the governor's goal of reducing domestic
violence (DV), sexual assault, and sexual abuse of minors in
Alaska. For far too long these crimes have been occurring in
Alaska at shameful rates, and for purposes of addressing this
problem, HB 73 is a step in the right direction. He went on to
explain that HB 73 contains provisions that would reverse a
recent Alaska Court of Appeals decision that misinterpreted
legislative intent with regard to increased sentencing ranges
for persons convicted of felony sex offenses; a petition for
review of that court decision is currently pending before the
Alaska Supreme Court, and, meanwhile, HB 73's proposed statutory
redress is meant to be consistent with the legislature's intent
when it last addressed those sentencing ranges, back in 2006.
House Bill 73 also contains provisions that would address a gap
in Alaska's sexual assault statutes by prohibiting
probation/parole officers from engaging in sexual conduct with
persons on probation/parole; this gap was brought to light by a
situation that occurred last year in which a [probation] officer
working under contract coerced [persons on probation] to have
sex with him.
ATTORNEY GENERAL GERAGHTY explained that HB 73 also contains
provisions that would provide greater protection to victims of
sexual assault, sexual abuse of a minor, and DV crimes. For
example, a hearing before a judicial officer would be required
before a person arrested for a bail violation resulting from a
DV crime could [again] be released; and evidence of a sex-
offense victim's sexual conduct before and after the offense
took place would be excluded. House Bill 73 also contains
provisions that would change the procedure used when determining
whether to grant a witness immunity under the Fifth Amendment -
immunity for testimony that could incriminate oneself.
Currently, a proffer containing a description of the testimony
in question is submitted by the witness's attorney, but there is
no procedure in place for the judge to verify the credibility of
the witness. Under the bill, the trial judge would be required
to hear the witness's testimony and assess his/her credibility
before deciding whether to grant immunity, and the state would
be allowed to appeal the judge's decision.
1:12:36 PM
JOSEPH A. MASTERS, Commissioner, Department of Public Safety
(DPS), after relaying that the DPS is steadfast in its
commitment to the governor's goal of ending sexual assault,
sexual abuse of minors, and domestic violence (DV) in Alaska,
indicated that HB 73 contains provisions that would strengthen
and broaden the investigative tools used by law enforcement to
apprehend perpetrators of these and other such crimes. Under
the bill, for example, law enforcement could obtain judicial
authorization to intercept communications in sex trafficking
cases; such crimes commonly require the perpetrators to
communicate and cooperate with each other. The bill would also
require a person who is the patron of a prostitute or of a
victim of sex trafficking to register as a sex offender; would
provide additional protections to victims and survivors of DV,
sexual assault, and stalking crimes; would add victims of human
trafficking, sex trafficking, and unlawful exploitation of a
minor crimes to the list of those who may apply for violent
crimes compensation; and would provide the attorney general with
the authority to designate another attorney working for the DOL
to also address applications for administrative subpoenas
seeking business records from Internet service providers in
cases involving child pornography, online enticement of a minor,
and unlawful exploitation of a minor crimes - currently only the
attorney general may address such applications. In conclusion,
he opined that HB 73 contains important provisions for the
safety and protection of Alaskans, and urged the committee to
support it.
ATTORNEY GENERAL GERAGHTY, in response to a question, confirmed
that the DOL has discussed HB 73 with the Office of Public
Advocacy (OPA) and the Public Defender Agency (PDA).
1:17:50 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), referring
to the sectional analysis included in members' packets,
explained that Sections 1 and 20-21 of HB 73 would reverse the
aforementioned Alaska Court of Appeals decision in Collins v.
State, 287 P.3d 791 (Alaska App. 2012), wherein for purposes of
sentencing a person convicted of a felony sex offense, the court
- based on a 2006 legislative letter of intent accompanying
legislation increasing the [presumptive] sentencing ranges for
felony sex offenses - misinterpreted the legislature's intent
and instead established non-statutory mitigating factors that
resulted in the perpetrator, under standards different than
those used for other [felony] crimes, going before a three-judge
panel for sentencing. Section 2 of HB 73 would remove the
statute of limitations for felony sex trafficking and human
trafficking crimes so as to allow the victims of such crimes to
bring civil action against their perpetrators at any time.
MS. CARPENETI explained that Sections 3-6 of HB 73, to address a
gap, would amend the statutes pertaining to the class C felony
crime of sexual assault in the third degree and the class A
misdemeanor crime of sexual assault in the fourth degree so as
to prohibit probation/parole officers from engaging in sexual
penetration or sexual contact with persons on probation/parole,
and would define the term, "probation officer" to include not
only probation officers appointed by the commissioner of the
Department of Corrections (DOC) but also probation officers
working in specialty courts who may not necessarily have been so
appointed. Again, this gap was brought to light by a situation
that occurred last year in which a probation officer working on
contract at a therapeutic court in Anchorage coerced
probationers to have sex with him. Current law already
prohibits law enforcement officers and correctional officers
from engaging in such activity with people in custody. In
response to a question, she noted that for purposes of a single
subject, the provisions of HB 73 address the subject of crimes.
1:25:03 PM
MS. CARPENETI explained that Section 7 of HB 73, to address
another gap, would amend the statute pertaining to the [class A
misdemeanor] crime of unlawful contact in the first degree such
that it would also apply to a person under official detention
who [knowingly contacts or attempts to contact] a witness or a
victim in violation of an order; this gap was brought to light
by a situation in Fairbanks in which a person, as a condition of
bail, was ordered not to contact the victim, but because the
person couldn't "make" bail, he was still incarcerated when he
contacted the victim in violation of the order, and thus his
particular circumstance did not fit the existing criteria
outlined in that statute. Section 8 of HB 73 would allow for
the forfeiture of property owned by the patron of a prostitute
or of a victim of sex trafficking if the property [was used to
institute, aid, or facilitate, or was received or derived from]
the crime of prostitution or the crimes of sex trafficking.
This provision addresses the governor's [goal of] reducing the
demand side of prostitution [and sex trafficking] in Alaska.
The existing forfeiture provision only addresses the crimes of
sex trafficking and the class C felony crime of prostitution,
wherein the prostitute is a child and the patron is an adult at
least three years older; as changed by Section 8, that provision
would then also apply to the class B misdemeanor crime of
prostitution, wherein the person is the patron of a prostitute
who's an adult.
REPRESENTATIVE LEDOUX expressed discomfort with the concept that
one's property could be subject to forfeiture before one is
convicted of a crime.
MS. CARPENETI, in response to questions and comments regarding
Section 8, relayed that forfeiture is not often pursued, that
detailed procedures have already been established to address
property owned by more than one person, that the standard used
in forfeiture proceedings, which are civil proceedings, is a
preponderance of the evidence, that the fact finder in such
proceedings has the discretion to determine what property, if
any, shall be forfeit, and that it can be difficult to
store/maintain forfeited property; acknowledged that it's
conceivable that one's property could be subject to forfeiture
without one having been convicted of a crime, that such does
already occasionally occur in situations involving bootlegging
or fish and game violations, and that perhaps the statute
Section 8 is proposing to amend ought to also be changed to
reflect that the property shall be subject to forfeiture, rather
than that it shall be forfeited; and ventured that Section 8's
proposed change is appropriate and could act as a significant
deterrent, though the provision may not be utilized much.
1:41:51 PM
MS. CARPENETI explained that Section 9 of HB 73 would remove the
statute of limitations for prosecuting the crimes of
distribution of child pornography, felony sex trafficking, and
human trafficking. In response to a question, she noted that
the crimes being added to the provision Section 9 is proposing
to change are all felonies. Sections 10 and 24-26 of HB 73
would provide the court with the discretionary authority to
order a person charged with [or convicted of] a domestic
violence crime to participate in a monitoring program with a
global positioning [device or similar technological means that
meet the guidelines for a monitoring program adopted by the DPS]
if the person is released on bail [before or after trial, or
pending appeal,] or to include such a requirement in a
protective order [- either a domestic violence protective order
or a protective order for sexual assault or stalking].
COMMISSIONER MASTERS, in response to questions regarding
Sections 10 and 24-26, explained that GPS technology is now
fairly commonplace, that both active and passive tracking
devices are currently available, that in the past the DPS has
utilized tracking devices under very specific circumstances in
certain cases but isn't currently actively engaging in any kind
of a monitoring system on a regular basis, and that the DOC does
have some experience "in this area" via its current electronic
monitoring programs. In response to comments and further
questions, he surmised that the bill - in providing the court
with the authority to order a person to participate in a
monitoring program - addresses both existing and future
technologies via the language in Sections 24 and 26 that says,
"a monitoring program with a global positioning device or
similar technological means"; mentioned that there are other
states that currently have electronic monitoring programs;
pointed out that currently electronic technologies are being
used to victimize people; ventured that [Sections 10 and 24-26]
would provide law enforcement with the ability to instead use
these same technologies as a tool by which to protect people;
and explained that in adopting any monitoring program, the DPS -
while taking into consideration the type of equipment available,
it's capabilities, it's intended usage, how the program would be
operated, any potential pitfalls, and what type of program would
be best for Alaska - would conduct extensive research, seek
input from stakeholders, determine which guidelines to
institute, and promulgate regulations following the requirements
of the Administrative Procedure Act.
MS. CARPENETI added that passage of these provisions of the bill
would enable the DPS to start that process.
2:02:14 PM
MS. CARPENETI explained that Section 11 of HB 73 would require
persons arrested for a violation of a condition of release in
connection with a crime involving domestic violence to appear
before a judicial officer in person - or by telephone in
situations involving an arraignment - before they can again be
released from custody; under current law, this requirement
applies to persons arrested for a crime involving DV before they
can initially be released from custody. [Section 12] of HB 73
would expand the list of crimes for which an application can be
made to intercept a private communication, to also include the
crimes of sex trafficking in the first and second degree and
human trafficking in the first degree; again, such crimes
generally require the perpetrators to communicate and cooperate
with each other. Section 13 of HB 73 would expand the provision
that excludes evidence of a sex-offense victim's sexual conduct
such that it would then exclude conduct occurring either before
or after the offense took place; would limit when a defendant
may apply to have such evidence admitted regardless, to not
later than five days before trial; [and would provide an
exception to that limitation if the request is based on evidence
admitted at trial that was not available to the defendant before
trial]. The provision Section 13 is proposing to change applies
to the crimes of sexual assault, sexual abuse of a minor, and
unlawful exploitation of a minor, [as well as to attempts to
commit any of those crimes].
MS. CARPENETI explained that Sections 14-15 and 43-44 of HB 73
would change the procedure used when determining whether a
witness in a criminal prosecution is entitled to [transactional
immunity under the Fifth Amendment to the U.S. Constitution].
Currently, a judge considers a proffer submitted by the
witness's attorney containing a description of the testimony in
question, but there is no procedure in place for the judge to
verify the credibility of the witness. Under the bill, the
judge would also be required to speak with the witness about
his/her testimony before deciding whether to grant the immunity,
and enter findings of fact and conclusions of law in a sealed
written order, and the state would be allowed to appeal the
judge's decision. All the information disclosed during such in
camera proceedings - under both existing law and under the
bill's proposed changes - is sealed and cannot be used for any
purpose whatsoever, and neither the defense nor the prosecution
is present. In response to a question, she explained that in
such situations, the judge has the authority to disclose to one
attorney at the Department of Law only whether the privileged
testimony is in connection with a high-level felony, a low-level
felony, or a misdemeanor. These proposed changes, she posited
in conclusion, will help the court address the issue [of
transactional immunity] in a better-informed manner.
2:12:57 PM
MS. CARPENETI explained that Sections 16-17 of HB 73 would
require that the notice for claiming credit toward a sentence of
imprisonment for time spent in a treatment program be filed at
least 10 days prior to the hearing; these sections apply to
sentencing hearings and to disposition hearings, respectively,
and greater efficiencies are anticipated under their proposed
changes. Section 18 of HB 73 would add the crimes of sex
trafficking to the list of crimes for which the court would be
precluded from suspending the imposition of a sentence.
Section 19 of HB 73 would require that when sentencing a person
convicted of two or more crimes of distribution of child
pornography, possession of child pornography, or distribution of
indecent material to minors, a consecutive term of imprisonment
shall be imposed for some additional term of imprisonment for
each additional crime, [or each attempt or solicitation to
commit the offense]; each conviction should be recognized via
the imposition of consecutive time in prison, she proffered,
even if for just one additional day. Section 22 of HB 73 would
add the crimes of sex trafficking in the first degree and online
enticement of a minor to the definition of what constitutes a
sexual felony for purposes of AS 12.55; this provision addresses
an oversight that occurred when the presumptive sentencing
ranges for felony sex offenses were increased in 2006, she
surmised.
MS. CARPENETI explained that Section 23 of HB 73 would require
patrons of a prostitute who is a child to register as sex
offenders. Section 27 of HB 73 would provide a conforming
change to the statute addressing the warnings on a protective
order to reflect that the maximum fine for a misdemeanor
violation of such an order has recently been raised from $5,000
to $10,000. Section 28 of HB 73 would expand the definition of
what constitutes a "victim counseling center" to include
military organizations so as to ensure that communications
between victims of domestic violence and counselors working at a
military victim counseling center remain confidential. In
response to a question, she offered her understanding that the
definition Section 28 is proposing to expand already addresses
tribal organizations. Section 29 of HB 73 would add the crimes
of human trafficking, sex trafficking, and unlawful exploitation
of a minor to the list of crimes for which a victim may apply
for violent crimes compensation.
2:19:22 PM
MS. CARPENETI explained that Sections 30 and 40-41 of HB 73,
respectively, would require that as part of Alaska's judicial
retention evaluations, the Alaska Judicial Council (AJC) shall
also compile and disseminate to the public data about a judge's
compliance with the statute requiring that a sentencing report
include information about the financial, emotional, and medical
effects of the crime on the victim and his/her need for
restitution; would directly amend the Alaska Rules of Criminal
Procedure to require that either a victim impact statement, or a
written explanation of why the victim or his/her representative
could not be interviewed, be included in a presentence report;
and would directly amend the Alaska Rules of Criminal Procedure
[to require that the content of the victim impact statement in
the presentence report be taken into consideration when
preparing the sentencing report, and] to allow such content to
be taken into consideration for other appropriate purposes.
These provisions are intended to strengthen the recognition of
victims' rights in Alaska.
MS. CARPENETI explained that Section 31 of HB 73 would add
convictions of an unclassified sexual felony or a class A sexual
felony to the list of convictions for which [mandatory parole
for good behavior, referred to as a good time deduction in the
term of imprisonment,] would not be available. Sections 32-35
of HB 73 would provide the attorney general with the authority
to designate another attorney working for the DOL to also
address applications for administrative subpoenas seeking
business records from Internet service providers in cases
involving child pornography, online enticement of a minor, and
unlawful exploitation of a minor crimes; currently, only the
attorney general may address such applications, and the changes
effected by these sections of the bill would address instances
in which the attorney general himself/herself is unavailable.
Having two attorneys with the authority to address such
applications would be helpful to law enforcement since the
investigation of such crimes can require pretty fast action.
Section 36 of HB 73 would expand the list of circumstances for
which the court may determine that reasonable efforts to reunite
a child with his/her family need not be taken by the Office of
Children's Services (OCS), to include circumstances wherein the
court has found by clear and convincing evidence that the parent
or guardian has committed sexual abuse against that child or
against any of his/her other children, or is registered or
required to register as a sex offender. This proposed change
would allow Alaska law to comply with federal requirements.
2:28:59 PM
MS. CARPENETI explained that Sections 37-38 of HB 73 would,
respectively, add athletic coaches to the list of those people
who, if they have reasonable cause to suspect that a child has
suffered harm as a result of child abuse or neglect, are
required to report the harm immediately to the Department of
Health and Social Services (DHSS); and would define the term,
"athletic coaches" such that it would include both volunteer and
paid coaches: "a paid or a volunteer leader or assistant of a
sports team in a public or private school, public or private
postsecondary institution, or sponsored by a state municipality,
or other local government organization, or a sports team that
receives public funding". In response to comments and
questions, she explained that in order to violate the statutory
reporting requirement, a person would first have to have
reasonable cause to suspect that harm occurred and then fail to
report it - in other words, harm that isn't noticed is not
required to be reported; ventured that some coaches, even
volunteer coaches, spend a significant amount of time with
children and so should have a duty to report harm if they see
it; and relayed that a violation of the statutory reporting
requirement would be a class A misdemeanor.
REPRESENTATIVE LEDOUX expressed discomfort with the changes
proposed by Sections 37-38 as they relate to volunteers, made
reference to [troop] leaders of youth organizations, and
questioned why the list of those who have a duty to report isn't
also being expanded to include all who volunteer their services.
REPRESENTATIVE MILLETT noted that there have been cases wherein
great harm to children has resulted from a failure to report.
MS. CARPENETI concurred. She then went on to explain that
Section 39 of HB 73 would directly amend the Alaska Rules of
Criminal Procedure to limit the publication of child pornography
required during the discovery process in a criminal trial; under
this provision, however, the defendant and his/her attorney may
view the material [at a law enforcement or prosecution
facility,] and the court may send the material directly to an
out-of-state expert witness. Section 42 of HB 73 would directly
amend Rule 404(b) of the Alaska Rules of Evidence to allow
evidence of any prior similar bad acts to be admitted in
prosecutions involving physical or sexual assault or abuse of a
minor; this would be similar to what's allowed in prosecutions
involving sexual assault crimes and domestic violence crimes.
Currently, for prosecutions involving physical or sexual assault
or abuse of a minor, there is a limitation wherein only evidence
of those similar bad acts that occurred within the prior 10
years is admissible; under the bill, that 10-year limitation for
such evidence in such prosecutions would be removed. Under this
change, the court would determine, on a case-by-case basis,
whether to allow evidence of a particular prior bad act.
MS. CARPENETI explained that Sections 45 and 46 of HB 73,
respectively, outline the applicability of the bill's various
provisions and provide for an effective date.
CHAIR KELLER mentioned that members' packets contain the fiscal
notes for HB 73.
REPRESENTATIVE LEDOUX, returning attention to the changes
proposed by Sections 37-38, questioned whether the bill should
be changed so as to mandate that everyone shall report suspected
child abuse or neglect.
MS. CARPENETI expressed disfavor with such a change. Those who
currently have a statutory duty to report are people who have
significant contact with children and thus have the opportunity
observe them and the state of their health.
2:48:25 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), said
that although impacted by many of HB 73's provisions, the ACS
won't have a problem implementing most of them. Referring to
the changes proposed by Sections 10 and 24-26 - giving the court
the discretionary authority to order a person charged with or
convicted of a domestic violence crime to participate in a
monitoring program with a global positioning device or similar
technological means that meet the guidelines for a monitoring
program adopted by the DPS - she provided her understanding of
what occurs now with regard to the in-house monitoring system
the DOC has been effectively using, and confirmed that employing
any such system for respondents of domestic violence protective
orders would be new under the bill.
MS. MEADE - noting that some of the provisions of the bill
remove the statute of limitations for certain crimes, and that
some provisions increase and expand the definitions of certain
crimes - relayed that these proposed changes will undoubtedly
result in more case filings, though how many more or what the
impact will be on the ACS is not yet known and thus any costs
associated with the increase in filings would likely just be
absorbed by the ACS. Referring to the changes proposed by
Sections 14-15 and 43-44 - regarding changing the procedure used
when determining whether a witness in a criminal prosecution is
entitled to transactional immunity under the Fifth Amendment to
the U.S. Constitution - she explained that those provisions
won't result in any substantial change in the ACS's practice
except to the extent that they require a judge to make and then
seal written findings that can then be immediately appealed.
The Alaska Court of Appeals can routinely handle any such
expedited proceedings, but the more of them that come before the
court, the greater the issue of prioritizing them then becomes,
she cautioned.
2:52:37 PM
MS. MEADE, to outline some concerns the ACS has with HB 73,
referred to the statutory and court rule changes proposed by
Sections 30 and 40-41 regarding judicial retention evaluations,
sentencing reports, presentencing reports, and victim impact
statements. She pointed out that the DOC, via the use of a
template, already routinely includes in their presentencing
reports either a victim impact statement or an explanation of
why the victim couldn't be interviewed, and cautioned that
Section 40's proposed court rule change requiring that that
information always be included - although not constituting a
substantial change in the DOC's procedure - could therefore have
the unintended consequence of delaying sentencing hearings in
instances wherein that information isn't included for some
reason. Such delays may be of concern to those who are already
concerned about the length of time sentencing in felony cases
can take.
MS. MEADE warned that Section 30's proposed statutory change -
requiring the Alaska Judicial Council (AJC) to also compile and
disseminate data about a judge's compliance with the statute
stipulating that particular information about the victim be
included in a sentencing report - could be problematic in that
the AJC and the ACS have been unable to come up with a specific
mechanism by which to arrive at fair statistics, because how
well a judge is considering victim information is subjective,
thereby making it difficult to determine whether any particular
judge is sufficiently doing so. One possible mechanism to try,
she ventured, might be to change the felony-judgment form used
by the courts such that judges would be able to check certain
boxes in order to illustrate [the degree of their consideration
of the victim's information]. The ACS's fiscal note reflects an
estimated cost of $20,000 for making [a corresponding] change to
the ACS's case management system so that the AJC could be
provided with the data it needs for its judicial retention
evaluations. Another point to consider, she added, is that
judges are already very attentive to victims at sentencing
proceedings in those rare instances when the victims attend.
The ACS, she assured the committee in conclusion, would be happy
to address internally in some fashion any perceived lack of
judicial attentiveness to victims, rather than via Section 30's
current approach.
[HB 73 was held over.]
2:58:14 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Dept. Law Sectional.pdf |
HJUD 2/1/2013 1:00:00 PM |
HB 73 |
| Letter from Governor Parnell.pdf |
HJUD 2/1/2013 1:00:00 PM |
HB 73 |
| Fiscal Note Court System.pdf |
HJUD 2/1/2013 1:00:00 PM |
HB 73 |