Legislature(2019 - 2020)GRUENBERG 120
03/11/2019 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Consideration of Governor's Appointee: Nancy Dahlstrom, Department of Corrections | |
| HB52 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 52 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 11, 2019
1:38 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Gabrielle LeDoux, Vice Chair
Representative Chuck Kopp
Representative Louise Stutes
Representative Adam Wool
Representative Laddie Shaw
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONSIDERATION OF GOVERNOR'S APPOINTEE: NANCY DAHLSTROM~
DEPARTMENT OF CORRECTIONS
HOUSE BILL NO. 52
"An Act eliminating marriage as a defense to certain crimes of
sexual assault; relating to enticement of a minor; relating to
harassment in the first degree; relating to harassment in the
second degree; relating to indecent viewing or production of a
picture; relating to the definition of 'sexual contact';
relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 52
SHORT TITLE: CRIMES;SEX CRIMES;SENTENCING; PAROLE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/20/19 (H) READ THE FIRST TIME - REFERRALS
02/20/19 (H) JUD, FIN
03/11/19 (H) JUD AT 1:30 PM GRUENBERG 120
WITNESS REGISTER
NANCY DAHLSTROM, Commissioner-Designee
Department of Corrections
Juneau, Alaska
POSITION STATEMENT: Testified as Governor Dunleavy's appointee
to Commissioner of the Department of Corrections.
AMANDA PRICE, Commissioner-Designee
Department of Public Safety
Juneau, Alaska
POSITION STATEMENT: Introduced HB 52 on behalf of Governor
Dunleavy and answered committee questions.
KACI SCHROEDER, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided a sectional analysis of HB 52 and
answered committee questions.
LAURA BROOKS, Deputy Director
Division of Health & Rehab Services
Department of Corrections
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
52.
KATHRYN MONFREDA, Director
Division of Statewide Services
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
52.
ACTION NARRATIVE
1:38:00 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:38 p.m. Representatives Eastman, Wool,
Stutes, Shaw, Kopp, and Claman were present at the call to
order. Representative LeDoux arrived as the meeting was in
progress.
^Consideration of Governor's Appointee: Nancy Dahlstrom,
Department of Corrections
Consideration of Governor's Appointee: Nancy Dahlstrom,
Department of Corrections
1:38:36 PM
CHAIR CLAMAN announced that the first order of business would be
a confirmation hearing for the governor's appointee to the
Department of Corrections, Nancy Dahlstrom. He opened public
testimony on Commissioner Dahlstrom's appointment.
1:39:01 PM
NANCY DAHLSTROM, Commissioner-Designee, Department of
Corrections, provided biographical information about herself.
She mentioned she has worked in both the private and public
sectors including eight years in the Alaska House of
Representatives. She said Governor Michael J. Dunleavy asked
her to serve as Commissioner of the Department of Corrections
(DOC). She called it an honor to accept his offer. She
acknowledged she does not have a corrections background. She
said Governor Dunleavy's administration is not "doing business
as usual." She pointed to her professional skillset and said it
will help make her successful in this position.
1:39:56 PM
COMMISSIONER DAHLSTROM addressed three goals for DOC: To ensure
the safety of all employees and inmates, to provide successful
reentry programs for inmates, and to recruit and retain
qualified employees.
1:41:01 PM
COMMISSIONER DAHLSTROM detailed changes she has made during her
brief time in charge of DOC. She said several policies were
suspended or amended to prioritize inmate and employee safety as
well as to honor and recognize victims' rights.
COMMISSIONER DAHLSTROM announced her commitment to helping
incarcerated individuals reintegrate into society. She said
people make mistakes and DOC programs can help them become
proud, law-abiding citizens. She said a new team member has
been hired to focus primarily on reentry services.
COMMISSIONER DAHLSTROM said DOC employs 1,900 people. She said
she created a dedicated group to generate ideas and proposals to
address challenges in hiring and retention.
COMMISSIONER DAHLSTROM thanked the committee and said she looked
forward to answering its questions.
1:42:40 PM
REPRESENTATIVE STUTES said it is her understanding that DOC
anticipates sending prisoners out of state. She asked how that
will be cost-saving. She mentioned reading about another state
that incurred major costs after sending its prisoners out of
state.
COMMISSIONER DAHLSTROM confirmed that Governor Dunleavy's
proposed fiscal year (FY) 2020 budget contains a line item for
sending 500 inmates out of state as a cost-saving measure. She
said she could not speak to the actual dollar amount as her
administrative services director (ASD) had handled that. She
said she is open to new information and learning new things.
She said she would read any information provided to her.
REPRESENTATIVE STUTES said she would forward the things she had
read to Commissioner Dahlstrom.
1:44:06 PM
CHAIR CLAMAN said DOC turned down the federal Second Chance
[Act] (SCA) Grant. He asked how many other states have applied
for that grant since its inception.
COMMISSIONER DAHLSTROM answered "I don't know
CHAIR CLAMAN asked how long the strategic planning portion of
the grant was to last.
COMMISSIONER DAHLSTROM said the grant was for one year.
1:44:46 PM
CHAIR CLAMAN asked which part of the grant was for one year.
COMMISSIONER DAHLSTROM said the million dollars dispersed
through the grant would be for one year. She said nearly half
of that money was for hiring new personnel. She said the state
would have to reapply for the grant at the end of the year
without guarantee it would receive it again. She said she felt
it was not sustainable to hire new employees who would have to
be let go or absorbed into state government.
1:45:16 PM
CHAIR CLAMAN said the committee may conduct further
investigation on the topic. He said his research suggested
there was a $100,000 strategic planning grant and Alaska was one
of five states to receive it. He said the million-dollar grant
was over three years, involved very little hiring, and was more
directed toward reentry services. He suggested Commissioner
Dahlstrom did not know many details about this grant.
1:45:51 PM
COMMISSIONER DAHLSTROM clarified that there are two different
SCA grants. She said [DOC] accepted the $100,000 grant, which
was matched with $100,000 from the State of Alaska (SOA). She
said $10,000 was used before her appointment to send two people
to Washington, D.C. and back. She said DOC is determining the
best way to use the remaining funds. She reiterated her
understanding that the million-dollar grant required the extra
staff.
1:46:33 PM
CHAIR CLAMAN asked her to confirm that her understanding was the
[million-dollar] grant was only for one year, and that his
sources informing him the grant was for three years did not
match her understanding.
COMMISSIONER DAHLSTROM answered correct.
1:46:49 PM
CHAIR CLAMAN stated that he is still very concerned about the
decision to turn down the million-dollar grant. He said that
money would have been directed toward the reentry services for
which she had advocated. He restated that Alaska was one of
only five states to receive the planning grant. He added that
Alaska was one of only three states to receive the other grant.
He asked if Commissioner Dahlstrom was aware of the competitive
nature of the application process.
COMMISSIONER DAHLSTROM said she was not involved in the
application process.
CHAIR CLAMAN asked if the decision to turn the grant down was
made by her or others in the administration.
COMMISSIONER DAHLSTROM said she fully made the decision to turn
down the grant based on the hiring requirement.
CHAIR CLAMAN restated his dissatisfaction with the decision.
1:48:06 PM
REPRESENTATIVE WOOL asked Commissioner Dahlstrom about her
thoughts regarding the efficacy of private prisons.
COMMISSIONER DAHLSTROM asked whether Representative Wool was
referring to sending prisoners out of state or bringing people
in to run Alaska's prisons.
REPRESENTATIVE WOOL clarified he meant private corporations
coming to Alaska to run prisons.
COMMISSIONER DAHLSTROM answered "I have not had one discussion
with anyone about that."
REPRESENTATIVE WOOL reframed his question. He asked
Commissioner Dahlstrom for her opinion on private prisons and
whether they are "something that is worth looking into."
COMMISSIONER DAHLSTROM answered she is open to facts and
looking and learning." She opined DOC can do a very good job
running its own facilities.
1:49:04 PM
REPRESENTATIVE STUTES asked for confirmation that SOA had
previously sent prisoners out of state only to bring them all
back. She said she found it curious the idea of sending
prisoners out of state was being contemplated.
COMMISSIONER DAHLSTROM confirmed that SOA had sent out and
brought back prisoners. She said both times were legislative
decisions.
REPRESENTATIVE STUTES asked for confirmation that it would
require a legislative decision to send prisoners out of state.
COMMISSIONER DAHLSTROM answered no. She said she may have
misspoken. She said sending 500 prisoners out of state is a
line item in Governor Dunleavy's proposed budget, however the
DOC commissioner has always had the authority to [send out
prisoners].
1:50:20 PM
REPRESENTATIVE STUTES asked if Commissioner Dahlstrom is in
favor of sending prisoners out of state.
COMMISSIONER DAHLSTROM said she would follow through with the
budget given to her. She said if she is directed to send
prisoners out of state, she will.
REPRESENTATIVE STUTES noted that Commissioner Dahlstrom had
previously answered the decision to send out prisoners is at the
commissioner's discretion. She asked Commissioner Dahlstrom if
she personally was in favor of sending inmates out of state.
COMMISSIONER DAHLSTROM answered "I'm here representing the
governor's views on his budget."
REPRESENTATIVE STUTES restated her question. She asked if
Commissioner Dahlstrom, aside from her role as an employee of
the governor, is in favor of sending prisoners out of state.
COMMISSIONER DAHLSTROM said she had not contemplated it until it
was brought before her in the budget.
1:51:33 PM
REPRESENTATIVE KOPP thanked Commissioner Dahlstrom for taking on
the job and expressed confidence in her abilities. He asked for
her view on the effectiveness of faith-based programs in the
prison system.
COMMISSIONER DAHLSTROM said she has seen successes from the
programs. She said she has talked with inmates, inmates'
families, correctional officers, and program facilitators. She
said she believes the programs to be very effective.
1:52:28 PM
REPRESENTATIVE KOPP asked if she had seen any data supporting
the idea that participants in faith-based programs recidivate at
lower rates versus other programs.
COMMISSIONER DAHLSTROM said she would need to get back to the
committee with that information.
1:52:52 PM
REPRESENTATIVE KOPP noted that the data he has seen show that
the programs are "remarkably effective." He shared anecdotal
evidence supporting this. He asked if she is committed to
continuing programs like the Transitional Living Center (TLC)
Program.
COMMISSIONER DAHLSTROM answered yes. She said the TLC program
is active at Anchorage Correctional Complex. She added that the
women's version of TLC is active at Hiland Mountain Correctional
Center. She said she would like to see these programs expanded,
in addition to other programs focused on substance abuse and
work.
1:53:37 PM
REPRESENTATIVE EASTMAN mentioned changes in the faith-based
programs that he believes put the program's gains at risk. He
said he would follow up with her on that topic. He asked if she
is concerned about drugs in prison and how she plans to deal
with them.
COMMISSIONER DAHLSTROM said she and her team share
Representative Eastman's concerns about drugs in prisons. She
said she has zero tolerance for any officers or employees who
might be enabling drug-related behavior. She said it is a
priority to ensure contraband does not enter DOC facilities.
She stated she is committed to decreasing the problem.
1:55:06 PM
CHAIR CLAMAN asked why she decided to disband DOC's internal
affairs investigative unit. He said he believes this made
Alaska one of the few, if not the only, states without one. He
asked how she saw this decision impacting her commitment to
reducing drugs in prisons.
COMMISSIONER DAHLSTROM said she disbanded the unit because
Alaska State Troopers have statutory authority to investigate
"all those types of situations." She pointed to a
repetitiveness of services, explaining that the unit could only
turn its findings over to Human Resources or the state troopers,
the latter of which would have to open its own investigation.
She said the decision was made to remove duplication.
1:56:10 PM
CHAIR CLAMAN remarked that other states have found that
investigations by state police were less effective at reducing
drugs in prisons compared to investigations conducted by
internal affairs units.
COMMISSIONER DAHLSTROM said she would like to read that study
before commenting.
1:56:36 PM
REPRESENTATIVE WOOL said prisoners had been previously sent out
of state and now it is in the budget to do it again. He asked
if either of those cases involved sending prisoners out of state
to private prisons, or if the prisoners had been or are to be
sent to state prisons.
COMMISSIONER DAHLSTROM said she does not know.
1:57:10 PM
REPRESENTATIVE WOOL said there is a line item in the governor's
budget with a dollar amount to send away 500 prisoners. He said
this implies someone asked another institution for the cost. He
asked if the queried institution was private or a public.
COMMISSIONER DAHLSTROM said that is incorrect. She said, after
the proposed budget was released, one employee in her department
made one phone call to an out-of-state institution to see if it
had beds available. She said if the committee wanted more
information, it would have to ask the Corrections ASD in the
Office of Management & Budget (OMB).
1:57:51 PM
REPRESENTATIVE WOOL said the numbers must exist because
otherwise the cost would not be in the budget. He added that
the administration must know the cost because otherwise it would
not know if moving inmates out of Alaska would save money. He
asked for confirmation that the person who made the inquiry to
get those numbers does not work for DOC.
COMMISSIONER DAHLSTROM answered that each department has an ASD
assigned to it and DOC's works directly for OMB. She deferred
to the ASD regarding financial questions on this topic.
1:58:29 PM
REPRESENTATIVE WOOL asked if she knew which institution the ASD
called.
COMMISSIONER DAHLSTROM said the ASD was not the employee who
made the call. She clarified that one of her employees called
an institution after the budget was released to determine if and
where it had beds available.
REPRESENTATIVE WOOL asked who the employee called.
COMMISSIONER DAHLSTROM answered it was an institution in
Colorado.
REPRESENTATIVE WOOL asked if the institution in Colorado was
private or public.
COMMISSIONER DAHLSTROM answered "I believe it's a private."
1:59:11 PM
CHAIR CLAMAN asked how many prisons in Alaska she has visited
since becoming commissioner.
COMMISSIONER DAHLSTROM said she believed six, including Mat-Su
Pretrial, Anchorage Correctional Complex, and Hiland Mountain
Correctional Center. She said she looks forward to visiting
rural facilities including Spring Creek Correctional Center.
CHAIR CLAMAN asked if she has visited Wildwood Correctional
Complex, which is slated for partial shutdown.
COMMISSIONER DAHLSTROM answered no, though she hopes to visit
soon.
1:59:55 PM
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on Commissioner Dahlstrom's appointment.
2:00:39 PM
REPRESENTATIVE EASTMAN asked Chair Claman if a representative
from DOC would be present later to address a fiscal note in the
committee packet.
CHAIR CLAMAN confirmed there would be someone from DOC present
to discuss the fiscal note for HB 52.
REPRESENTATIVE EASTMAN thanked Commissioner Dahlstrom for
accepting the appointment and answering the committee's
questions.
2:01:30 PM
REPRESENTATIVE WOOL also thanked her. He said he does not like
the profit-driven nature of private prisons and how their
incentives are to reduce expenses and fill beds. He said the
concept of private prisons concerns him. He shared his hope
that SOA would not pursue prison privatization either within or
outside Alaska.
2:02:28 PM
REPRESENTATIVE KOPP also thanked her. He spoke to the gravity
of her job. He shared concerns with the thought of separating
Alaskan inmates from their families. He added that Corrections
Corporation of Alaska has been doing contract work in Alaska for
decades. He said Alaska's relationship with private prisons is
not a recent thing. He said the unifying question is, "What's
the right thing to do by our people."
2:04:09 PM
REPRESENTATIVE LEDOUX said she looks forward to working with
Commissioner Dahlstrom.
2:04:21 PM
CHAIR CLAMAN referenced former Alaska Senate President Pete
Kelly's observation that the DOC commissioner position should be
the subject of constitutional change because DOC's long-term
goals are too often affected by the volatility that comes with
changes in administrations. Chair Claman said, although he does
not necessarily support amending the constitution, he agreed
with the assertion that the DOC commissioner job comes with
unique challenges. He noted that department-wide culture shifts
do not happen overnight. He referenced the long-term process of
housing, releasing, and reintegrating inmates into their
communities.
CHAIR CLAMAN said the "hard questions" today do not diminish his
confidence in Commissioner Dahlstrom's ability to take on the
job. He expressed appreciation for the efforts of DOC staff to
respond to his "myriad data questions."
2:06:45 PM
REPRESENTATIVE LEDOUX stated that the Judiciary Committee has
reviewed the qualifications of the Governor's appointee and
recommends the name Nancy Dahlstrom, Commissioner, Department of
Corrections, be forwarded to a joint session for consideration.
She said this does not reflect intent by any of the members to
vote for or against this individual during any further sessions
for the purpose of confirmation.
COMMISSIONER DAHLSTROM'S name was forwarded to the joint
session.
HB 52-CRIMES;SEX CRIMES;SENTENCING; PAROLE
2:07:24 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 52 "An Act eliminating marriage as a defense to
certain crimes of sexual assault; relating to enticement of a
minor; relating to harassment in the first degree; relating to
harassment in the second degree; relating to indecent viewing or
production of a picture; relating to the definition of 'sexual
contact'; relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
2:08:05 PM
AMANDA PRICE, Commissioner-Designee, Department of Public Safety
(DPS), introduced HB 52 on behalf of Governor Dunleavy. She
said HB 52 proposes amendments to current law that address "the
absurdly and continuously high rates" of sexual assault and
sexual abuse of minors in Alaska. She said the rape rate in
Alaska is 249 percent higher than the national average. She
said Alaskas rates of sexual assault and sexual abuse of a
minor have consistently been higher than the national average.
She said she is optimistic and pleased to present a bill that
would provide law enforcement with "an improved toolkit" to
respond to and prevent sexual abuse and sexual abuse of a minor,
as well as to protect some of Alaska's most vulnerable people.
COMMISSIONER PRICE said HB 52 would correct loopholes in sexual
assault law that have drawn considerable public attention and
criticism in the wake of the Justin Schneider case. She added
that HB 52 would also create protections for vulnerable
Alaskans. She said one such protection would establish sexual
activity with an incapacitated, incapable, or unaware person as
sexual assault regardless of the status of marriage between the
victim and offender.
2:09:51 PM
COMMISSIONER PRICE said HB 52 would establish an expectation
that any individual who has been convicted of a registerable
sex offense in another state will also be required to register
in the state of Alaska." She said the Division of Statewide
Services, which manages the sex offender registry, receives
approximately 10 to 12 phone calls per month from individuals
who are required to register as a sex offender in another state
inquiring about the status of their requirement to register in
Alaska. She reiterated that 10 to 12 convicted sex offenders
[per month] contact SOA to ascertain if they must register in
Alaska. She said these individuals, from the perspective of the
Division of Statewide Services, view the fact that they do not
have to register as a sex offender as a benefit of moving to
Alaska, the state with the highest rape rate in the nation.
2:10:50 PM
CHAIR CLAMAN asked whether the 10 to 12 monthly callers are
generally being told they do or do not have to register.
COMMISSIONER PRICE said it is her understanding that the callers
are told they would not have to register because the current law
does not require it. She explained the current law requires
there to be a direct correlation to the law they broke in the
other state.
2:11:42 PM
COMMISSIONER PRICE said she believes the topic of sexual assault
"crosses all of the boundaries in terms of all of us identifying
with common goals." She restated that the rates of sexual
assault and sexual violence in Alaska are astronomically high.
She expressed her pleasure in supporting HB 52.
2:12:26 PM
REPRESENTATIVE LEDOUX asked Commissioner Price to define "direct
correlation" pertaining to language in the current sex offender
registration law.
COMMISSIONER PRICE said she would have to defer to the
Department of Law (DOL).
2:12:50 PM
REPRESENTATIVE EASTMAN said the language of HB 52 references
Williams v. State. He asked if she could speak to that
reference.
2:13:16 PM
COMMISSIONER PRICE said she would have to defer to the
Department of Law (DOL).
2:13:54 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, began the
sectional analysis of HB 52. She explained she was skipping
section one, the intent section, and would refer back to it
later.
MS. SCHROEDER addressed sections 2 and 3, which she said refer
to removing marriage as a defense to sexual assault when the
victim is mentally incapable, incapacitated, or unaware that the
sexual act is being committed. She said it leaves marriage as a
defense only in those circumstances where there is consent and
the very nature of the relationship is what is criminalized.
For example, she said, a probation officer is forbidden by law
from having sex with a probationer unless [the two] are married.
2:15:04 PM
MS. SCHROEDER addressed sections 4 through 6, which she
explained relate to online enticement of a minor. She said HB
52 would remove the "online" requirement. She said the statue
currently requires the use of a computer. She said DOL does not
believe the method of enticement should matter and that any
enticement of a minor should be criminalized. She referenced
the Dateline NBC series "To Catch a Predator" with Chris Hansen
and said this part of HB 52 refers to the sort of scenarios
featured in that program.
MS. SCHROEDER addressed section 8, which she said refers to
repeatedly sending images of genitalia to another person.
2:15:49 PM
CHAIR CLAMAN asked about section 7.
MS. SCHROEDER said section 7 is related to section 13. She
noted the administration intends to remove section 7. She said
she would explain when she reaches section 13.
2:16:12 PM
MS. SCHROEDER returned to section 8. She said, in this day and
age, people are often communicating over electronic means and
some people apparently find it funny or annoying to send images
of genitalia to other people. She said a classic example would
be someone sending an image, the recipient saying he/she does
not want to see it, and the sender proceeding to send images in
a harassing type of nature. She said HB 52 would criminalize
this act and make it a Class B Misdemeanor.
2:16:50 PM
MS. SCHROEDER addressed sections 9 through 12, which she said
refer to indecent viewing or production of a picture. She said
the most common example is someone who sets up a camera in a
locker room or bathroom and captures private exposure without
the victim's knowledge or consent. She said the underlying
statute is confusing to read so HB 52 would help clarify the
language, though she noted the language could be made clearer
still. She said HB 52 would break up the conduct of viewing the
picture from the conduct of producing the picture, which she
explained are two different things punished differently.
2:18:12 PM
REPRESENTATIVE LEDOUX established a hypothetical wherein an
individual takes a picture of a person in a locker room without
the person's knowledge, but the picture is not of the person's
private parts but rather of his or her leg. She restated that
this took place in a locker room and nobody knew about it except
the picture taker. She asked if that is okay. She opined, "It
certainly doesn't seem like it would be okay."
MS. SCHROEDER agreed it is probably not okay, but there is no
criminal offense that addresses it.
REPRESENTATIVE LEDOUX asked, "Shouldn't there be?
MS. SCHROEDER said that would be a policy question for the
legislature.
2:19:08 PM
REPRESENTATIVE EASTMAN referenced language in section 9 that
reads "viewing in the state." He asked, now that a distinction
has been made between viewing and taking, what about pornography
produced in a locker room that is sent out of state. He asked
if HB 52 would make that okay.
MS. SCHROEDER said this statute does not address distribution.
She said there are other misdemeanor offenses that refer to
distributing photos with the intention to embarrass. She
distinguished between pornography and the private exposure of an
individual. She said pornography especially child pornography
would be a whole other class of offense.
2:20:09 PM
REPRESENTATIVE EASTMAN asked for clarification. He said his
understanding of the language is that the production of photos
of nude persons would not be proscribed by law as long as the
images are not shown to someone in Alaska, even if the images
are shown to people outside the state.
MS. SCHROEDER said as long as the images are produced in state,
if they are shared even with someone outside Alaska the act
of sharing is occurring inside the state and there are
misdemeanors to address that conduct.
CHAIR CLAMAN noted that there is a jurisdictional issue for
events happening outside the state. He said SOA cannot
prosecute someone in California for what happens in California.
2:21:03 PM
REPRESENTATIVE EASTMAN said the language in section 9 appears to
limit the criminality of creating images to the viewing of the
pictures within Alaska. He asked if he is misreading the
language.
MS. SCHROEDER said the statute could be clearer. She said any
conduct that occurs in-state can be prosecuted even if the
images end up crossing state lines. She echoed Chair Claman's
statement that SOA cannot prosecute conduct occurring out of
state.
2:22:21 PM
REPRESENTATIVE EASTMAN said that was not the point of his
question.
CHAIR CLAMAN clarified Representative Eastman's question by
drawing attention to subsection 1, which relates to the viewing,
and subsection 2, which relates to the production. He suggested
that if an individual were to create an image in Alaska that is
viewed out of state, SOA would not be able to prosecute them
under subsection 1 but would be able to prosecute them under
subsection 2.
MS. SCHROEDER answered that is correct.
2:23:00 PM
REPRESENTATIVE LEDOUX said it looks like [subsection] 2 only
refers to people under a certain age.
MS. SCHROEDER said that refers to who has to give consent. She
said if the person is under 13, the parent must give consent and
without that consent, criminal penalties could apply. She said
if the person is 13 through 16, both the parent and the child
must give consent and without that, criminal penalties could
apply. She said if the person is over 16, only that person has
to give consent.
2:23:59 PM
REPRESENTATIVE LEDOUX asked where to find that information in
the language of the bill.
MS. SCHROEDER pointed to page 5, lines 9 through 12. She walked
through the language.
REPRESENTATIVE LEDOUX said the language is confusing.
MS. SCHROEDER said she agrees.
2:25:07 PM
CHAIR CLAMAN noted that section 12 distinguishes between
misdemeanor conduct and felony conduct with regard to the age of
person shown in a picture.
MS. SCHROEDER pointed to page 5, line 28. She said where it
reads "under 16 years of age" should read "under 18 years of
age" because it would still be a felony if the person were 17
years old. She said she hoped the committee would help clarify
that. She added that DOL is open to suggestions for further
clarifying statutory language.
MS. SCHROEDER referred the committee to a chart provided in the
committee packet. The chart displayed the tiered approach to
prosecuting these crimes depending on who the offender is and
who the victim is. She said, based on the chart, if the viewing
or production is involving a child, it would be a Class C sexual
felony and a registerable sex offense. She said if the
production is of an adult, it would be a regular Class C felony
punishable by 0 to 2 years imprisonment, but also a registerable
sex offense. She said if the viewing is of an adult, it would
be a Class A misdemeanor with a presumptive sentence range of 0-
30 days, one year maximum.
2:27:12 PM
MS. SCHROEDER addressed section 13 on page 6, which she said
would make it "sexual contact for an individual to knowingly
cause a victim to come into contact with semen. She said the
change relates to the Justin Schneider case. She noted that
several different bills have been introduced to address
loopholes from the Schneider case. She said the bills "that are
moving" have all taken this particular approach to broadening
the definition of "sexual contact." She said the change would
allow for prosecution of sexual assault in the second degree,
sexual assault in the third degree, sexual abuse of a minor in
the second degree, and sexual abuse of a minor in the third
degree, as well as the respective misdemeanors for each offense.
2:28:06 PM
CHAIR CLAMAN asked Ms. Schroeder to clarify the relationship
between sections 7 and 13.
MS. SCHROEDER noted that section 7 would delete the word "semen"
from the statutory language defining harassment in the first
degree. She said this refers to a situation in which an
individual with an intent to harass or annoy causes a victim to
come into contact with semen. Initially, she explained, this
language had been inserted into the bill to protect from a
lenity argument. She said that, upon further review, DOL
determined "the mental states in the situations targeted by both
statutes are different enough" that they do not cover the same
conduct. She said DOL believes it would survive a lenity
challenge. She added that leaving "semen" in the language for
harassment in the first degree is appropriate for certain
situations. She said an example would be a prisoner throwing
semen on a corrections officer, which she explained is the exact
sort of conduct that harassment in the first degree was created
to address.
2:29:12 PM
CHAIR CLAMAN asked for confirmation that DOL wants section 7
removed.
MS. SCHROEDER answered yes.
CHAIR CLAMAN mused that protecting corrections officers was the
original intention of harassment in the first degree and to
remove "semen" from AS 11.61.118(a) would make it impossible to
prosecute some of those situations.
MS. SCHROEDER answered correct. She noted that harassment
requires a mental state of intent to harass or annoy. She said
sexual assault requires "without consent" which itself requires
some use of force. She said the contexts of harassment and
sexual assault are completely different which is why DOL
believes they can survive together.
2:30:02 PM
MS. SCHROEDER addressed section 14, which she said would enhance
the penalty for assault in the second degree, the charge most
often used to prosecute strangulation. She said this change is
also a response to the Schneider case. She noted that multiple
bills take different approaches. She said HB 52 is not
necessarily the preferred approach, "just an approach."
2:30:36 PM
CHAIR CLAMAN pointed to section 14, subsection d, paragraph 5.
He said the reference to AS 11.41.210 indicates assault in the
second degree rather than sexual assault in the second degree.
He asked why that is.
MS. SCHROEDER answered that the reference to assault in the
second degree covers situations involving strangulation. She
said if a victim is strangled, the charge of assault in the
second degree would create an enhanced penalty.
2:31:15 PM
CHAIR CLAMAN said other bills address the strangulation issue
with an aggravating factor rather than an enhanced sentence.
MS. SCHROEDER answered correct. She said other bills approach
the issue "with an aggravator" or by increasing the penalties
for all classes of assault when a dangerous instrument is used.
2:31:40 PM
CHAIR CLAMAN asked if DOL is taking a position regarding the
different approaches.
MS. SCHROEDER answered, "Anything is better than nothing." She
said all the approaches are good and some could survive
simultaneously, which is to say they do not directly conflict
with each other.
2:31:58 PM
REPRESENTATIVE EASTMAN recalled touring a prison with a friend.
While on the prison tour, he said, an inmate threw semen on his
friend. He asked if the bill's current language would make the
inmate's actions a criminal act that would require the inmate to
register as a sex offender.
MS. SCHROEDER answered yes, however DOL wants that section
removed. She explained this would allow DOL more options to
address the harassing type of nature of certain conduct.
CHAIR CLAMAN clarified that harassment is not a registerable sex
offense.
MS. SCHROEDER affirmed the clarification.
2:33:04 PM
MS. SCHROEDER addressed section 15 and pointed to the
substantive portion on page 9. She said the section refers to
sexual abuse of a minor in the third degree. She said this
involves situations in which the defendant is 17 years of age or
older and the victim is 13, 14, or 15 years-old. She said this
situation is currently a regular Class C felony and a
registerable sex offense with a presumptive sentence range of 0
to 2 years.
MS. SCHROEDER said HB 52 would introduce a change for situations
in which the defendant and victim are at least six years apart.
She said these situations would be made sexual felonies with an
enhanced sentencing range of 2 to 12 years. She said this
change attempts to take into account "close-in-age situations"
that, while still criminal, are sentenced at a lower offense.
She noted a six-year age difference feels "a little more
predatory," which is why DOL wants it made into a sexual felony.
2:34:17 PM
REPRESENTATIVE EASTMAN asked how DOL settled on a six-year
range.
MS. SCHROEDER said it would be a new age range in law. She said
DOL selected it but it open to discussing an alternate range.
2:34:46 PM
REPRESENTATIVE WOOL asked Ms. Schroeder to repeat the ages
regarding sexual abuse of a minor in the third degree.
MS. SCHROEDER said the defendant needs to be 17 years of age or
older and the victim is 13, 14, or 15. She noted that this
involves sexual contact and not penetration. She said DOL
pulled its cases regarding close-in-age situations and found it
does not charge very many of them. She said when DOL does
charge these situations, "there is usually something else going
on," such as plying the victim with alcohol.
2:35:23 PM
REPRESENTATIVE WOOL established a scenario in which two high
school students, aged 17 and 15, share sexual contact. He asked
if the 17-year-old would be committing a crime.
MS. SCHROEDER clarified that sexual abuse of a minor requires at
least four years of age difference.
CHAIR CLAMAN said that this is different from the six-year
difference mentioned in the bill.
REPRESENTATIVE WOOL said he understood. He noted that the
situation in his hypothetical would not qualify.
2:36:14 PM
CHAIR CLAMAN asked, with respect to these changes and earlier
mention of the public reaction to the Schneider Case, if any
cases involving the prosecution of third-degree sexual abuse of
a minor have caused public outrage.
MS. SCHROEDER answered she is not aware of any cases. She
opined that most public awareness of sexual abuse of a minor in
the third degree occurred during the special session on Senate
Bill 54 [passed in the Thirtieth Alaska State Legislature].
2:36:56 PM
MS. SCHROEDER addressed section 15. She said HB 52 would make
indecent viewing or production of a picture of a minor a
registerable sex offense and a sexual felony, so language has
been added to conform to that.
2:37:18 PM
MS. SCHROEDER addressed section 16, the substantive portion of
which she said is on page 11 beginning at line 30. She said
this ties in with language in section 1 that establishes an
intent to overturn Williams v. State. She said Williams v.
State established the following: "When counting prior felonies
for determining the presumptive sentence range for a sexual
felony, a non-sex felony cannot be counted if the defendant was
unconditionally discharged more than ten years before the
current felony.
MS. SCHROEDER said there is a 10-year lookback period for non-
sex felonies, so if an individual commits a burglary then goes
12 years before committing another burglary, DOL cannot count
that first burglary when determining a presumptive sentence
range. However, she said, for sex offenses, DOL had always
counted all felonies no matter how old, so a 12-year-old
burglary would be counted toward the presumptive sentence range
of a new sex felony. She explained that the Williams decision
disallowed this. She said Williams v. State was issued in March
2018, so from that point forward sex offenders will receive
lower sentences depending on when their prior felonies occurred.
She explained section 16 would make all prior felonies, no
matter how old, count toward determining the presumptive
sentence range for a sexual felony.
2:39:23 PM
CHAIR CLAMAN said he read Williams v. State. He said the Alaska
Court of Appeals made specific reference to the Alaska State
Legislature passing a law that indicated that unclassified and
Class A felonies would always be considered priors for any
offense.
MS. SCHROEDER said that is correct.
CHAIR CLAMAN said the court mentioned that the legislature did
not do the same for Class B and C felonies. So, he said,
someone who was [convicted for] a burglary 20 years ago would
not have that conviction held against him or her for a burglary
conviction today. He asked for confirmation that, should HB 52
become law, this individual's 20-year-old burglary conviction
would be considered a prior for a new sex offense and would not
be considered a prior for a new burglary.
MS. SCHROEDER asked if the hypothetical individual was
committing a sex offense and burglary together.
2:40:52 PM
CHAIR CLAMAN clarified his hypothetical to avoid confusion. He
established that there are two different individuals with 20-
year-old burglary convictions. Person A commits another
burglary. Person B commits a sex offense. He said that, under
current law, neither could be charged as second-time felon. He
asked, should HB 52 become law, Person A would still be charged
as a first-time felon while Person B would now be charged as a
second-time felon.
MS. SCHROEDER answered that is correct.
CHAIR CLAMAN asked if the 20-year-old offense were instead a sex
offense, would it count as a prior conviction for purposes of a
sex offense today.
MS. SCHROEDER answered that is correct.
CHAIR CLAMAN asked if it would also count as a prior for a
burglary today.
MS. SCHROEDER answered, "I believe so, but let me check on
that."
2:42:06 PM
CHAIR CLAMAN asked if there is evidence suggesting that people
who commit burglaries more than 10 years ago are somehow more
likely to commit sex offenses today than those with no prior sex
offense history.
MS. SCHROEDER said she has no evidence or data before her. She
pointed to an increasing pattern of behavior. She said that,
before Williams v. State, the theory was that some criminal
history is of such a nature that it should count. She said that
could be based on the prior offense or the current offense. She
said, "The age of the prior felony goes to the weight, and not
necessarily about whether or not it should or should not be
counted as far as a presumptive term."
2:43:24 PM
CHAIR CLAMAN said that, statistically speaking, sex offenders
are actually far less likely to recidivate than those who commit
property crimes and other crimes. He said this raises an
interesting question regarding whether an individual who is
convicted of a first sex offense should be imprisoned longer
than another individual convicted of a first sex offense simply
because the first individual committed a burglary 20 years
prior. He differentiated between the patterns established by a
2-year gap in felony convictions and a 20-year gap.
MS. SCHROEDER noted that low sex offender recidivism rates
reflect what is currently in Alaska law, which is to say longer
prison sentences and the successful containment model
implemented by DOC. She said sex offender recidivism rates need
to be viewed in the context from which those numbers are
derived.
2:44:46 PM
REPRESENTATIVE LEDOUX asked if the reason we don't see
recidivism from sex offenders is because they are incarcerated
for so long that they do not get charged again.
MS. SCHROEDER said she mentioned the containment model as well.
She said she is not pointing to a cause and effect relationship,
just noting that an assessment of sex offender recidivism rates
require context regarding the system as a whole. She said she
does not have any answers on the matter.
2:45:16 PM
REPRESENTATIVE WOOL asked if there is a population of people who
have committed felonies and then, ten years later, are commit
sex offenses. He asked how this population compares to the
population of sex offenders without prior convictions.
MS. SCHROEDER said she does not have any statistics on that
topic. She said sometimes individuals convicted of sex offenses
have zero prior convictions. She said sometimes individuals
convicted of a sex crime have exhibited escalating criminal
behavior. She said DOL does not keep a lot of statistics but
does observe patterns of behavior.
2:46:05 PM
REPRESENTATIVE EASTMAN asked Ms. Schroeder to briefly explain
the containment model. He also asked if there are minimum or
maximum age limits for inclusion on the state sex offender
registry.
MS. SCHROEDER said the state sex offender registry does not
include juveniles. She deferred to DOC for additional details
about the registry and to DPS for details about the containment
model.
2:47:14 PM
LAURA BROOKS, Deputy Director, Division of Health & Rehab
Services, Department of Corrections, said the containment model
is an evidence-based program in which specially trained
probation officers monitor sex offenders. She said the
offenders on probation and parole are placed on a follow-up
schedule whereby they get polygraphed. She noted the
containment model is a critical tool for monitoring the offender
population. She said DOC can monitor deviant thoughts before an
offender re-enters his/her assault cycle. She said DOC combats
this by tightening curfews, increasing the frequency of home
visits, increasing the frequency of reports to the parole
office, and other measures designed to prevent re-offense.
2:48:38 PM
MS. SCHROEDER addressed sections 17 and 18. She said the
changes in those sections are conforming changes because HB 52
would make certain offenses felonies.
MS. SCHROEDER addressed sections 19 and 20, which she said refer
to the sex offender registry. She said these sections would
require anyone who is required to register as a sex offender out
of state to also register in Alaska if he/she is physically
present in the state. She said section 1 has an intent section
related to sections 19 and 20. She said this requirement would
be a matter of comity and would not be punitive. She explained
that Alaska has a very transient population with people often
entering and leaving the state. She said SOA does not want to
see Alaska become a safe haven for those who are required to
register out of state. She said if those individuals are going
to be in Alaska, SOA wants to be informed and wants those
individuals to register.
2:49:41 PM
REPRESENTATIVE EASTMAN established a scenario in which an
individual who is one day shy of turning 18 engages in sexual
assault in the third degree with a victim who is more than 6
years younger. He asked if the offending individual would be
required to register as a sex offender.
MS. SCHROEDER said that, in this scenario, the offender would be
adjudicated as a juvenile and thus would not be required to
register.
2:50:47 PM
CHAIR CLAMAN said it is his understanding there are a number of
states that have made public urination a registerable sex
offense. He said this raises an issue because Alaska's
geography sometimes makes it difficult to avoid having to
urinate outdoors. He pondered the possibility of forcing
someone from out of state to register in Alaska for conduct that
would not seem so terrible to Alaskans. He asked if Ms.
Schroeder has seen anything about public urination as a
registerable sex offense in other states. He asked how that
would be treated in Alaska.
2:52:16 PM
MS. SCHROEDER referenced a report from Legislative Research
Services on the topic. She noted that it is not always the act
of urination that is criminalized, rather the exposure of the
genitals to commit the act of urination.
CHAIR CLAMAN quipped, ometimes it's hard to go to the bathroom
without exposing some genitals."
MS. SCHROEDER said she understands. She said she would want to
see what another state's statute actually criminalizes and how
that may or may not compare to Alaska statute. She said the
list of criminalized offenses that she had seen would, depending
on the circumstances, also be registerable sex offenses in
Alaska.
CHAIR CLAMAN asked if there are other offenses that might not be
registerable in Alaska.
MS. SCHROEDER answered yes, depending on the circumstances and
how they are criminalized in the other jurisdiction.
2:53:05 PM
REPRESENTATIVE EASTMAN said he was surprised to learn that, in
some other states, there are people as young as six- or seven-
years-old who are required to register as sex offenders. He
noted that Alaska does not require people that young to
register. He asked if HB 52 would require those individuals to
register should they come to Alaska.
MS. SCHROEDER said the individual would have to be convicted of
a registerable sex offense. She said the definition of
"conviction" in Alaska specifically excludes those adjudicated
as juveniles. She said juveniles adjudicated out of state would
likewise not be required to register.
2:53:57 PM
CHAIR CLAMAN noted that Ms. Price discussed the notion of Alaska
being a "safe haven." He asked if there are a lot of people
coming to Alaska from out of state who are registering as sex
offenders.
MS. SCHROEDER deferred to Kathryn Monfreda from DPS.
2:54:20 PM
KATHRYN MONFREDA, Director, Division of Statewide Services,
Department of Public Safety, said the answer is approximately 3
to 4 new sex offender registrants from out of state each month.
CHAIR CLAMAN asked approximately how many sex offenders are
currently registered in Alaska and how many out of those are
from out of state?
MS. MONFREDA said there are approximately 3,600 sex offenders
registered in Alaska. She said she would have to get back to
the committee with the number of those with out-of-state
convictions.
CHAIR CLAMAN asked if the number of out-of-state convictions is
significant, for example more than 10 percent.
MS. MONFREDA answered she does not know at the moment. She
agreed to get that information to the committee.
2:55:58 PM
MS. SCHROEDER addressed section 21, which she said would amend
the discretionary parole statute. She said the language in
lines 27 through 31 on page 15 prohibits discretionary parole
for serious sex offenses. She said the language is already in
statute and section 21 would simply shift it to a different
subsection for clean-up purposes.
CHAIR CLAMAN said that is more of a technical change.
MR. SCHROEDER said she wanted to ensure the committee
understands that HB 52 would not change eligibility.
2:57:00 PM
MS. SCHROEDER continued with section 21 and pointed to lines 1
through 4 on page 16, which she identified as clarifying
language pertaining to "good time." She said an individual who
is not eligible for a good time deduction from his/her sentence
would also not be eligible for discretionary parole. She said
those not eligible for a good time deduction are repeat sex
offenders. She said it does not make sense to allow
discretionary parole for repeat sex offenders who have been
disallowed good time deductions.
2:57:44 PM
REPRESENTATIVE EASTMAN asked if it is clear in HB 52 that an
inmate who does not earn good time deductions on account of poor
behavior would not be placed in the category of not being
eligible for good time.
MS. SCHROEDER asked if he meant "not eligible for discretionary
parole."
REPRESENTATIVE EASTMAN clarified that HB 52 would create
consequences for those who are not eligible for good time
deductions. He said he wanted to ensure the category of people
who are not eligible for those deductions would not include
individuals who did not earn deductions on account of poor
behavior.
MS. SCHROEDER answered that Representative Eastman was referring
to a separate situation. She pointed to line 3 on page 16 which
includes a reference to AS 33.20.010(a)(3) which identifies
repeat sex offenders as ineligible for good time deductions.
She said they would therefore be ineligible for discretionary
parole.
2:58:55 PM
REPRESENTATIVE EASTMAN asked if Ms. Schroeder could go over
section 1.
MS. SCHROEDER said section 1 includes intent language that
relates to Williams v. State and the legislation's intent to
overturn it. She said the intent language is included because
it would be useful for future litigation. She said other parts
of section 1's intent language relate to the registration of
out-of-state sex offenders and the intent to overturn the Alaska
Supreme Court's 2018 decision in State of Alaska, Department of
Public Safety v John Doe, which determined that an out-of-state
sex offender need not register in Alaska if the state does not
have an offense that is similar to that for which he/she was
convicted. She said the intent section clarifies that the
change is not meant to be punitive, rather it is a matter of
comity and protection of the public.
3:00:16 PM
CHAIR CLAMAN thanked Ms. Schroeder for her presentation. HB 52
was held for further review.
3:00:55 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Commissioner of Corrections Appointment-Nancy Dahlstrom Resume 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM |
|
| HB052 ver A 3.11.19.PDF |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Transmittal Letter 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Sectional Analysis ver A 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Bill Highlights 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Additional Document-Indecent Viewing or Production 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DHSS-PS 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note LAW-CRIM 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DPS-CJISP 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DOA-OPA 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DOA-PDA 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DOC-IDO (Updated) 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM |
HB 52 |
| HB052 Fiscal Note DOC-PB 3.11.19.pdf |
HJUD 3/11/2019 1:30:00 PM HJUD 3/15/2019 1:30:00 PM |
HB 52 |