Legislature(1993 - 1994)
02/26/1993 12:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 26, 1993 12:00 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Pete Kott Rep. Gail Phillips Rep. Jim Nordlund MEMBERS ABSENT Rep. Jeannette James, Vice-Chair Rep. Joe Green Rep. Cliff Davidson COMMITTEE CALENDAR HB 69: "An Act relating to registration of and information about sex offenders and amending Alaska Rules of Criminal Procedure 11(c) and 32(b)." CS MOVED OUT OF COMMITTEE HB 64: "An Act creating the crimes of stalking in the first and second degrees and providing penalties for their violation; providing a peace officer with the authority to arrest without a warrant a person the peace officer has reasonable cause to believe has committed stalking; relating to the release before trial of a person accused of stalking; and prohibiting the suspension of imposition of sentence of a person convicted of stalking." CS MOVED OUT OF COMMITTEE HB 100: "An Act relating to criminal charges brought against minors." HEARD AND HELD OVER WITNESS REGISTER GAYLE HORETSKI Committee Counsel House Judiciary Committee State Capitol, Room 120 Juneau, Alaska 99801-1182 Phone: 465-4990 Position Statement: Discussed HB 69, HB 64, and HB 100 JEN TUCCI 4405 Portage Boulevard Juneau, Alaska 99801 Phone: 789-3726 Position Statement: Supported HB 69 MARGOT KNUTH Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Phone: 465-3428 Position Statement: Discussed HB 69 RANDALL HINES Youth Corrections Specialist Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Phone: 465-3191 Position Statement: Answered questions on HB 100 JENNY MURRAY Legislative Aide Rep. Con Bunde Alaska State Legislature State Capitol, Room 112 Juneau, Alaska 99801-1182 Phone: 465-4843 Position Statement: Supported HB 100 PREVIOUS ACTION BILL: HB 69 SHORT TITLE: SEX OFFENDER REGISTRATION BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) BARNES,Ulmer,Phillips, Nordlund,Porter,Olberg,James,B.Davis,Green,Sanders, Toohey,Mackie TITLE: "An Act relating to registration of and information about sex offenders and amending Alaska Rules of Criminal Procedure 11(c) and 32(b)." JRN-DATE JRN-PG ACTION 01/15/93 89 (H) READ THE FIRST TIME/REFERRAL(S) 01/15/93 90 (H) STATE AFFAIRS,JUDICIARY,FINANCE 01/27/93 169 (H) COSPONSOR(S): NORDLUND 01/29/93 183 (H) COSPONSOR(S): PORTER 02/01/93 202 (H) COSPONSOR(S): OLBERG, JAMES, B.DAVIS 02/02/93 (H) STA AT 08:00 AM CAPITOL 102 02/02/93 (H) MINUTE(STA) 02/03/93 223 (H) COSPONSOR(S): GREEN, SANDERS, TOOHEY 02/04/93 (H) STA AT 08:00 AM CAPITOL 102 02/06/93 (H) STA AT 08:00 AM CAPITOL 102 02/06/93 (H) MINUTE(STA) 02/08/93 250 (H) STA RPT CS(STA) 4DP 02/08/93 251 (H) DP: VEZEY,SANDERS,ULMER,G.DAVIS 02/08/93 251 (H) -2 ZERO FNS (LAW, CORR) 2/8/93 02/10/93 (H) JUD AT 01:00 PM CAPITOL 120 02/10/93 (H) MINUTE(JUD) 02/18/93 383 (H) COSPONSOR(S): MACKIE 02/24/93 (H) JUD AT 01:00 PM CAPITOL 120 02/26/93 (H) JUD AT 12:00 PM CAPITOL 120 BILL: HB 64 SHORT TITLE: ANTI-STALKING LAW BILL VERSION: CSHB 64(FIN) SPONSOR(S): REPRESENTATIVE(S) TOOHEY,Phillips,Olberg, Ulmer,Hudson,Porter,B.Davis,Mackie,Carney,Nordlund,Parnell TITLE: "An Act creating the crimes of stalking in the first and second degrees and providing penalties for their violation; providing a peace officer with the authority to arrest without a warrant a person the peace officer has reasonable cause to believe has committed stalking; relating to the release before trial of a person accused of stalking; prohibiting the suspension of imposition of sentence of a person convicted of stalking; relating to the crime of assault in the third degree; and providing for an effective date." JRN-DATE JRN-PG ACTION 01/15/93 74 (H) READ THE FIRST TIME/REFERRAL(S) 01/15/93 74 (H) JUDICIARY, FINANCE 01/29/93 183 (H) COSPONSOR(S): PORTER 02/01/93 201 (H) COSPONSOR(S): B.DAVIS 02/03/93 223 (H) COSPONSOR(S): MACKIE 02/15/93 351 (H) COSPONSOR(S): CARNEY 02/19/93 (H) JUD AT 01:00 PM CAPITOL 120 02/19/93 (H) MINUTE(JUD) 02/24/93 445 (H) COSPONSOR(S): NORDLUND, PARNELL 02/26/93 (H) JUD AT 12:00 PM CAPITOL 120 BILL: HB 100 SHORT TITLE: PROSECUTION OF JUVENILE FELONS BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) BUNDE,Green TITLE: "An Act relating to criminal charges brought against minors." JRN-DATE JRN-PG ACTION 01/29/93 178 (H) READ THE FIRST TIME/REFERRAL(S) 01/29/93 178 (H) HES, JUDICIARY 02/03/93 224 (H) COSPONSOR(S): GREEN 02/05/93 240 (H) HES WAIVED 5-DAY HEARING NOTICE,RULE 23 02/08/93 (H) HES AT 03:00 PM CAPITOL 106 02/08/93 (H) MINUTE(HES) 02/10/93 289 (H) HES RPT 5DP 1DNP 2NR 02/10/93 289 (H) DP: KOTT,VEZEY,BUNDE,TOOHEY, OLBERG 02/10/93 289 (H) DNP: NICHOLIA 02/10/93 289 (H) NR: G.DAVIS, BRICE 02/10/93 289 (H) -2 FNS (ADM, ADM) 2/10/93 02/10/93 289 (H) -2 ZERO FNS (DPS, DHSS) 2/10/93 02/10/93 289 (H) REFERRED TO JUDICIARY 02/17/93 (H) JUD AT 01:00 PM CAPITOL 120 02/17/93 (H) MINUTE(JUD) 02/17/93 (H) MINUTE(JUD) 02/22/93 (H) JUD AT 01:00 PM CAPITOL 120 02/26/93 (H) JUD AT 12:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 93-24, SIDE A Number 000 The House Judiciary Committee meeting was called to order at 12:15 p.m. on Friday, February 26, 1993. A quorum was not initially present; therefore, the committee meeting was convened as a work session until a quorum was obtained. CHAIRMAN PORTER announced that the committee would take up HB 69 first. HB 69 - SEX OFFENDER REGISTRATION Number 039 GAYLE HORETSKI, COMMITTEE COUNSEL TO THE HOUSE JUDICIARY COMMITTEE, outlined the changes included in the draft committee substitute for HB 69, dated 2/26/93. She noted that the first change appeared in section 2, at the bottom of page 1. She said that section 2 would take effect immediately upon passage of the bill and then be repealed on January 1, 1997, and replaced with section 3 of the bill. Sections 2 and 3 were identical, except that section 3 included the requirement that offenders submit a blood sample. Number 095 REP. PHILLIPS asked why there was not an immediate effective date on the rest of the bill's provisions. Number 102 MS. HORETSKI said that she did not recall any committee members suggesting an immediate effective date before. She said that the Department of Public Safety would need to gear up for the sex offender registration program and adopt regulations for its implementation. Number 109 REP. PHILLIPS asked if the effective date of the bill could be researched. Number 112 MS. HORETSKI indicated that Doug Wooliver from the speaker's office was present and could comment on that point later. MS. HORETSKI continued to outline changes in the draft committee substitute for HB 69. Research showed that "municipal" was a better term than "local" when used to refer to police departments within Alaska; therefore, she said, all references to "local" police departments had been changed to "municipal" police departments. MS. HORETSKI called the members' attention to page 3, line 15, of the draft committee substitute. She stated that the biggest changes made to HB 69 were in this section of the bill. The new draft committee substitute contained a lifetime registration requirement for offenders convicted of unclassified or class A felony sex offenses, a 20-year registration requirement for offenders convicted of class B or class C felony sex offenses, and a 10-year registration requirement for offenders convicted of a class A misdemeanor sex offense. Number 139 MS. HORETSKI also noted that new language appeared on page 3, line 24. The draft committee substitute said that the Department of Public Safety would adopt regulations outlining the procedure by which the department would notify offenders who were convicted of a sex offense that was a violation of a former law, or a law outside the state of Alaska. Ms. Horetski said that this provision was added to the bill by the drafters, as a person convicted of a sex offense outside of Alaska might not be aware of the Alaska classification level to which his or her offense was equivalent, for the purposes of registering. Number 175 MS. HORETSKI said that she had discovered that 21 states had adopted laws requiring offenders to provide blood samples for DNA analysis. She added that at least seven of those states also had constitutional rights to privacy, as Alaska did. She said this was not a guarantee that such a provision in HB 69 would be upheld; however, she noted that it was encouraging to know that other states with constitutional rights to privacy had adopted DNA sample laws. Number 198 REP. PHILLIPS said she had noticed another change between the most recent committee substitute and its predecessor, in that the sections were numbered differently. Number 203 MS. HORETSKI indicated that because sections 2 and 3 were now identical, except for the dates on which they would take effect, the numbering of all subsequent sections of the bill was altered. Number 217 CHAIRMAN PORTER stated that the inclusion of both sections 2 and 3 was seen as the "cleanest" way to enact the law without having to come back several years down the road and enact a section relating to DNA samples. Number 236 JEN TUCCI, from Juneau, testified in support of HB 69. She said that sex offenders paid for their actions by serving jail sentences, but their victims paid for the rest of their lives. She noted the emotional upheaval, inability to function, psychological damage, and fear were experienced by victims of sex offenses. She added that sex offenders tended to display predatory behavior, and violent sex offenders often escalated the level of violence in each subsequent offense. For those reasons, she said, HB 69 would help to protect the innocent and convey a message that society would no longer tolerate the behavior of sex offenders. She said there was no proof that sex offenders could be cured. Number 277 REP. KOTT asked Ms. Tucci if she was testifying on her own behalf or if she was representing an organization. Number 279 MS. TUCCI indicated that she was representing herself. (Rep. Nordlund arrived at 12:25 p.m.) CHAIRMAN PORTER summarized for Rep. Nordlund the changes contained in the current committee substitute for HB 69. Number 307 REP. NORDLUND moved to report out the Judiciary committee substitute for HB 69, with individual recommendations and a zero fiscal note from the Department of Public Safety. MS. HORETSKI noted that the Department of Public Safety had offered a fiscal note showing impact on that department's operating costs. REP. NORDLUND amended his motion to include the fiscal note from the Department of Public Safety. Number 316 MARGOT KNUTH, from the DEPARTMENT OF LAW, stated that she had noticed a technical problem with the draft committee substitute. She pointed out a "local" police department reference on page 3, line 8. Number 327 CHAIRMAN PORTER asked if Rep. Nordlund would consider an amendment changing the "local" police department language on page 3, line 8, to be a friendly amendment. Number 329 REP. NORDLUND said that would be a friendly amendment. He amended his motion to ask that a new committee substitute be prepared, including the change on page 3, line 8. Number 340 CHAIRMAN PORTER, hearing no objection, ordered that the new committee substitute for HB 69 move out of committee. The committee took a brief "at ease" at 12:31 p.m. The committee resumed its business at 12:34 p.m. Number 360 CHAIRMAN PORTER announced that HB 64 was the next item of business before the committee. HB 64 - ANTI-STALKING LAW Number 364 MS. HORETSKI outlined the changes that had been made in the new committee substitute for HB 64. She noted that the most recent committee substitute was dated 2/26/93. She said that the title of the bill had been changed to reflect changes made in the body of the bill. She stated that new language appeared on page 2, line 26, of the committee substitute. A technical change had been made, she indicated, to make the language less wordy. MS. HORETSKI pointed out additional new language on page 2, line 6. At the request of the committee, the altered language provided that a stalker who possessed a deadly weapon would be guilty of a felony rather than a misdemeanor. At the bottom of page 2 and continuing on to page 3, Ms. Horetski noted the expanded definition of "family member." She indicated that the new language added "uncle, aunt, nephew, or niece" to other family members already mentioned. She noted that the language had been taken from elsewhere in existing law. MS. HORETSKI called the members' attention to page 3, lines 4 and 5, where former spouses and past or present romantic partners were also added to the definition of "family member." She noted that the language changes regarding family members were an effort to include anyone who conceivably might be the target of a stalker. Number 445 REP. NORDLUND asked if all of the language changes were really necessary. Number 448 MS. HORETSKI called Rep. Nordlund's attention to the elements of stalking on page 2, line 21. She said that a person committed the crime of stalking if that person knowingly engaged in a course of conduct that placed another person in fear for themselves or in fear of death or physical injury to a family member. She gave an example of a woman breaking up with her boyfriend, and the boyfriend making threats toward her child; which would be a form of stalking. Number 456 REP. NORDLUND asked if in that instance the stalker would be stalking another individual (the child) and not the child's mother. Number 458 CHAIRMAN PORTER clarified the point by saying that if the action were directed at the child, then the child would be the victim. However, in other instances, the action was directed at a mother by making threats toward her child. MS. HORETSKI pointed out a change on page 4, lines 3 and 4, which she said was an alteration to the assault statutes, not the stalking law. She said section 3 was also new, describing what "family member" meant, in the assault statutes. This was a technical amendment, she noted. MS. HORETSKI pointed out that language on page 4, lines 23 to 26, was being moved to another section of the bill, on page 4, lines 3 to 5. Number 485 CHAIRMAN PORTER explained that there was a relationship between the crimes of stalking, assault, and terroristic threatening. He said the changes that Ms. Horetski was delineating were an attempt to make the elements of all three of the crimes logical and consistent with each other. Number 494 MS. HORETSKI said that on the last page of the bill, section 8, there was a change to the maximum allowable probationary period, extending it for all crimes from five to up to ten years. Earlier versions of the bill had only changed the maximum probationary period for the crime of stalking, she said, and not for other crimes. MS. HORETSKI stated that there was new language in the applicability section stating that criminal convictions which occurred before the effective date of HB 64 would be considered "previous convictions" under the bill. She said an immediate effective date had been added to the bill, in section 11. Number 516 REP. KOTT mentioned a Senate bill which extended the period of probation from five to ten years. He said that if he were opposed to the Senate bill, he would also be opposed to HB 64. He stated that a recent report had indicated that the majority of new correctional system clients were in the system due to probation violations. He added that he was not sure if he would be willing to extend probation to ten years for every crime. Number 540 CHAIRMAN PORTER noted that Rep. Kott had brought up a legitimate point. He emphasized that the provision in the original bill extended the potential probation period to 99 years. He noted that the idea behind that provision was that there were people who fell into patterns of committing this type of crime who needed to be deterred from committing the same type of crime once released from incarceration. CHAIRMAN PORTER said the Department of Law found the 99-year probation period difficult to justify for stalking, in light of the fact that other severe crimes had shorter maximum probation periods. He said that in that light, it was decided to change the maximum period of probation from 99 years to ten years, and to extend the change to all crimes. Number 595 REP. PHILLIPS asked if the title of HB 64 were tight enough. Number 602 MS. HORETSKI replied that the title was accurate, but could be tightened. Number 610 REP. PHILLIPS said that the title seemed all right to her, but she had wanted to raise the issue. Number 614 CHAIRMAN PORTER commented that he did not anticipate the bill experiencing any problems in the Senate, as a result of a non-restrictive title. Number 621 REP. KOTT asked if the Department of Corrections had submitted a more recent fiscal note than the one dated February 19. REP. PHILLIPS commented that the committee should alert the Finance Committee that the Department of Corrections needed to submit another fiscal note. Number 651 CHAIRMAN PORTER said that the Finance Committee would be an appropriate place to discuss the Department of Corrections' fiscal note. He suggested that HB 64 be held until the Department of Corrections could address its fiscal note. REP. NORDLUND indicated that he had to leave. Number 661 REP. PHILLIPS moved to pass CSHB 64 out of the Judiciary Committee with individual recommendations, and that the committee request that the Department of Corrections submit an amended fiscal note to the Finance Committee. She noted that the second part of her motion could be included in a letter of intent. Number 671 CHAIRMAN PORTER, hearing no objection, ordered that CSHB 64 (JUD) be moved out of committee with individual recommendations. CHAIRMAN PORTER announced that HB 100 was the next item of business before the committee. HB 100 - PROSECUTION OF JUVENILE FELONS Number 675 MS. HORETSKI explained that a draft committee substitute for HB 100 had been prepared for the members' discussion. She went over changes that had been made to the original bill, which set up a scheme to transfer juveniles into adult court for certain offenses, but allowed for juveniles to transfer back to the juvenile system if the juvenile could show that she or he was "amenable to treatment." She noted that under HB 100, the burden of proof of treatability was on the juvenile. MS. HORETSKI commented that the proposed committee substitute contained an "automatic" waiver. If a juvenile aged 16 or older were charged with an unclassified or class A felony, he or she would be moved into adult court, she said. MS. HORETSKI mentioned a similar bill, SB 54, which had been reported out of the Senate Judiciary Committee. She noted that the present version of SB 54 was not identical to either HB 100 or the proposed committee substitute. However, she noted, it was closer in content to HB 100. Number 710 CHAIRMAN PORTER commented that SB 54 had, when introduced, looked just like the proposed committee substitute for HB 100. The chairman noted that the idea behind HB 100 was to have juveniles of a certain age who were charged with serious offenses treated like adults. He said it was hoped that HB 100 would serve as a deterrent to some degree. CHAIRMAN PORTER noted that two approaches could be taken to accomplish the goal of HB 100. One approach, set out in the proposed committee substitute, would be to automatically waive certain juvenile offenders to adult court. Under another approach, set out in the original HB 100, juveniles would be automatically waived into adult court, but could petition to have their cases moved back to juvenile court. Number 770 REP. PHILLIPS asked the chairman if he had discussed the approach taken in the proposed committee substitute with the sponsor of HB 100. Number 771 CHAIRMAN PORTER indicated that HB 100's sponsor would not object to the adoption of the committee substitute. He speculated that the Senate bill had been amended the way that it was to gain enough support for the committee to report it out. Number 785 MS. HORETSKI stated that, as originally drafted, HB 100 applied to 15- 16- and 17-year-olds who had been charged with murder or attempted murder, or who had committed an unclassified or class A felony and had been previously adjudicated for a felony, or who had been charged with a felony and had been previously adjudicated as an adult for a felony. If any of those situations were true, she said, a minor would be treated as an adult. However, a juvenile could petition to be returned to juvenile court. TAPE 93-24, SIDE B Number 000 REP. PHILLIPS asked Ms. Horetski to clarify some of the provisions of the proposed committee substitute. Number 009 MS. HORETSKI responded that the proposed committee substitute contained an automatic waiver for 16- and 17- year-olds, whereas the original bill had an automatic waiver for 15-, 16-and 17-year-olds. The original bill applied to all unclassified and class A felonies, she said. The proposed committee substitute provided that 16- and 17-year- olds charged with murder would be waived into adult court, where they would stay. Number 033 REP. KOTT asked about allowing a juvenile to petition the court to be tried in juvenile court, due to mitigating circumstances. Number 045 MS. HORETSKI said that the screening and charging of adult offenders was performed by the Department of Law (DOL). The screening and charging of juvenile offenders was conducted by the Department of Health and Social Services (DHSS), she added. She said that DHSS, in consultation with DOL, determined the offense with which the juvenile offender would be charged. But, she said, if a juvenile was not charged with either an unclassified or a class A felony, HB 100 would not apply. She noted that mitigating circumstances would be taken into consideration during the screening and charging process. HB 100 would not affect that process, she said. Number 094 REP. NORDLUND noted that all of the facts of a case might not be known until a trial occurred. However, he said, by that time, a juvenile would already have been transferred into the adult justice system. Number 118 MS. HORETSKI commented that an investigation was conducted in all criminal cases. She said that no charges would be filed prior to an investigation. Number 131 CHAIRMAN PORTER asked at what stage of the proceedings an attorney was assigned to a juvenile defendant. Number 136 MS. HORETSKI said that an attorney would be assigned at the juvenile court's equivalent of an arraignment. Number 143 CHAIRMAN PORTER asked, When during the process would the decision be made to charge a juvenile with an offense? He said that it was his assumption that law enforcement officers would treat a juvenile as a juvenile until a decision was made to charge the individual with an adult offense. MS. HORETSKI stated that the chairman's assumption was correct. Number 190 CHAIRMAN PORTER commented that the automatic waiver procedure would not go into effect until the decision to charge a juvenile offender with an adult offense had been made. Number 197 REP. KOTT commented that often criminal charges were brought in an expeditious manner. Number 200 REP. NORDLUND said that he had to leave the meeting, but noted that he would be more comfortable with HB 100 if he knew how thoroughly DHSS initially investigated crimes. Number 206 RANDALL HINES, YOUTH CORRECTIONS SPECIALIST with the DHSS, appeared before the committee to answer questions. Number 209 CHAIRMAN PORTER asked if juveniles would be treated as juveniles until they were formally charged with an adult offense. Number 218 MR. HINES replied that when a juvenile was referred to DHSS by law enforcement officials, a police report normally accompanied the referral. He stated that intake personnel screened the report and determined what information still needed to be gathered. Once the information was complete, he said, DHSS and DOL officials met to decide what crime the juvenile should be charged with. MR. HINES noted that if a juvenile was incarcerated, charges had to be filed within 48 hours. If the juvenile was not incarcerated, he said, there was more time to determine the appropriate charges. Number 247 REP. NORDLUND reiterated his contention that only during a trial did all the facts of a case come out. He said that DHSS' investigation was limited in scope. He noted that a limited investigation could result in a juvenile being improperly placed into the adult system. By the time all of the facts were known, he said, it was too late: the juvenile was already in the adult system. Number 265 JENNY MURRAY, LEGISLATIVE ASSISTANT TO REP. CON BUNDE, noted that the sponsor favored passage of the original version of HB 100. She said that he was concerned about the high fiscal impact of the proposed committee substitute. MS. MURRAY noted that there was a "reverse waiver" procedure in the original HB 100; juveniles who committed certain crimes would automatically go into the adult justice system, but could petition to be transferred back into juvenile court. She noted that the role of the judge was an important factor in the process of moving juveniles into and out of adult court. MS. MURRAY gave an example of a child, who had been abused for years, murdering his stepfather. She said that under the provisions of the committee substitute for HB 100, the child would probably be automatically waived into adult court. Under the original HB 100, she said, if the defense could prove during a hearing that the juvenile were amenable to treatment, the juvenile could be transferred back to the juvenile system. She noted that the original HB 100 contained a "catch" provision, which was not included in the committee substitute. Number 329 CHAIRMAN PORTER commented that the original HB 100 would probably require that more hearings be held than were required under the committee substitute. In that light, he asked Ms. Murray why it was felt that the committee substitute would result in a higher cost to the state. Number 340 MS. MURRAY noted that the committee substitute was very similar to the original SB 54. She said that fiscal notes accompanying the original SB 54 were much higher than the fiscal notes for HB 100. Number 366 CHAIRMAN PORTER stated that sometimes the philosophies of the Public Defender Agency and the Office of Public Advocacy were reflected in their fiscal notes. He asked Ms. Murray if it would be fair to say that the original HB 100 would result in a heavier workload for the court system than would the committee substitute. MS. MURRAY said that she did not know the answer to the chairman's question. CHAIRMAN PORTER announced that HB 100 would be held in committee, and another hearing would be scheduled for a time when Rep. Bunde could be present. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 1:24 p.m.