Legislature(1993 - 1994)
04/20/1994 02:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 20, 1994 2:30 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Jeannette James, Vice-Chairman Representative Gail Phillips Representative Pete Kott Representative Joe Green Representative Jim Nordlund MEMBERS ABSENT Representative Cliff Davidson COMMITTEE CALENDAR SB 252 "An Act prohibiting the possession of child pornography." AMENDED AND PASSED SB 293 "An Act relating to the authority of the commissioner of natural resources to reconvey, or relinquish an interest in, land to the United States if that land or interest being reconveyed or relinquished is identified in an amended application for a land allotment under federal law." MOVED OUT SB 332 "An Act relating to the possession of 25 or more marijuana plants." MOVED OUT SB 342 "An Act relating to Risk Based Capital for Insurers." NOT HEARD WITNESS REGISTER Sharon Clark, Legislative Aid to Senator Mike Miller State Capitol, Room 423 Juneau, AK 99801-1182 465-4976 POSITION STATEMENT: Gave sponsor statement for SB 252 Mrs. Ermalee Hickel, First Lady of Alaska Governor's House 716 Calhoun St. Juneau, AK 99801 465-3500 POSITION STATEMENT: Supported SB 252 Representative Bettye Davis State Capitol, Room 432 Juneau, AK 99801-1182 465-3875 POSITION STATEMENT: Supported SB 252 Bob Head, Chairman Alaska Human Relations Commission PO Box 20218 Juneau, AK 99802 463-3834 h./ 780-4909 w. POSITION STATEMENT: Supported SB 252 Diane Schenker, Special Assistant to the Commissioner Department of Corrections 2200 E. 42nd Avenue Anchorage, AK 99508-5202 561-4426 POSITION STATEMENT: Supported SB 252 Jerry Luckhaupt, Legal Council Division of Legal Services Legislative Affairs Agency PO Box 110300 Juneau, AK 99811-0300 465-3428 POSITION STATEMENT: Supported SB 252 Sharon Clark, Legislative Aid to Senator Mike Miller State Capitol, Room 423 Juneau, AK 99801-1182 465-4976 POSITION STATEMENT: Supported SB 252 Margot O. Knuth, Assistant Attorney General Criminal Division Department of Law PO Box 110300 Juneau, AK 99811-0300 465-3428 POSITION STATEMENT: Supported SB 252 Bryce Edgmon, Legislative Aid to Senator George Jacko State Capitol, Room 125 Juneau, AK 99801-1182 465-4942 POSITION STATEMENT: Gave sponsor statement for SB 293 Ron Swanson, Director Division of Lands Department of Natural Resources PO Box 107005 Anchorage, AK 99510-7005 762-2692 POSITION STATEMENT: Supported SB 293 Joe Ambrose, Chief of Staff to Senator Robin Taylor Capitol Bldg., Room 30 Juneau, AK 99801-1182 465-3873 POSITION STATEMENT: Gave sponsor statement for SB 332 PREVIOUS ACTION BILL: SB 252 SHORT TITLE: POSSESSION OF CHILD PORNOGRAPHY SPONSOR(S): SENATOR(S) MILLER,Taylor,Salo,Halford; REPRESENTATIVE(S) B.Davis,Kott,Parnell JRN-DATE JRN-PG ACTION 01/18/94 2529 (S) READ THE FIRST TIME/REFERRAL(S) 01/18/94 2529 (S) JUD, FIN 02/11/94 2806 (S) COSPONSOR(S): TAYLOR 02/16/94 (S) JUD AT 01:30 PM BELTZ ROOM 211 02/16/94 (S) MINUTE(JUD) 02/18/94 2884 (S) JUD RPT CS 4DP SAME TITLE 02/18/94 2885 (S) ZERO FNS TO SB & CS PUBLISHED 02/18/94 2885 (S) (CORR, ADM-2, DPS, LAW) 03/01/94 (S) FIN AT 09:00 AM SENATE FINANCE 518 03/01/94 (S) MINUTE(FIN) 03/02/94 3027 (S) FIN RPT 7DP (JUD)CS SAME TITLE 03/02/94 3027 (S) PREVIOUS ZERO FNS 03/02/94 3027 (S) (CORR, ADM-2, DPS, LAW) 03/09/94 3133 (S) COSPONSOR(S): SALO 03/09/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 03/09/94 (S) MINUTE(RLS) 03/10/94 3148 (S) RULES RPT 3CAL 1NR 3/10/94 03/10/94 3150 (S) READ THE SECOND TIME 03/10/94 3150 (S) JUD CS ADOPTED UNAN CONSENT 03/10/94 3150 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/10/94 3150 (S) READ THE THIRD TIME CSSB 252(JUD) 03/10/94 3150 (S) COSPONSOR(S): HALFORD 03/10/94 3151 (S) PASSED Y17 N- E2 A1 03/10/94 3151 (S) Taylor NOTICE OF RECONSIDERATION 03/10/94 3151 (S) RECON TAKEN UP SAME DAY UNAN CONSENT 03/10/94 3151 (S) PASSED ON RECONSIDERATION Y18 N-E2 03/10/94 3161 (S) TRANSMITTED TO (H) 03/11/94 2712 (H) READ THE FIRST TIME/REFERRAL(S) 03/11/94 2712 (H) JUDICIARY 03/14/94 2804 (H) CROSS SPONSOR(S): B.DAVIS, KOTT 03/25/94 (H) JUD AT 01:00 PM CAPITOL 120 04/11/94 (H) JUD AT 01:00 PM CAPITOL 120 04/13/94 (H) JUD AT 01:00 PM CAPITOL 120 04/14/94 (H) JUD AT 01:00 PM CAPITOL 120 04/20/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: SB 293 SHORT TITLE: NATIVE ALLOTMENTS ON STATE LAND SPONSOR(S): SENATOR(S) JACKO,Zharoff; REPRESENTATIVE(S) Hoffman JRN-DATE JRN-PG ACTION 02/11/94 2788 (S) READ THE FIRST TIME/REFERRAL(S) 02/11/94 2788 (S) RES, JUD 03/23/94 (S) RES AT 03:30 PM BUTROVICH ROOM 205 03/23/94 (S) MINUTE(RES) 03/24/94 3342 (S) RES RPT 4DP 1NR 03/24/94 3342 (S) ZERO FN PUBLISHED (DNR) 04/06/94 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/06/94 (S) MINUTE(JUD) 04/08/94 3522 (S) JUD RPT 2DP 3NR 04/08/94 3522 (S) PREVIOUS ZERO FN (DNR) 04/08/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 04/08/94 (S) MINUTE(RLS) 04/11/94 3556 (S) RULES RPT 3CAL 1NR 4/11/94 04/11/94 3560 (S) READ THE SECOND TIME 04/11/94 3560 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/11/94 3560 (S) READ THE THIRD TIME SB 293 04/11/94 3561 (S) PASSED Y19 N1 04/11/94 3561 (S) COSPONSOR(S): ZHAROFF 04/11/94 3567 (S) TRANSMITTED TO (H) 04/12/94 3367 (H) READ THE FIRST TIME/REFERRAL(S) 04/12/94 3367 (H) RESOURCES, JUDICIARY 04/18/94 3542 (H) RES RPT 5DP 1NR 04/18/94 3542 (H) DP: HUDSON, CARNEY, GREEN, JAMES 04/18/94 3542 (H) DP: WILLIAMS 04/18/94 3542 (H) NR: DAVIES 04/18/94 3542 (H) -PREVIOUS SENATE ZERO FN (DNR) 3/24/94 04/18/94 (H) RES AT 08:15 AM CAPITOL 124 04/18/94 (H) MINUTE(RES) 04/20/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: SB 332 SHORT TITLE: POSSESSION OF 25 LIVE MARIJUANA PLANTS SPONSOR(S): JUDICIARY JRN-DATE JRN-PG ACTION 02/22/94 2912 (S) READ THE FIRST TIME/REFERRAL(S) 02/22/94 2912 (S) JUDICIARY 04/12/94 3583 (S) JUD RPT CS 1DP 4NR NEW TITLE 04/12/94 3583 (S) ZERO FN TO SB & CS PUBLISHED (DPS) 04/13/94 3629 (S) RULES TO CALENDAR 4/13/94 04/13/94 3637 (S) READ THE SECOND TIME 04/13/94 3637 (S) JUD CS ADOPTED UNAN CONSENT 04/13/94 3637 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/13/94 3637 (S) READ THE THIRD TIME CSSB 332(JUD) 04/13/94 3637 (S) PASSED Y19 N- A1 04/13/94 3651 (S) TRANSMITTED TO (H) 04/14/94 3423 (H) READ THE FIRST TIME/REFERRAL(S) 04/14/94 3423 (H) JUDICIARY BILL: SB 342 SHORT TITLE: RISK BASED CAPITAL FOR INSURERS SPONSOR(S): LABOR & COMMERCE BY REQUEST JRN-DATE JRN-PG ACTION 03/03/94 3057 (S) READ THE FIRST TIME/REFERRAL(S) 03/03/94 3057 (S) LABOR & COMMERCE, JUDICIARY 03/15/94 (S) L&C AT 01:30 PM FAHRENKAMP ROOM 203 03/15/94 (S) MINUTE(L&C) 03/18/94 3266 (S) L&C RPT CS 1DP 3NR SAME TITLE 03/18/94 3266 (S) ZERO FN TO SB & CS (DCED) 04/06/94 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/06/94 (S) MINUTE(JUD) 04/08/94 3523 (S) JUD RPT 3DP 2NR (L&C)CS 04/08/94 3523 (S) PREVIOUS ZERO FN (DCED) 04/08/94 (S) RLS AT 00:00 AM FAHRENKAMP ROOM 203 04/08/94 (S) MINUTE(RLS) 04/11/94 3556 (S) RULES RPT 3CAL 1NR 4/11/94 04/11/94 3561 (S) READ THE SECOND TIME 04/11/94 3561 (S) L&C CS ADOPTED UNAN CONSENT 04/11/94 3561 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/11/94 3561 (S) READ THE THIRD TIME CSSB 342(L&C) 04/11/94 3562 (S) PASSED Y19 N1 04/11/94 3562 (S) EFFECTIVE DATE SAME AS PASSAGE 04/11/94 3562 (S) Adams NOTICE OF RECONSIDERATION 04/12/94 3609 (S) RECON TAKEN UP - IN THIRD READING 04/12/94 3610 (S) PASSED ON RECONSIDERATION Y18 N1 A1 04/12/94 3610 (S) EFFECTIVE DATE SAME AS PASSAGE 04/12/94 3611 (S) TRANSMITTED TO (H) 04/13/94 3400 (H) READ THE FIRST TIME/REFERRAL(S) 04/13/94 3400 (H) STATE AFFAIRS, JUDICIARY 04/18/94 (H) STA AT 08:00 AM CAPITOL 102 04/18/94 (H) MINUTE(STA) 04/20/94 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-62, SIDE A Number 001 The House Judiciary Standing Committee was called to order at 2:30 on April 20, 1994. A quorum was present. Chairman Porter announced that the following bills would be heard: SB 252, SB 293, SB 332. He called Sharon Clark from Senator Miller's office to come forward and introduce SB 252. SB 252 - THE POSSESSION OF CHILD PORNOGRAPHY SHARON CLARK, Legislative Aid to Senator Mike Miller, described SB 252. She explained AS 11.41.455 and AS 11.61.125 prohibits the production and distribution of child pornography. Current law, however, does not address the issue of possession. SB 252 addresses a compelling need to close the loop by prohibiting the possession of child pornography as well as production and distribution. It is crucial that the state's statutes address this vital issue. For as long as the supply and the demand exist, producers will continue to victimize the children involved. In Osburne vs. Ohio, 495 US 103.109 LED SECOND 98, 110 Circuit Court, 1691, 1990. The court finally upheld the Ohio statute that banned the possession or viewing of child pornography. The court found that such a statute protects the victims of child pornography and encourages the destruction of existing child pornography. The physical and psychological trauma inflicted on victims of this sexual exploitation is so devastating that some children never heal. If we regulate when people are old enough to drink, drive, and vote, in order to protect them, then why would we not also regulate and ban the possession of child pornography to stop the cycle of abuse, in which the child is always the victim? This would be a Class B misdemeanor, and subject to a term of imprisonment of not more than 90 days, and to the fine of not more than $1 thousand. MS. CLARK urged the committee's support of SB 252. She said Senate Judiciary had a committee substitute for SB 252 offered by Commissioner Prewitt of the Department of Corrections, which provides an exemption for those professionals providing sex offender treatment. They may use some pictures or auditory tapes involving children. CHAIRMAN PORTER said he was privileged to welcome the First Lady of the State of Alaska, Mrs. Ermalee Hickel, and asked her to come forward to give her testimony. Number 116 MRS. ERMALEE HICKEL was pleased to lend her support of SB 252, prohibiting the possession of child pornography. She encouraged state senators and representatives to pass this extremely important bill. Pornography should have absolutely no place in our lives, and child pornography is a horrible outrage in our society as you all know. The terrible statistics concerning the abuse of our children and sexual abuse of all types cannot be ignored any longer and these statistics are staggering. As many of you know, Alaska ranks number one in the nation in child sexual abuse. It is so tragic that one in three American girls and one in seven boys will be sexually abused by the age of 18. Over 80 percent of child molesters admit to regular use of pornography, and a serial molester typically has from 360 - 380 victims in his lifetime. Those are staggering statistics. Both adult and child pornography is often used as an aid during these crimes, and often referred to as the instruction manual. Approximately 1.2 million children are exploited every year in the production of child pornography and child prostitution. Our children do not deserve this kind of treatment, and they must be protected in every way that we can find. By enacting legislation that makes possession of child pornography illegal, we can make a positive step forward in protecting our young people, and send the strong message to those who use this terrible material that we are not going to turn our heads away from the abuse of our children any longer. MRS. HICKEL stated she is a member of the national "Enough is Enough" campaign, an organization to which many of the Governors' wives belong. This campaign has done an outstanding job of making folks aware of the devastating problems of illegal pornography and child pornography. Their terrific national advertising, which I have seen in "Time" and "Newsweek" magazines, educating people about hard core pornography's relationship to sexual abuse of children is making a difference in protecting our children's lives. It is having a very positive affect on changing the laws concerning obscenity and child pornography. This fine organization is to be commended for it's outstanding work on behalf of America's children. Mrs. Hickel said she will let the organization know what Alaska is doing in legislation to protect our children in the nation. MRS. HICKEL said the devastation that child pornography causes is truly unforgivable. As Sharon said, it never goes away, and we must do all we can to stamp it out, for the sake of our children and the families. She expressed hope that each one of the committee members would give SB 252 their strongest support. She said from her heart, "Enough is enough." She thanked the committee for considering SB 252. CHAIRMAN PORTER recognized and welcomed Representative Bettye Davis. Number 200 REPRESENTATIVE BETTYE DAVIS testified that she could actually say "ditto" to everything Mrs. Hickel had said, and she does not believe in doing a whole lot of talk if the committee is ready to take action. She did want to say she was pleased to be there to testify on behalf of the bill, which she introduced in the House. She was pleased that it had made it to the Judiciary Committee from the Senate. Everything she had to say on her notes had already been said. She did illustrate that it so important that we consider this bill. We are one of the 23 states who have not taken this particular action. It behooves us to do it. We are number 47 when it comes to the well being of our children. She said she does not care what people say about people having the right to have things in the privacy of their home. We have to look at it from the standpoint, if you have child pornography materials in your home, some child had to be abused for you to have it. Even if they gave consent, it is considered to be abuse. Most of the material you see sometimes would include infants who could not even speak for themselves; and it is so devastating what happens to children when they are sexually molested at an early age. If one sexual abuser can abuse over 380 children within their lifetime; and we have many, many people that are doing this, look what we are doing to the children in this state. She also is a member of the "Enough is Enough" group. It is time for us to do the right thing and pass this bill. If there was anything she could change about it, she would like for the penalty to be even stiffer, but if this will just get our foot in the door, this is good enough. This piece of legislation is long overdue, and you will serve your state very well if you pass it. Number 258 REPRESENTATIVE JAMES commented that she wondered why the penalty was only a Class B misdemeanor. Number 275 BOB HEAD, Chairman, Alaska Human Relations Commission, was next to testify. He summarized a study of a six step life cycle of child pornography. He explained that in step one, the offender displays existing child pornography to a child, ostensibly as educational material. Step two is an attempt to convince the child that explicit sex is acceptable, even desirable, using photographs and movies, or whatever they have. In step three, the child porn is then used to convince the young victim that children are already involved and it is A-okay. If it is there in the movies, it cannot all be bad. At step four, the child pornography desensitizes the child, lowering his/her inhibitions. At step five, some of these sessions progress to sexual activity, providing the child molester can get away with it. In step six, using photographs from this new activity, the cycle begins again, using those photographs and videos to entice another child into the same activity. Pain suffered by children used in pornography is often devastating and always significant. Short term effects of such involvement include depression, suicidal thoughts, feeling ashamed, guilt, alienation from family and peers, and a massive acute anxiety. Victims in the long term may successfully integrate the event, particularly with psychiatric help, but many will likely suffer a repetition of this abuse cycle. This is key, because next time around they are the abuser. At this time, they are suffering a chronic low self esteem, depression, anxiety regarding their sexuality, role confusion, a fragmented sense of self, and a very strongly enhanced probability of entry into prostitution themselves. All, of course will suffer the agony, and Mrs. Hickel eluded to this, of knowing that their sexual activity, on film, is now in circulation. The effects on their future lives is unknowable and beyond their control, and may well be the most unhealable wound. This same commission, which was concluded in '86, notes that several states have made kiddie porn illegal, and consider this action an extremely effective weapon against child molestation. If we can make a stronger law to make it uncomfortable for child molesters to live in our state, then it behooves us all to do anything we can to reach that plateau. Several states currently have statutes which classify sexual exploitation of children as a felony, including possession of child porn. Some of these states also mandate registration of sex crime felons. Mr. HEAD said that considering the life shattering effect on our youth, he asked, on behalf of the Human Relations Commission, that the committee enact this legislation prohibiting the possession of child porn in the State of Alaska. We would further ask that some real teeth be put in it. Let us make the Alaska statute among the strongest, not the weakest. Have the first conviction, for instance require registration on a law enforcement network; and link that registration to the requirement for lifetime probation, as recommended in the attorney general's summary. MR. HEAD noted there is a spectrum of our society that feeds continually on this kind of thing. They are out there, and they are involved in these things. They have journals within their spectrum. Those journals tell them periodically where the easiest places are to get away with this activity, and where the most hazardous places are. Whatever we do, let us make the State of Alaska the most hazardous place in this nation for pedaphiles. Number 360 REPRESENTATIVE PHILLIPS asked Mr. HEAD which states have enacted the offense as a felony offense. MR. HEAD said he thought Idaho and Iowa did. Number 378 REPRESENTATIVE PHILLIPS asked Diane Schenker of the Department of Corrections about Section B of the bill starting on line nine. She noticed that amendment was put in by Corrections. She explained that there was an incident last year on the Kenai Peninsula, where a group of upset parents got together and formed an organization against this kind of treatment in the Corrections system. She did not know if it was being used on youthful offenders, or if it was being used on adults. DIANE SCHENKER, Special Assistant to the Commissioner, Department of Corrections, said she did not remember that particular group, but from time to time we have different interested citizens question us about the use of this kind of treatment. Usually when the department had given them the information and the reason behind it, the group has appeared to be satisfied with the explanation. REPRESENTATIVE PHILLIPS asked Ms. Schenker if they would use that kind of treatment on youthful offenders. MS. SCHENKER stated the only people in our institutions are adults, or a very small percentage of waived juveniles, so I am not aware what Health and Social Services does in their juvenile facilities. Number 400 REPRESENTATIVE GREEN asked what a plethysmograph was. Number 420 MS. SCHENKER said it is similar to a lie detector, but measures the physiological arousal of the offender to various pictures or tapes, in order for treatment staff to review. CHAIRMAN PORTER said that was an excellent definition. Number 425 REPRESENTATIVE GREEN said he thinks he has gotten his children through without having had to be part of this whole problem. He has a slew of grandchildren, and it is disturbing that they are going to have to face this kind of garbage. He asked if this could be strengthened without running amuck of a crazy judge in a court saying that is overreacting. If so he strongly recommended toughening it up. CHAIRMAN PORTER asked Jerry Luckhaupt, the bill drafter to describe the level of offense that this is, in relation to other similarly placed offenses. JERRY LUCKHAUPT, Legislative Council, Division of Legal Services, Legislative Affairs Agency, stated this is a Class B misdemeanor. The unlawful exploitation of a minor, which is something that, if you take pictures of that, it would be child pornography, basically, is the way we would find this. The unlawful exploitation of a minor is a Class B felony in this state. We currently have a statute on the distribution of child pornography. If you distribute child pornography, that is a Class C felony. There has been some stair- stepping by the Legislature at the time. If you follow that stair-stepping to a logical conclusion, you would think the mere possession, since the legislature usually defines distribution as being worse than mere possession, like with drugs, it would be logical for this to be a Class A misdemeanor. MR. LUCKHAUPT referred to testimony in given to the Senate Judiciary Committee, and said there was some material provided to them, listing the numbers of states that have laws on this subject, and it was fairly equally divided as to whether or not they classify as a felony or a misdemeanor, the mere possession. The material indicated are almost 40 states listed, of which 22 of them made mere possession of child pornography a misdemeanor. The other 18 states made it a felony. He did not feel that there is any privacy right to possess child pornography. He analogized child pornography to the possession of cocaine, which the Alaska Supreme Court has not found to be protected under the right to privacy provisions of our constitution. Whereas the possession of marijuana by adults for their own personal use in their own homes is protected under our privacy provision, or our constitution. He analogized that to the mere possession of regular obscenity. Regular obscene material was ruled to be protected under the U.S. Constitution, by the U.S. Supreme Court in 1969. The mere possession of regular old obscene material in your own home for personal purposes is protected, and our Alaska Constitutional Privacy Provision would protect that same material. Child pornography has a greater danger, and there is some proven danger like with cocaine, as opposed to the debate that goes on about the dangerousness of marijuana, which could be analogized to the dangerousness of regular pornography. Child pornography does have some proven danger out there, so a court would not find the possession of child pornography to be protected. Increasing the penalty to Class A would not affect that rationale. Even if you were going to classify it as a Class C felony, that probably would not actually have an effect. The Department of Public Safety has stated in fiscal notes that they do not anticipate going out and actively conducting sting operations to prosecute people under this law. It would be something that they would encounter in executing a search warrant, or something like that, in cases where sexual abuse has been discovered, or is being investigated. Sexual abuse of minors would then find an executing of a search warrant of the suspects home, they might find this material, and then they would start prosecution as part of the other charges. So it is within your power to increase the penalty. CHAIRMAN PORTER asked Mr. Luckhaupt if he had attended hearings where the decision to select Class B Misdemeanor was discussed, and if he knew what the rationale was. Number 535 MR. LUCKHAUPT said they started out, basically reintroducing a version from Representative Bettye Davis. Her version was a reintroduction of a bill from the 17th Legislature, and that was reintroduction from the 16th Legislature. The Class B Misdemeanor was just picked out of thin air, and everybody kept going on. There was never any real rationale. Senate Judiciary did discuss this matter a little, and then just passed the bill out without reaching a conclusion as to whether or not they wanted to increase the penalty. They amended the bill to include the penile plethysmograph treatment, and went ahead and passed out the bill without actually addressing the discussion that went on about increasing the penalty. REPRESENTATIVE JAMES indicated she did not think a Class B Misdemeanor was tough enough. Number 548 CHAIRMAN PORTER agreed that it did not seem to be sending the correct message. He asked Sharon Clark if she believed Senator Miller would oppose amending the bill. SHARON CLARK did not think so and offered to check with him. REPRESENTATIVE GREEN said he would like to go all the way up to a felony. He thought felony would send a message that is a lot stronger than any numbers behind a misdemeanor. CHAIRMAN PORTER asked Margot Knuth to come and answer some questions. Number 560 MARGOT O. KNUTH, Assistant Attorney General, Criminal Division, Department of Law, said she thought a Class A Misdemeanor makes the most amount of sense from our existing scheme because we have a Class C felony offense already related to child pornography, which is distribution. If we have distribution being the Class C felony, and we have possession being a Class C felony, they are going to point fingers at each other and say, "Wait a minute! Problem, problem!" She was not sure which one would be thrown out more readily, but there needs to be a stacking, and if you want it, and if you thought you had enough time this session to work it all out, you could move everything up so that you would be making quite a change. But if you wanted possession to be a "C", you should make distribution a "B", and creation or production an "A". But it is important that there be the stacking because the conduct does become more culpable, and equal protection requires that there be a relationship between the culpability and the level of the offense. Number 575 REPRESENTATIVE NORDLUND questioned about how this would be enforced, or what would be the practical situations in which it this would be enforced. Possibly these materials would be found in the investigation of another crime. Perhaps, the activity was actually taking place in the house and you are going in to investigate that. He said his point is that this would probably rarely be enforced in it's own right, and it would be a crime added to a number of other crimes in which the perpetrator would get hit with a pretty stiff penalty anyway. CHAIRMAN PORTER said it could be a crime in which the original arrest that was made had no relationship to it. It could be a DWI arrest, and at the jail when they go through the possessions, they find child pornography. It could be arrest for shoplifting or whatever. If it were an offense related to the pornography, more than likely, we would be into a felony situation in the first place, with transporting this material, or child sexual abuse. REPRESENTATIVE GREEN expressed concern about if a person were picked up for shoplifting, and in his possession was child pornography, would the offense be bigger or greater? Number 601 CHAIRMAN PORTER said no. He said that the possession would not necessarily be discovered as a result of the investigation of a child sexual assault type of case, or a child pornography type of case. Number 611 REPRESENTATIVE GREEN said he did not know whether it would be more likely, or less likely, but the mere fact, as it was brought out in some of the testimony, that this person happens to have this stuff in his possession, tells us somebody had to produce it and sell it. If we can start anywhere, and cut that chain, I think we should, and jack up the penalty as high as we possibly think the courts would allow. CHAIRMAN PORTER said that is exactly what we are discussing and we are wondering if we would have a problem making this a Class C felony. Number 615 MARGOT KNUTH said if it is a crime at all, and a Class A Misdemeanor is fairly significant, that is up to a year in jail, and you are usually talking about up to a year in jail, and you are usually talking about fines of hundreds of dollars, that is going to be new and different. The message we are trying to send out is, "Don't buy, don't be a consumer, don't be in possession." You can do that even with just the Class A misdemeanor. Right now, everybody says, "I am not a distributer. I am just a possessor." There are no consequences for it. Where I expect we are going to pick this up the most often, is actually when we are doing searches of houses for drugs and things like that, and that is going to be a big time offense already so this gets added to the stack. There probably will not be a situation where they would apply for a search warrant just because we have reason to think there is possession of child pornography in the house. It is much more likely they would be there for another reason. But making it a crime at all, the Class B Misdemeanor is pretty innocuous. Class A Misdemeanor is pretty significant. Right now it is the maximum offense for a DWI, and that is the most serious crime we have in this state. CHAIRMAN PORTER added that there would be challenges from those charged with this offense in relation to transporting, if it were a felony. He suggested that if someone wants to entertain moving this out, that we would not go past Class A Misdemeanor, and if it is, it should be revisited this in terms of looking at the entire structure, that it be done that at another time. We do not want to hold this bill up, or jeopardize it. Number 649 REPRESENTATIVE JAMES asked if she could make an amendment on page 1, line 12, delete "B" and insert "A." CHAIRMAN PORTER stated there was motion to amend, and asked if there was any discussion. REPRESENTATIVE PHILLIPS asked for Representative Davis' opinion on this. REPRESENTATIVE DAVIS said she would love to see the tougher Class A penalty, but said she had concerns about getting the bill back over to the Senate for them to concur this late in the game. If it would not cause a problem, Ms. Davis said she would prefer to see "A" in there rather than "B". If it is going to cause some problem, she would rather see it moved out. It still has another committee of referral to go to on the House side. She asked if it would go from Judiciary to Finance. There was They were not sure if it would go to Finance or not, since there was no fiscal note. REPRESENTATIVE PHILLIPS stated that there would be time. SHARON CLARK interjected that the main thrust of Senator Miller's bill was to "close the loop", that we already have the other two laws on the books, and now we do not have one for possession, so that was the main part of getting it, was to close the loop. She would also hate to see it jeopardized and not getting it out this session. Number 676 CHAIRMAN PORTER asked if there was an objection to the amendment. Hearing none, the amendment was adopted. REPRESENTATIVE GREEN moved to pass HCSCSSB 252 (JUD), with a zero fiscal note and individual recommendations. CHAIRMAN PORTER said he would ask the Chairman of Finance to consider waiving the bill if there is a Finance Committee referral. SB 293 - NATIVE ALLOTMENTS ON STATE LAND Number 700 CHAIRMAN PORTER announced the next bill to come before the committee would be SB 293 "An Act relating to the authority of the commissioner of natural resources to reconvey, or relinquish an interest in, land to the United States if that land or interest being reconveyed or relinquished is identified in an amended application for a land allotment under federal law." BRYCE EDGMON, legislative staff to Senator Jacko, thanked Chairman Porter for hearing the bill, as well as extending apologies from Senator Jacko for not being able to make it to the hearing. He explained there is a situation in the state where there are Native Allotments, statewide, which are located on top of lands that the state has designated for public purpose. The prime example are those allotments located in state parks. He said there are also Native allotments located on airports, on prime recreational areas, on roads, and a several other sites the State has designated as public use areas. What SB 293 does is gives the Commissioner of the Department of Natural Resources (DNR) a tool to work with the allottee and the federal government to take this parcel of land, this allotment which is located on top of state land, that has been set aside for public use, and relocate it to another parcel outside of this public purpose area. The bill itself makes a technical change to Title 38, to give the commissioner of DNR the authority to reconvey the land to the federal government, once the relocation of the parcel has been designated. The bill has a zero fiscal note. It passed the Senate 19 - 1. It is actually felt that the bill would have a positive fiscal impact, because it would save DNR staff a lot of time in resolving these land use conflicts, and it would also save time in litigation, in the adjudication stage of resolving this allotment problem. MR. EDGMON ended his testimony with one anecdotal incident. He said was talking with the director of Parks right before the committee hearing today who told him of an elderly lady in the village of Newstuyahok, which is located outside of Dillingham, who filed for her allotment during the Teddy Roosevelt Administration. This woman is 104 years old now, and is still fighting to gain title to her Native allotment. He then said he would be available for any questions. Number 742 REPRESENTATIVE PHILLIPS referred to the latest land selections DNR has done to complete our statehood land selections and asked if the bill would conflict with those other selections. MR. EDGMON replied that it would not reduce the 100 million acres that the state receives from the federal government. REPRESENTATIVE GREEN said the he feels the bill is a good piece of legislation. He referred to there being a large number of cases that had to cross allotment areas. There are problems associated with who gives the permission; Is it the Bureau of Indian Affairs? Is it the allottee himself? Is it the state or the federal government? He said it is a nightmare, and if the bill can unscramble that nightmare, it is a good piece of legislation. CHAIRMAN PORTER asked where the selections would be made and where the classification of land selections would be made from. MR. EDGMON said it would be a mutually agreed upon site between DNR and the allottee. It would have to go through he normal best interest finding process for the department. It is envisioned that it would be somewhere nearby, because Native allotments are related to traditional use and occupancy. So, in a practical sense, it would be somewhere close by, outside that public use area. REPRESENTATIVE PHILLIPS asked Mr. Edgmon if we would have a conflict with municipal selected lands. Number 760 MR. EDGMON said a selection process would have to be approved by DNR. REPRESENTATIVE PHILLIPS asked if municipal lands would be allowed to be selected. MR. EDGMON said that is his understanding. RON SWANSON, Director of Division of Lands, Department of Natural Resources, said that the allottee, the State of Alaska, the Bureau of Indian Affairs, and BLM all have to agree upon what is going to happen here. There is no we are going to create another conflict situation, having an allotment move. He said they are trying to clarify the problem, make sure we have access, don't block airports, and do not conflict with public use sites. Usually you can fix a situation more than twice. You can do it three times. Mr. Swanson said the department strongly supports this bill. REPRESENTATIVE GREEN made a motion to move SB 293, with a zero fiscal note, and individual recommendations. CHAIRMAN PORTER asked if there was an objection. Hearing none, the motion carried. CSSB 332 - WEIGHT OF LIVE MARIJUANA PLANTS CHAIRMAN PORTER announced the next order of business would be SB 332 relating to the weight of live marijuana plants. He asked Joe Ambrose to come forward and give the sponsor statement. JOE AMBROSE, Chief of Staff to Senator Robin Taylor, said the Senate Judiciary Committee introduced SB 332, said SB 332 was introduced on February 22, 1994, at the request of law enforcement agencies, and with the cooperation of the Department of Law. They would like to address concerns over the aggregate weight provisions of our controlled substance laws. Current law requires that marijuana seized in an investigation be reduced to its most commonly used form that is a saleable product. This is a time consuming project. It took the Ketchikan narcotics team of 32 officer hours to process 200 mature marijuana plants. When SB 332 was first introduced it was an attempt to directly address the aggregate weight calculations provided under current law. That proved difficult with any suggested revision in the current formula, raising questions that could jeopardize prosecutions in some cases. The Judiciary Committee substitute, which was approved unanimously by the Senate, would instead give law enforcement agencies and prosecutors an alternative to using the aggregate weight calculation. In cases of misconduct involving a controlled substance in the fourth degree, which is a Class C felony, law enforcement officials could use either the possession of an aggregate weight of one pound, or 25 or more marijuana plants to prove their case. This bill targets large marijuana growing operations. It would simplify prosecution, and avoid the need to process the seized plants. He noted the bill has a zero fiscal note, and did pass the Senate unanimously. Number 825 CHAIRMAN PORTER asked Margot Knuth if there was any differentiation, or could there be a problem with regards to the maturity of the plants. MARGOT KNUTH, Assistant Attorney General, Criminal Division Department of Law, stated that there is nothing in the bill requiring the plant to have reached a certain level of maturity, and every baby marijuana plant has the potential of becoming a nice productive healthy plant. To that extent, we are fairly comfortable that if you have 25 plants you can identify, the point is well made that this is no longer close to personal use, if we have such an amount of marijuana anymore. The big advantage of the bill is we will be able to take our law enforcement officers out of the business of drying marijuana to preserve it for trial. The amount of effort, energy, and time that goes into that is almost staggering, and the larger the case is, the more work it is to do, and it becomes truly frightening that we are spending our time this way. And if you do not do that, you put the prosecutor in a real bind, because juries think about everything, and there is nothing worse than going into court with spoiled evidence. If you go in with moldy little plants, your case will just go out the window. This is a very practical bill. Number 850 CHAIRMAN PORTER wanted to say, for the record, that this could be a little tiny plant or a big plant, because from little tiny plants, great big plants grow; and somebody should not get off just because you bust them too quick. Number 855 MR. AMBROSE added one more comment with regards to the processing of the product. Depending on the time frame from the time of the arrest, to the charge, until you take the individual to trial, this product can continue to dry, and actually fall below the weight that is required in the law to prosecute a case. So you may have a pound at the time you charge the individual, and the weight can fall below that. It can get pretty complicated. REPRESENTATIVE NORDLUND asked how the number 25 was selected. MS. KNUTH said they went around the offices statewide and asked what people felt was a comfortable quantity to be a felony level. She said they tried to be conservative in the sense that they did not want it to be too small of a number. Ms. Knuth said 25 plants at moderate growth will weigh well over a pound. It is meant to be on that side of the line. TAPE 94-62, SIDE B Number 001 REPRESENTATIVE GREEN moved that CSSB 332 (JUD) be passed out of the House Judiciary Committee, with accompanying fiscal notes, and individual recommendations. There being no objection, the motion carried. REPRESENTATIVE GREEN added an anecdote. There is a highway between Huntington Beach and La Habra, CA, that is a divided highway. The police officer had his picture taken on a ladder. He was holding up two seven feet marijuana plants that had been growing wild there. Representative Green said he didn't know marijuana could get anywhere near that big. How many pounds would that be? CHAIRMAN PORTER presented Ms. Knuth with a plaque for providing the committee with a lot of support assistance. He said, as a matter of fact, we have mentioned that you are an honorary member. Chairman Porter said in recognition of your intent to leave the state, leave the continent, we would like to give you a token of our recognition of your contribution; a little plaque that just says, "Presented to Margot Knuth for Distinguished Service as an honorary eighth member of the House Judiciary Committee, 1993-1994. Number 060 REPRESENTATIVE PHILLIPS then presented a plaque with a gavel to Chairman Porter on behalf of the committee for the tireless work that has gone into this committee. She said he has done a very excellent job. The plaque reads, "Presented to Representative Brian Porter, Chairman, House Judiciary Committee, 18th Alaska Legislature 1993-94 for distinguished service to the people of Alaska." CHAIRMAN PORTER made his last speech, saying this may be our last meeting. He wanted to take the opportunity to thank the staff of the committee Gail Horetski last year, and Daniella Loper this year, that has provided legal council to the committee. He continued to speak: "Last year, Susan Phillips, how she did it, I do not know, but she managed to stay all year as our Committee Secretary, and as I have mentioned a couple of times; while we have had two or three false starts, we have got a keeper here with Diane Anderson. The members of the committee have been exemplary. We certainly have recognition of the loyal minority, being a minority and doing what minorities are supposed to do, but it has always been above board. It has always been without animosity, and I cannot say how much I appreciate that, and if there is nothing else, now before we finally say, "We are adjourned." The House Judiciary Committee meeting adjourned at 3:20 p.m.