Legislature(1995 - 1996)

03/08/1995 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 8, 1995                                         
                           1:15 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 COMMITTEE CALENDAR                                                            
 HB 13:     "An Act requiring persons authorized to make or incur              
            political campaign expenditures before filing for                  
            nomination to office and groups acting on behalf of them           
            to file certain election campaign finance disclosure               
            PASSED OUT OF COMMITTEE                                            
 HB 15:     "An Act authorizing disclosure from court records of the           
            name, address, and picture of, and other information               
            about, certain minors for whom a delinquency petition is           
            HEARD AND HELD                                                     
 HB 38:     "An Act relating to criminal sentencing; relating to the           
            availability for good time credit for offenders                    
            convicted of certain first degree murders; relating to             
            mandatory life imprisonment, parole, good time credit,             
            pardon, commutation of sentence, modification or                   
            reduction of sentence, reprieve, furlough, and service             
            of sentence at a correctional restitution center for               
            offenders with at least three serious felony                       
            convictions; and amending Alaska Rule of Criminal                  
            Procedure 35."                                                     
            HEARD AND HELD                                                     
 * HJR 1:   Proposing an amendment to the Constitution of the State            
            of Alaska relating to repeal of regulations by the                 
            HEARD AND HELD                                                     
 (* First public hearing)                                                      
 WITNESS REGISTER                                                              
 JEFF LOGAN, Legislative Assistant                                             
 Representative Joe Green                                                      
 State Capitol, Room 24                                                        
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4931                                                   
 POSITION STATEMENT:  Testified in favor of CSHB 13.                           
 BROOKE MILES, Juneau Branch Administrator                                     
 Alaska Public Offices Commission                                              
 Department of Administration                                                  
 P.O. Box 110222                                                               
 Juneau, AK 99811-0222                                                         
 Telephone:  (907)  465-4865                                                   
 POSITION STATEMENT:  Testified in favor of CSHB 13.                           
 REPRESENTATIVE GENE THERRIAULT                                                
 Alaska State Legislature                                                      
 State Capitol, Room 421                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4797                                                   
 POSITION STATEMENT:  Sponsor of HB 15                                         
 MARTHA HOLMBERG, Social Services Program Officer                              
 Division of Family and Youth Services                                         
 Department of Health and Social Services                                      
 P.O. Box 110630                                                               
 Juneau, AK 99811-0630                                                         
 Telephone:  (907)  465-3023                                                   
 POSITION STATEMENT:  Provided information on HB 15                            
 CHRIS CHRISTENSEN, General Counsel                                            
 Alaska Court System                                                           
 303 K Street                                                                  
 Anchorage, AK 99501                                                           
 Telephone:  (907)  264-8228                                                   
 POSITION STATEMENT:  Provided information on HB 15                            
 LAURIE OTTO, Deputy Attorney General                                          
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone:  (907)  465-3428                                                   
 POSITION STATEMENT:  Provided information on HB 38                            
 JERRY LUCKHAUPT, Legal Counsel                                                
 Legislative Affairs Agency                                                    
 130 Seward Street, Suite 409                                                  
 Juneau, AK 99801-2105                                                         
 Telephone:  (907)  465-2450                                                   
 POSITION STATEMENT:  Provided information on HB 38                            
 RANDALL BURNS, Executive Director                                             
 Alaska Civil Liberties Union                                                  
 P.O. Box 201844                                                               
 Anchorage, AK 99520                                                           
 Telephone:  (907)  276-2258                                                   
 POSITION STATEMENT:  Testified against HB 38                                  
 BARBARA BRINK, Deputy Director                                                
 Alaska Court System, Public Defender Agency                                   
 900 West Fifth, Suite 200                                                     
 Anchorage, AK  99501                                                          
 Telephone:  (907)  264-4400                                                   
 POSITION STATEMENT:  Testified against HB 38                                  
 PREVIOUS ACTION                                                               
 BILL:  HB  13                                                               
 SHORT TITLE: CAMPAIGN DISCLOSURE REPORTS                                      
 SPONSOR(S): REPRESENTATIVE(S) GREEN,Bunde                                     
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        23    (H)   PREFILE RELEASED                                  
 01/16/95        23    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        24    (H)   STA, JUD, FIN                                     
 01/19/95        88    (H)   COSPONSOR(S): BUNDE                               
 02/07/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/07/95              (H)   MINUTE(STA)                                       
 02/08/95       263    (H)   STA RPT  CS(STA) 7DP                              
 02/08/95       264    (H)   DP: JAMES, PORTER, GREEN, IVAN                    
 02/08/95       264    (H)   DP: ROBINSON, WILLIS, OGAN                        
 02/08/95       264    (H)   FISCAL NOTE (ADM)                                 
 03/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB  15                                                                
 SPONSOR(S): REPRESENTATIVE(S) THERRIAULT,Rokeberg,Bunde,Toohey                
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        24    (H)   PREFILE RELEASED                                  
 01/16/95        24    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        24    (H)   HES, JUD, FIN                                     
 01/19/95        88    (H)   COSPONSOR(S): BUNDE                               
 01/27/95       161    (H)   COSPONSOR(S): TOOHEY                              
 02/07/95              (H)   HES AT 03:00 PM CAPITOL 106                       
 02/07/95              (H)   MINUTE(HES)                                       
 02/08/95       264    (H)   HES RPT  2DP 1DNP 3NR                             
 02/08/95       264    (H)   DP: BUNDE, TOOHEY                                 
 02/08/95       264    (H)   DNP: ROBINSON                                     
 02/08/95       264    (H)   NR: ROKEBERG, G.DAVIS, BRICE                      
 02/08/95       264    (H)   8 FISCAL NOTES (DHSS)                             
 02/08/95       264    (H)   ZERO FISCAL NOTE (LAW)                            
 02/08/95       264    (H)   REFERRED TO JUDICIARY                             
 02/23/95              (H)   MINUTE(HES)                                       
 02/23/95              (H)   MINUTE(HES)                                       
 03/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB  38                                                                
 SPONSOR(S): REPRESENTATIVE(S) BUNDE,Toohey                                    
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        30    (H)   PREFILE RELEASED                                  
 01/16/95        30    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        30    (H)   STA, JUD, FIN                                     
 01/20/95       105    (H)   COSPONSOR(S): TOOHEY                              
 02/09/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/09/95              (H)   MINUTE(STA)                                       
 02/10/95       295    (H)   STA RPT  4DP 3NR                                  
 02/10/95       295    (H)   DP: JAMES, PORTER, GREEN, OGAN                    
 02/10/95       295    (H)   NR: ROBINSON, IVAN, WILLIS                        
 02/10/95       295    (H)   FISCAL NOTE (CORR)                                
 03/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HJR  1                                                                
 SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Rokeberg,Brice,Green                   
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        16    (H)   PREFILE RELEASED                                  
 01/16/95        16    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        16    (H)   STATE AFFAIRS, JUDICIARY                          
 01/18/95        73    (H)   COSPONSOR(S): GREEN                               
 02/07/95              (H)   MINUTE(ARR)                                       
 02/14/95              (H)   STA AT 08:00 AM CAPITOL 519                       
 02/14/95              (H)   MINUTE(STA)                                       
 02/23/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/23/95              (H)   MINUTE(STA)                                       
 02/28/95              (H)   STA AT 08:00 AM CAPITOL 102                       
 02/28/95              (H)   MINUTE(STA)                                       
 03/01/95       519    (H)   STA RPT  3DP 2NR                                  
 03/01/95       519    (H)   DP: JAMES, PORTER, GREEN                          
 03/01/95       519    (H)   NR: ROBINSON, WILLIS                              
 03/01/95       520    (H)   FISCAL NOTE (GOV)                                 
 03/01/95       520    (H)   ZERO FISCAL NOTE (LAW)                            
 03/01/95       546    (H)   FINANCE REFERRAL ADDED                            
 03/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 ACTION NARRATIVE                                                              
 TAPE 95-26, SIDE A                                                            
 Number 000                                                                    
 The House Judiciary Standing Committee was called to order at 1:15            
 p.m. on Wednesday, March 8, 1995.  All members were present.                  
 CHAIRMAN BRIAN PORTER stated that the following bills would be                
 heard:  CSHB 13, HB 15, HB 38 and HJR 1.   He announced that CSHB
 13 would be heard first.  The meeting was teleconferenced to                  
 HJUD - 03/08/95                                                               
 CSHB 13 - CAMPAIGN DISCLOSURE REPORTS                                       
 JEFF LOGAN, Legislative Assistant to Representative Joe Green,                
 introduced HB 13.  Sponsor Statement:                                         
 "HB 13 makes it easier for the public to know who is contributing             
 money to non-party candidates for statewide office.                           
 "Problem:  Currently, non-party candidates for legislative office             
 who gain access to the general election ballot by going through the           
 petition or write-in process are not required to file campaign                
 finance disclosure reports during the primary election cycle.                 
 Alaska Public Office Commission Policy Decision 15.13-82-2 sets               
 requirements for these candidates.                                            
 "The Commission has ruled that non-party candidates, groups formed            
 to influence the outcome of ballot issues not appearing on the                
 primary ballot, and political party subdivisions and multi-                   
 candidate PAC's which do not make expenditures to benefit a                   
 candidate on the primary ballot "...need not file either Primary or           
 General Election reports so long as their only activity during                
 those reporting periods is the receipt of contributions or the                
 expenditures of funds for administrative purposes.                            
 "When a campaign-related expenditure is made, the reporting cycle             
 is triggered.  Until that time, the public has no idea who is                 
 contributing money to non-party candidates.                                   
 "Solution:  HB 13 requires prospective non-party candidates for               
 legislative offices to disclose to the public, during the primary             
 election reporting cycle, who is making campaign contributions to             
 Number 240                                                                    
 BROOKE MILES, Juneau Branch Administrator, Alaska Public Offices              
 Commission, Department of Administration,  explained why there was            
 a positive fiscal note, originally.  The existing language in the             
 draft required all individuals who had a letter of intent on file,            
 including people who were going to run for municipal office, to               
 file reports during the primary cycle.  Instead of an estimated 20            
 additional reports, this would generate something like an                     
 additional 300 reports.  There is a zero fiscal note on the State             
 Affairs committee substitute, however.  The Alaska Public Offices             
 Commission supports this legislation.                                         
 REPRESENTATIVE CON BUNDE made a motion to move CSHB 13 (STA) with             
 individual recommendations and the zero fiscal note.                          
 REPRESENTATIVE AL VEZEY objected.  There was a discussion on                  
 existing requirements for filing by nominating petition and by                
 general election ballot.  Representative Vezey then removed his               
 After no further discussion or objection, the bill moved.                     
 HJUD - 03/08/95                                                               
 HB 15 - PUBLIC DISCLOSURE OF MINORS COURT RECORDS                           
 Number 400                                                                    
 REPRESENTATIVE GENE THERRIAULT, bill sponsor, introduced HB 15.               
 Sponsor Statement:                                                            
 "This legislation is intended as an intermediate step in the                  
 juvenile justice system that goes beyond the degree of punishment             
 currently possible, but stops short of prosecution as an adult.  It           
 would allow the State, under certain strict circumstances, to                 
 release the names of juvenile offenders.                                      
 "With varying degrees of exceptions, most states require a court              
 order to release the names of juvenile offenders.  Recently,                  
 however the trend has been toward cracking that confidentiality.              
 In 1993, according to the National Conference of State                        
 Legislatures, Kansas approved a law that allows officials to                  
 publicize the names of juveniles over the age of 13 who are                   
 convicted of certain violent crimes.  In 1990, Rhode Island opened            
 the records of juveniles who are over 15.  In May 1994, Illinois              
 legislators overwhelmingly approved a measure to make public the              
 names of juveniles convicted of crimes involving guns, gangs or               
 felony drug violations.                                                       
 "In Alaska, prior to 1994, the law contained a little-used                    
 provision that allowed publication of the name of a minor who                 
 committed two offenses classified as felonies.  Last year, Senate             
 Bill 54 replaced that provision with one that prohibits disclosure            
 of the name or picture of a minor under the jurisdiction of the               
 court in connection with the minor's status as a delinquent child             
 unless authorized by order of the court.  House Bill 15 would again           
 allow the State to disclose the name, address and picture of a                
 minor following a second felony offense unless the court entered an           
 order barring disclosure "for good cause shown in individual                  
 "The current shield of anonymity and lack of serious penalties                
 foster the perception among many young adults entering the justice            
 system that they can get away with anything.  This reinforces                 
 criminal behavior that continues into adulthood, where the                    
 consequences are far more serious.                                            
 "Tight confidentiality laws have been near the center of America's            
 juvenile justice philosophy for decades.  However, society has                
 changed since juvenile justice systems were created around the turn           
 of the century, and it is time for law enforcement to change as               
 well.  This small step toward lifting the privileged status of a              
 juvenile, when that juvenile has willingly and repeatedly broken              
 the law, is a reasonable step in that direction."                             
 REPRESENTATIVE THERRIAULT agreed wholeheartedly with a comment                
 Governor Knowles made in his "State of the State Address."  In                
 talking about his crime package, he said, with regard to the                  
 crackdown on youth violence,  "We have lost from the 'Leave it to             
 Beaver' era, for thugs from the 'Terminator' age."  We must give              
 police and prosecutors the tools to attack gangs and youth violence           
 and to increase parental accountability.  That is part of what this           
 bill does.  What they are basically trying to do with HB 15, is               
 return a section of statutes that was deleted when SB 54 was passed           
 last year.  He actually took place in the deliberation of that last           
 year, but the way the bill was drafted, the existing language was             
 deleted and replaced by a whole new section.  Rather than having              
 existing language in the bill bracketed, to show what was going               
 out, it was just nullifying these sections, and a number of the               
 members did not, at that time, quite understand what the impact               
 would be.  What we want to do is basically replace that.  The                 
 confusion stemmed from the fact that it was unclear whether it was            
 an agency that controlled the release of the information or the               
 Court System.  What SB 54 did, was break that into two separate               
 sections.  Now you have the agency records, with its rules, and you           
 have the Court record, with its rules.  Specifically with the court           
 records, we are attempting to return to the allowance for                     
 information being released for second felony offenses, unless the             
 court specifically finds just cause not to release the information            
 on a particular case.  The reason for putting it into the court               
 section is that there are confidentiality requirements in the 1972            
 Social Security Act that limit the release of information from the            
 state agency files.  To try and get around that, he asked that it             
 be specifically over on the court side.                                       
 REPRESENTATIVE THERRIAULT added that a number of fiscal notes                 
 indicate that passage of this legislation may jeopardize up to                
 $6,000,000 in federal funds.  He felt these fiscal notes to be in             
 error, and was hoping to have a legal memo from Washington D.C.               
 today that would have clarified that.  What we have found out is              
 that there is a difference of opinion between Region 10 of the                
 federal health and social service agencies and other regions of the           
 nation.  We have asked for clarification.  If in fact, this would             
 jeopardize those funds, there are a number of other states who have           
 already jeopardized their funds and would be on the verge of losing           
 those federal funds.  But that is not so.  Colorado law calls for             
 exactly what we are asking for in HB 15.  There has been no loss of           
 federal funds.  Kansas and Illinois laws are very specific about              
 making information available, and none of these states indicated              
 that there has been any loss of federal funds.                                
 REPRESENTATIVE THERRIAULT continued, saying that the new law we               
 enacted last year said that the name or picture of a minor under              
 the jurisdiction of the court may not be made public in connection            
 with the minor's status as a delinquent child or adult in need of             
 aid, unless authorized by the courts.  It is my understanding that            
 the argument about the potential loss of federal funds is based on            
 release of any information, although our current statute which we             
 just passed says that the courts can make a finding and can release           
 that information.                                                             
 REPRESENTATIVE THERRIAULT was given a memo at this point in the               
 meeting, clarifying what they were discussing.  The memo was                  
 addressed to Richard McConnell, Branch Chief of Region X,                     
 Administration for Children and Families, Seattle.  It was from               
 Carol Williams, at the Associate Commissioner's Office of the                 
 Administration on Children, Youth and Families in Washington D.C.             
 Number 540                                                                    
 CHAIRMAN BRIAN PORTER clarified that we cannot release information            
 that is in their file, but if somehow, totally independently,                 
 another file were started, that would be up to us whether or not we           
 wanted to release it, under state law.                                        
 REPRESENTATIVE THERRIAULT stated that was his interpretation too.             
 In addition, the court system just put out a new fiscal note, with            
 regards to the number of records that would be impacted.  Page 2 of           
 the fiscal note shows that in fiscal year 94, petitions were                  
 submitted to the courts from 65 juveniles whose records would be              
 subject to disclosure.  There is some question about the fiscal               
 impact with regards to the number of records that would be affected           
 by the passage of HB 15.                                                      
 Number 560                                                                    
 MARTHA HOLMBERG, Social Services Program Officer, Division of                 
 Family and Youth Services, Department of Health and Social                    
 Services, said she had not had the opportunity to read what had               
 just been distributed, but she understood that any information                
 given by their division to the court, binds everyone who receives             
 it to confidentiality, so the receiver cannot release the                     
 CHAIRMAN PORTER mentioned that the criminal records we are talking            
 about releasing, are not tied to the programs that they are saying            
 require confidentiality about those program records.  He did not              
 think there was anything in this bill that would indicate a desire            
 to release those.                                                             
 MS. HOLMBERG stated she felt the bill would still impact their                
 federal receipts, because it is not clear that the information                
 would be brought to the public through any vehicle other than the             
 Division of Family and Youth Services.  She thought the Department            
 of Law should be the distributor of the information.                          
 CHAIRMAN PORTER asked her to read the letter from the                         
 Administration for Children and Families, Washington D.C., to see             
 if that would help clear it up for her.                                       
 CHRIS CHRISTENSEN, General Counsel, Judicial Branch, Alaska Court             
 System, reminded committee members, as a matter of policy, the                
 Supreme Court takes no position on legislation, other than                    
 legislation which directly affects the internal operation of the              
 Judicial Branch.  He said he would give the committee an idea of              
 how much it would cost the Court System, and also make some                   
 technical suggestions, but would take no position.  He first                  
 described some basic problems that exist with the court system's              
 juvenile records as they relate to this piece of legislation.                 
 MR. CHRISTENSEN explained that first of all, the members need to              
 understand the limitations of the court's records.  Our records are           
 not computerized, they are purely paper files.  Even the indexes              
 are not computerized, so any information requires a clerk to do a             
 manual index review, and then a manual file review to see what is             
 in the file.  Some of these files are quite thick, even on young              
 kids.  There is no statewide record suppository, or statewide                 
 index.  There are 15 Superior Court locations which do juvenile               
 cases, which means if you want to know something about a particular           
 kid's record, you have to contact all 15 courts, because the court            
 in Anchorage might not have any idea that the kid who had                     
 previously lived in Fairbanks had a record there.  Alternatively,             
 you could contact one court, and that court could contact the other           
 14 courts.  According to statistics provided by DFYS, in FY 94                
 there were only about 65 juveniles whose records would be subject             
 to disclosure by HB 15.  That does not sound like many files.  The            
 problem is, we have a juvenile population, ages 9 through 18, of              
 about 75,000 kids; and there are scores of thousands of young                 
 adults who are only a few years out of that age range.  Now this is           
 actually the potential group about whom records requests can be               
 made by the public.  Statewide, the courts receive about 3,500                
 written requests per year for an adult's criminal record.  We only            
 will accept a written request if the person is out of state or                
 lives in a community other than where the courthouse is located.              
 Far more individuals and businesses perform criminal records                  
 research in person.  In Anchorage alone, for example, roughly 75              
 people a day come in and look through our index, and then ask to              
 see criminal files.  They ask to look for a total of about 500                
 criminal files per day.  If you multiply that times 260 official              
 state work days, that is a lot of file requests.  With adults, the            
 only work the court clerk has to do is run back to the archives and           
 retrieve it for the requester.  With juvenile records, the clerk              
 would have to look through the index, because most of the names in            
 the index are confidential.  The clerk would have to go get the               
 file, and look through it to see what was in it.  Understand that             
 our counter clerks are range eight's, and a range eight clerk is              
 not going to be qualified to actually look through a file and                 
 determine what is in it.  That will have to be handed off to one of           
 the range 12 legal technicians, of which we do not have too many.             
 At that point, the person is going to have to start calling the               
 other 14 courts to determine if there was a first felony conviction           
 someplace else.  This is something that is going to take very long,           
 is very complex, and will have to be done many times, even though             
 there are only going to be 65 kids a year about whom the                      
 information will ultimately be released.                                      
 MR. CHRISTENSEN said there is one way to eliminate our note, and              
 another way that would decrease it by about 90 percent.  To                   
 eliminate it, we would have DFYS administer the program, or else              
 the Department of Public Safety, through the Alaska Public Safety             
 Information Network (APSIN) computer system.  DFYS has a statewide            
 computer.  Of course, it is much cheaper to have a range six clerk            
 type a name into a computer and get a printout with the                       
 information, than to have a range 12 clerk calling all over the               
 state looking for records.  Up until now, we have never placed                
 juvenile's records in APSIN.  This has always been a very                     
 significant issue.  As you know, on July 1 of this year, the adult            
 criminal records in APSIN are going to be made available to the               
 public for the first time.  It would be possible to take this list            
 of 65 kids that is generated each leap year, provide it to the                
 Department of Public Safety, and then anyone with a question could            
 go to them, and they could punch a name into a computer.  This                
 whole issue of where best it should be done, is tied into the loss            
 of federal funds.  He briefly skimmed the memo from the                       
 Administration for Children and Families, in Washington D.C.,                 
 stating that it appears to say that any records we received from              
 DFYS, we cannot release.  All the information we have in our files,           
 we get from DFYS, because they are the prosecuting authority.  They           
 tell us who the kid is, where he lives, what he is accused of                 
 doing, and provide all the backup.  He did not know for sure that             
 the memo would allow us to do what this bill requires.                        
 MR. CHRISTENSEN stated the other way to decrease our fiscal note by           
 95 percent; as the bill is drafted, it can probably be read as to             
 applying retroactively to all of those case files which currently             
 exist.  That is where we have the problem with going back into old            
 files and looking up names.  If we applied this only to kids who              
 were accused of a second felony, from the effective date of the               
 bill on, as each of these 60 files comes into existence, over the             
 next year we would simply take a sheet of paper which has the kid's           
 name and address on it, and what the accusation is, and put it in             
 a ring binder at the front counter; so anyone could look through it           
 to see if a kid they were interested in, was in it.  That would be            
 a relatively inexpensive thing to do.  What he understood the                 
 purpose of this legislation to be was to create an additional                 
 consequence, so that kids will be deterred from committing crimes.            
 We cannot deter kids who have already committed a crime, but we can           
 deter those 65 new kids we are going to generate this year,                   
 MR. CHRISTENSEN noted the bill does have one technical problem.  It           
 requires a judicial determination at the time of filing.  Judges do           
 not look at the case at the time of filing.  They do not look at              
 the case file until the initial arraignment.  An additional problem           
 is, we perceive this as a serious consequence, but, if the judge              
 makes this determination at the time of filing, that is before the            
 kid even has an attorney, or a guardian ad litem, or a parent                 
 involved, the kid has no way to object to this release.  Even                 
 though the bill says the judge is supposed to make a judicial                 
 determination at the time of filing, judges will not do so until              
 the time of arraignment, for legal and practical reasons both.  The           
 bill could be redrafted to simply provide for that, to avoid any              
 confusion in the future.  In each of these 65 cases, the judge is             
 going to have to make a good cause determination as to whether or             
 not the kids should have the files released.  He had talked to Bill           
 Hitchcock, Standing Master in Anchorage, who handles one half of              
 all the juvenile felonies in the state.  Mr. Hitchcock does not               
 expect that to take much time.  For most of these kids, you can               
 probably make that decision in under 15 minutes, just by seeing               
 what they have done before, and what they are accused of now;                 
 therefore costs have not been included in the fiscal note for                 
 additional judicial time to make that determination.                          
 Number 720                                                                    
 REPRESENTATIVE VEZEY felt the bill was too soft on juveniles.                 
 Would it make life easier for the people in the court system to               
 delete all reference under subsection (d)(2)?  This would make any            
 delinquent court record public information.                                   
 MR. CHRISTENSEN said yes and no.  Adult files used to be completely           
 open until the Victims Rights Act was passed about 5 years ago,               
 which made certain parts of adult records closed.  Our costs to               
 implement that, which are not funded, have proven to be about                 
 $120,000 to $150,000 a year of excess clerical time, just to                  
 distinguish between those parts of adult files that are closed, and           
 are open.  The only reason our costs are so low, is because we                
 figured out a sneaky way to get the attorneys to do about 85                  
 percent of the work.  Otherwise, our costs would be too much to               
 imagine.  If juvenile files were essentially open, that would be              
 less expensive than having them partially open and partially                  
 closed.  What you would see, however, is a violation of the                   
 constitutional right to privacy.  This right includes                         
 rehabilitation as a factor that must be considered.  A complete               
 opening of juveniles records would be challenged almost                       
 immediately.  There is a difference between saying the records of             
 a 17 year old serial rapist should be open, versus saying the                 
 records of a nine year old shoplifter should be open.  There is a             
 difference in terms of potential rehabilitation, and right to                 
 privacy.  Clerical costs would be less, but you would be opening up           
 a big can of worms.                                                           
 Number 760                                                                    
 REPRESENTATIVE BUNDE asked if we were putting a bandaid on this               
 problem.  Would it be a cleaner approach to solving the problem if            
 the juvenile services were transferred to the Courts?                         
 Number 775                                                                    
 MR. CHRISTENSEN was told by the folks in Washington D.C., that the            
 reason Alaska has previously been told by Region 10 that they could           
 not make their juvenile records public, like some other states                
 have, is because Alaska is one of a very few states that has the              
 delinquent cases and the "child in need of aid" cases in the same             
 agency.  In most states, they are in two separate agencies, or else           
 one program is administered by the county while the other is                  
 handled by the state.  Because ours are all under the same state              
 agency, we cannot release the records.  The problem with                      
 transferring part of it to the Court System, is that, as a matter             
 of separating powers, you cannot have the prosecuting authority               
 also be the judicial authority.  In many states they make the                 
 separation by putting one part into DFYS, and the other into                  
 REPRESENTATIVE BUNDE said he mis-spoke, he actually meant                     
 Corrections, not the Courts.  While that is a much larger policy              
 call, that would solve the problem of confidentiality.                        
 MR. CHRISTENSEN understood it would, but he had not examined that             
 memo from Washington D.C. in any detail yet.                                  
 Number 800                                                                    
 CHAIRMAN PORTER said it was obvious there were a couple of things             
 they needed to fix in the bill.  He asked Martha Holmberg how the             
 files worked within DFYS.  Would there be one file per child,                 
 regardless of what activity, through your jurisdiction, fell on               
 that child?  Would a child receiving aid who committed a felony,              
 have all of that information in the same physical file?                       
 Number 810                                                                    
 MS. HOLMBERG answered it may not go into the same physical file,              
 but there would be an additional file if there is a petition for              
 adjudication of delinquency.  There would probably be two separate            
 files, but they would probably be combined as the jurisdiction and            
 supervision went to the youth probation section of the division.              
 CHAIRMAN PORTER said the intent of the federal legislation seemed             
 to be to keep the names of juveniles who are receiving this federal           
 aid, confidential.                                                            
 MS. HOLMBERG thought that was correct.  Even though the bill is not           
 specifically asking for information on whether or not a child is              
 receiving aid, by virtue of what the bill is asking for, if the               
 court received the information from the division, the court must              
 abide by confidentiality regulations.                                         
 LAURI OTTO, Deputy Attorney General, Department of Law, Criminal              
 Division, felt this was an unfunded mandate.  This is an area where           
 the federal government has decided on certain policies they want              
 the states to follow in exchange for receiving federal funds.  They           
 are saying if we are giving this kind of federal money to an                  
 agency, you have to have certain confidentiality provisions in                
 place.  The restrictions apply to an agency as a whole, regardless            
 of whether a particular child is receiving funds.                             
 MS. OTTO said the way to solve the problem would be to move                   
 juvenile probation out of DFYS into a completely separate agency.             
 One of the problems with doing that, is that, not surprisingly,               
 there is a very high percentage of children in need of aid who then           
 become juvenile delinquents.  We do not have a system in the                  
 juvenile area with graduated penalties for degrees of offense, like           
 we do for adults.  It is all designed on an individual basis to try           
 to figure out what is best for each child, and so they rely heavily           
 on their information from the "child in need of aid" files.                   
 MS. OTTO continued, stating that as a prosecutor, she had                     
 experienced a great deal of frustration with DFYS, trying to get              
 information from them that she felt was essential to be able to               
 make decisions on how to handle cases on these kids who come into             
 the adult system.  We get the same answer you are hearing here.               
 There are tight restrictions on what you can do.  She felt                    
 Representative Therriault was committed to work through the                   
 problems without jeopardizing the funds.  We are really willing to            
 work with him.                                                                
 TAPE 95-26, SIDE B                                                            
 Number 000                                                                    
 CHAIRMAN PORTER said there has to be a way to construct DFYS                  
 records so that you can keep certain files private, and still be              
 allowed to obtain other information.                                          
 Number 035                                                                    
 REPRESENTATIVE THERRIAULT said when they initially contacted the              
 Department of Corrections, the response was very favorable, then              
 after contacting Region 10, they decided to reconsider.  He would             
 like to try and figure out a way to make this work.  His concern is           
 that we have a system that reinforces juvenile delinquency.  It               
 allows them to commit the same crimes for years, and then we slam             
 them into an adult jail when they reach a certain age.                        
 CHAIRMAN PORTER totally agreed.  Nobody wants to publicize the nine           
 year old shoplifter, but the second time armed robber is                      
 benefitting from the cloak of confidentiality and knows it.  He               
 announced the bill would be held over in order to provide time for            
 HJUD - 03/08/95                                                               
 HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER                             
 Number 275                                                                    
 REPRESENTATIVE BUNDE, sponsor of the bill, described his bill.                
 Sponsor Statement:                                                            
 "HB 38 provides a mandatory 99-year sentence for a specific group             
 of offenders who have two separate prior class A or unclassified              
 felony convictions.                                                           
 "Under this proposed legislation discretionary parole and good time           
 sentence reductions are not available to offenders who are                    
 sentenced to a 99 year term.  However, HB 38 allows those with a              
 99-year sentence to ask the court for a reduction in sentence after           
 they have served 50 years of their sentence.  This provision is               
 similar to what is allowed when a murderer is convicted of a 99-              
 year sentence.                                                                
 "This proposed legislation gives prosecutors some discretion in the           
 decision to pursue the 99-year sentence.  This will avoid unjust              
 results in certain cases where the evidence may be weak.  This                
 provision will also allow the prosecutor some flexibility to                  
 proceed with the normal presumptive sentencing provisions when                
 "There is a cost for keeping a person incarcerated for 99 years.              
 This legislation is crafted to keep the cost to a minimum and save            
 the state money.  Strong punishments can shape behavior and deter             
 crime.  Offenders may find they want to move to a state without a             
 3 strikes statute.  Some offenders may decide the third strike is             
 not worth the rest of their life, and change their behavior.                  
 Additionally, studies have shown that the recidivism rates for                
 three time offenders let back into society are between 65-76                  
 percent.  These offenders are taking up costly time in our judicial           
 system by committing the same crimes again and again.  If the                 
 revolving door is stopped the associated costs will decrease.                 
 "It is time to close the revolving door too many repeat offenders             
 depend upon.  This proposed legislation will make our state a safer           
 place.  I urge your positive consideration of this legislation."              
 Number 380                                                                    
 REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of                  
 Section 6.                                                                    
 JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services,             
 described Section 6.  He said Section 6 is the statutory meat of              
 the bill, where we get started into what the sentence structure               
 will be.  What we are doing is creating another way for people to             
 be sentenced, whose current conviction is their third most serious            
 felony conviction.  "Most serious felony" is defined through                  
 Section 6.  What has to occur to receive this 99-year sentence for            
 this third most serious felony conviction, is that the prosecutors            
 must provide notice that they intend to seek a 99-year sentence.              
 Then if the person is convicted of that crime, and the judges,                
 without discretion, do sentence the person to another sentence,               
 other than this mandatory 99-year sentence; we use those same                 
 exceptions in the murder statute.  There are one or two other                 
 provisions in our standard sentencing provision of 12.55.  Section            
 7 of the bill adds in provisions for how you determine when                   
 something is a previous most serious felony conviction for                    
 establishing that the person has two previous convictions.  This              
 bill, as it progressed last year, was modified so that each of the            
 convictions had to have occurred as part of a separate criminal               
 escapade.  The first two convictions had to have occurred at                  
 different times, and both convictions must have occurred before the           
 current conviction.                                                           
 MR. LUCKHAUPT explained Section 8 of the bill.  In order to work in           
 the language about how we are going to allow someone to challenge             
 these previous convictions, and we have this new term "most serious           
 felony," we basically had to rewrite the section.  It deals with              
 the procedure of how a defendant can challenge these convictions.             
 MR. LUCKHAUPT explained Section 9.  It deals, again with how the              
 defendant is able to challenge the convictions of whether or not              
 one of the previous convictions is a most serious felony                      
 MR. LUCKHAUPT explained Section 10.  It adds a new subsection to              
 clarify when a previous conviction is counted as a previous                   
 conviction.  Last year when we were doing this bill, we discovered            
 that our current statutes are not clear.  In all cases when we are            
 trying to determine when a prior most serious felony conviction or            
 any prior conviction should be counted as a prior conviction.  This           
 was the language we developed with the Department of Law to                   
 clarify, not only the situation presented in this bill, but the               
 situations presented across the board in all of our criminal                  
 sentencing schemes where a previous conviction increases the                  
 MR. LUCKHAUPT explained Section 11.  It is an aggravating factor              
 that can be used for offenses to increase the presumptive term.               
 That is basically a technical change we are making.                           
 MR. LUCKHAUPT explained Section 12.  It defines "most serious                 
 felony."  It means any unclassified or class A felony, which are              
 the crimes that the legislature has determined to be the most                 
 heinous of crimes, and it is only unclassified and class A felonies           
 prescribed under AS 11, under our criminal code, or an attempt, or            
 conspiracy, or criminal solicitation to commit any of those crimes.           
 The attempts, conspiracy, and criminal solicitation to commit a               
 class A felony, are punishable as class B felonies, normally.                 
 MR. LUCKHAUPT explained Section 13.  It provides that, just like              
 with prisoners who are sentenced to 99 years for certain types of             
 murder, they are not eligible for discretionary parole during the             
 entire term.  We mirror that with these 99 year sentences, so that            
 anyone convicted here is not eligible for discretionary parole.               
 REPRESENTATIVE FINKELSTEIN asked about page 7, lines 6 and 7.  It             
 says that prisoners are not eligible for a good time deduction if             
 they have been sentenced to this mandatory sentence.                          
 MR. LUCKHAUPT said last year a decision was made in one of the                
 committees that we are eliminating good time for people receiving             
 99 year sentences for being habitual criminals under this bill.               
 People receiving 99 year sentences for murders in the first degree            
 were eligible for good time, and that did not seem to make much               
 sense that we could not get good time here, but they could get good           
 time under a 99 year sentence in that situation.  The decision was            
 made to eliminate good time for both classes of criminals, and to             
 do that, to avoid this being an ex post facto law, where we are               
 increasing a criminal punishment after the crime has been                     
 committed, and after the person has been sentenced; that we can               
 only eliminate good time for people receiving murder sentences for            
 offenses that are committed after the effective date of this act.             
 So those people with 99 year sentences who committed their offenses           
 before the effective date of this Act would still be eligible for             
 good time, since good time is considered to be a reduction of                 
 sentence, in the federal courts, and most state courts.  The United           
 States Supreme Court has found that good time is a reduction of               
 sentence, so any time the legislature tries to take away good time,           
 or lessen its affect, that represents an unconstitutional ex post             
 facto law.                                                                    
 Number 560                                                                    
 CHAIRMAN PORTER asked about the provision for judicial review at a            
 certain age.                                                                  
 MR. LUCKHAUPT answered that provision is in Section 5.  It was put            
 in when they adopted the mandatory 99 year sentences for certain              
 first degree murders, and it was felt that there should be a way              
 for that sentence to be modified at some point in time.  Section 5            
 of the bill provides that a defendant can file a motion for                   
 sentence reduction after they have served half of the mandatory 99            
 year sentence.  The decision was made in this bill, to match that,            
 and to provide a bit of leniency here, to allow people with a 99              
 year sentence to apply to the court for a sentence reduction.                 
 CHAIRMAN PORTER asked if he would consider Number 3 of Section 6,             
 "...a prisoner for prescribed mandatory term may not otherwise be             
 reduced..."  as inconsistent with that provision?                             
 MR. LUCKHAUPT said not necessarily.  While we actually have not               
 been able to apply that provision to these other 99 year sentences            
 yet, he would not say that it is implicative, since this other                
 subsection is in the same section of the bill.  They are read                 
 together.  In one situation, legislature is saying that you can               
 never reduce the sentence, but we are also providing, in the same             
 section of the bill, a way to do that.  The proper way would be to            
 say, "notwithstanding that provision,"  we can provide for the                
 sentence reduction.  That was not done in 1990, and so it has not             
 been done here.  It may not be entirely necessary to do that.                 
 Basically, this provision would mean nothing if you did not read              
 these two provisions together, to allow something to occur, which,            
 when you look at the rules of statutory construction, the                     
 legislature intends, all of their acts, by enacting this provision            
 to allow a sentence reduction after 49 and 1/2 years.  They enacted           
 that knowing this other section was out there.  You have got a                
 duplicate provision of this language that would apply to those                
 mandated 99 year murder sentences, in statute now.  That was not a            
 problem when we enacted in 1990, and he would not anticipate it to            
 be a problem in this case either.                                             
 CHAIRMAN PORTER said he would like a bill they did not have to                
 argue about.                                                                  
 REPRESENTATIVE BUNDE said some people would observe this as the               
 geriatric provision, for a number of reasons.  Perhaps a 65 or 70             
 year old is no longer a danger to society.                                    
 CHAIRMAN PORTER wanted to make sure they could still use that                 
 REPRESENTATIVE FINKELSTEIN asked, under the presumptive sentencing,           
 which of those are subject to the three judge panel if you are                
 trying to appeal a presumptive sentencing for 99 years for some               
 other crime.  Do we have a three judge panel that applies to all of           
 those?  How do you appeal the existing presumptive sentences?                 
 MS. OTTO, Deputy Attorney General, Criminal Division, answered that           
 right now, if you are subject to a presumptive sentence, and there            
 are no aggravating or mitigating factors, you can ask the court to            
 refer the case to the three judge panel.  That would be for                   
 sentences that fall under the normal presumptive sentencing                   
 statutes.  This is not a normal presumptive sentence, this is a               
 mandatory sentence, as is the other mandatory 99 year sentence, and           
 the three judge panel does not apply to those cases.  This is                 
 taking away judicial discretion to deviate from the sentence that             
 the legislature laid out.                                                     
 REPRESENTATIVE FINKELSTEIN asked if for these kind of life                    
 imprisonments, there was any sort of court standard or expectation            
 of due process for these higher levels of sentencing.  He thought             
 you had to have an appeal route.                                              
 MS. OTTO answered the court usually defers to the legislature in              
 determining the kind and length of sentence that should be imposed.           
 They do their best to put in procedures to make the process                   
 constitutional, so that in imposing a sentence, somebody would have           
 to be given the right to be heard, and would have to be able to be            
 represented by counsel and all of the other procedural protections            
 that we impose, but the legislature has the ability to set a                  
 particular sentence for a particular offense.                                 
 REPRESENTATIVE FINKELSTEIN asked if there had been any court                  
 rulings that say it is a violation of due process, or cruel and               
 unusual punishment if you use presumptive sentencing regardless of            
 the circumstances.                                                            
 MS. OTTO said she knew there were challenges being made to "three             
 strikes and you're out" statutes in other states, based on exactly            
 that argument; but to her knowledge there has been no such ruling             
 in Alaska.                                                                    
 MS. OTTO then gave her testimony, after answering Representative              
 Finkelstein's questions.  She started working in prosecution in               
 1978, she has been an assistant district attorney, district                   
 attorney, and chief prosecutor.  She has testified before the                 
 legislature on behalf of the Department of Law for many years in              
 favor of prosecution legislation.  She now supervises the district            
 attorney's offices in the state.  She has been described by some              
 people as never having met a tough criminal bill that she did not             
 like.  She believes strongly in protecting the public through tough           
 criminal legislation.  She felt this bill was rational in that it             
 narrowly targets the kind of offenders that really are getting long           
 sentences.  It is clear that Representative Bunde has put a lot of            
 work into the language.  She was frustrated with the bill, however,           
 and she had been working on it for a couple of days.  The                     
 Legislature has before it a supplemental for the Department of                
 Corrections to make it possible for them to keep the people who are           
 in custody now, incarcerated.  The amount of cuts that are being              
 made to the Department of Corrections are such that what we are               
 talking about right now, is letting every single misdemeanant out,            
 and not incarcerating anybody else who is being sentenced for a               
 misdemeanor for the rest of the fiscal year, because we do not have           
 the money to keep facilities open, to keep them in jail.  So she              
 has been trying to figure out the legal process that we need to go            
 through to have that happen.  She is very bothered by this.  She              
 thinks they have laws like DWI and domestic violence, all the                 
 misdemeanor crimes that we have, for a reason.  She thinks people             
 need to go to jail for those.  She thinks people need to stay in              
 jail for those.  If you do not have penalties for people when they            
 are committing minor crimes, you have people cycling out of                   
 control, and they think they can get away with things, and that               
 there will not be any penalty.  The reality is, unless the                    
 legislature appropriates the money that is necessary to keep these            
 very expensive correctional facilities operating, we cannot put               
 people in jail, or keep them in jail.                                         
 REPRESENTATIVE BUNDE observed that last year in another body he was           
 asked if he was personally willing to pay taxes to support a bill             
 like this, and he certainly is.  We are talking about hardened                
 criminals, and a lot of Ms. Otto's frustration comes from the                 
 incarceration of people who are not going to fall into that                   
 category.  Before we need to build more prisons, the public has to            
 perceive the need, before they support building prisons.  He is               
 talking about 5 or 6 hard core, habitual criminals that are not               
 going to overwhelm the correction system the way we are being                 
 overwhelmed by these misdemeanants, who are in a different                    
 CHAIRMAN PORTER noted it was not his intention to pass the bill out           
 of committee that day.                                                        
 Number 830                                                                    
 RANDALL BURNS, Executive Director, Alaska Civil Liberties Union,              
 testified via teleconference from Anchorage.  He disagreed with the           
 schematics of the bill and the belief that his bill really does not           
 have a fiscal note in the near future.  There was a story in the              
 Anchorage Daily News this morning, noting one of the clear impacts            
 of this bill, is in fact, a financial one.  The decision will be              
 made for a future strike (felony) not to plead to them anymore.  He           
 thought they should look at the history of the jurisdiction, of               
 what has been happening to the court system as a result of the                
 decision to adopt what is called "three strikes" or "habitual"                
 legislation.  The point is, felons are simply not pleading out to             
 those anymore, but are insisting on going to trial.  That costs               
 more money.  The question you have to ask is whether or not that              
 makes any sense.  For instance, research gives us information about           
 the death penalty bill, which you have obviously been privy to in             
 this committee in years past.  It has shown us that our judges are            
 presently giving first degree murderers significant penalties.                
 What good does it do to have mandatory sentences, when the average            
 sentence imposed for first degree murder ranges between 62 and 87             
 years?  One of the issues is that there is not really a significant           
 need for this bill.  He felt our current statutes already had                 
 significant protections.                                                      
 TAPE 95-27, SIDE A                                                            
 Number 000                                                                    
 MR. BURNS continued, disagreeing with the geriatric provision.  For           
 humanitarian reasons alone, if a prisoner is subject to cancer, and           
 dying, they should not have to die in prison.  He also felt this              
 legislation was increasing the danger to law enforcement officials            
 in Washington State.  Criminals would rather go out in a shoot out,           
 than be arrested, knowing they will spend the rest of their life in           
 jail.  He felt that a mandatory life sentence was cruel and unusual           
 punishment.  He believes in the reformation aspect of the State of            
 Alaska Constitution.                                                          
 Number 120                                                                    
 BARBARA BRINK, Deputy Director, Public Defender Agency, testified             
 via teleconference from Anchorage.  She felt the fiscal impact to             
 the state would be noticed immediately, since this changes the                
 sentence for people who are now serving a 10 year sentence, to a              
 life in prison sentence.  She felt the cost of convicting someone             
 would be substantial, as it would require proving the                         
 constitutionality of each prior conviction, some of which may have            
 occurred in other states, which would in turn, require travel.  The           
 prior strike would have to be shown to be a felony in the State of            
 Alaska.  It would have to be a constitutionally valid plea.  That             
 person would have to have had competent counsel, and if there is              
 any differing procedure in the other state, that has to be                    
 accounted for as well.  Thousands of man hours would be involved              
 there.  Any person in this category would be more likely to go to             
 trial, rather than plea to the charge.  Currently, 94 percent of              
 felony cases here in Alaska do not go to trial.  They are resolved            
 with plea bargains, pleas to the charges, dismissals, and                     
 negotiations.  You would be turning a simple trial into a                     
 complicated drain on the Alaska Court System, the Public Defender's           
 Office and the District Attorney's office.                                    
 MS. BRINK felt HB 38 was targeting the wrong age group.  The rate             
 of crime for older people is decreasing, while the crime rate among           
 juveniles and younger adults has risen.  She said that every hour             
 we spend locking up old people, is an hour we cannot spend                    
 REPRESENTATIVE BUNDE spoke to the concern over crowding our courts.           
 He guessed we could uncrowd our courts if we just stop arresting              
 people, but that is not the purpose.  This may indeed cause more              
 work for courts, but one of the problems is the lack of public                
 confidence in this judicial system at this point.  Many people have           
 told him how uncomfortable they are with the discretion judges                
 have.  He read an article about how judges use their romantic                 
 notions to try to rewrite our laws.  He felt that if a person was             
 not rehabilitated after 20 years in prison, they most likely will             
 never be.                                                                     
 Number 420                                                                    
 CHAIRMAN PORTER explained that in his experience, he has asked                
 criminals if they realized how close they actually were to spending           
 the rest of their lives in jail, and in some instances, they                  
 actually did make a turn, and changed their behavior.  That is an             
 element that can be used when you have this kind of crime on the              
 books.  It is an expensive one, and we should try to craft this               
 legislation in the least expensive, most effective way we can.  Our           
 legal counsel will be working with the bill sponsor over the next             
 few days to try to put them in.  One change that was mentioned was            
 the clarifying language on page 4, section (b) which begins on line           
 26.  It could be misinterpretted, and he would like to have a bill            
 that does not ask more questions than it answers.  There will be              
 suggestions on other sections too.  He ended the discussion on HB
 38 for further consideration and changes.                                     
 HJUD - 03/08/95                                                               
 He then opened discussion on HJR 1 for the purpose of continuing it           
 on Friday.                                                                    
 The House Judiciary Committee adjourned at 3:10 p.m.                          

Document Name Date/Time Subjects