Legislature(1995 - 1996)
04/12/1995 01:17 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 12, 1995 1:17 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Al Vezey Representative Bettye Davis Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT None COMMITTEE CALENDAR * HB 255: "An Act creating the crime of negligent vehicular homicide." HEARD AND HELD HJR 30: Relating to an amendment to the Constitution of the United States prohibiting federal courts from ordering a state or a political subdivision of a state to increase or impose taxes." PASSED OUT OF COMMITTEE HB 2: "An Act allowing courts to require certain offenders as a special condition of probation to complete a boot camp program provided by the Department of Corrections; making prisoners who complete the boot camp program eligible for discretionary parole; providing for incarceration of certain nonviolent offenders in boot camps operated by the Department of Corrections; allowing the Department of Corrections to contract with a person for an alternative boot camp program; creating the Boot Camp Advisory Board in the Department of Corrections; and providing for an effective date." PASSED OUT OF COMMITTEE HB 274: "An Act relating to the state's tuberculosis control program; and providing for an effective date." PASSED OUT OF COMMITTEE (* First public hearing) WITNESS REGISTER REPRESENTATIVE SCOTT OGAN Alaska State Legislature State Capitol Building, Room 208 Juneau, AK 99801-1182 Telephone: (907) 465-2689 POSITION STATEMENT: Sponsor HB 255 MARK CAMPBELL P.O. Box 3075 Palmer, AK 99645 Telephone: (907) 745-2256 POSITION STATEMENT: Testified in support of HB 255 SCOTT RICHARDSON P.O. Box 2025 Palmer, AK 99645 Telephone: (907) 745-2256 POSITION STATEMENT: Testified in support of HB 255 VALERIE LEMON P.O. Box 870441 Wasilla, AK 99687 Telephone: (907) 373-1441 POSITION STATEMENT: Testified in support of HB 255 FLO LEMON P.O. Box 870441 Wasilla, AK 99687 Telephone: (907) 373-1441 POSITION STATEMENT: Testified in support of HB 255 MARGOT KNUTH, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified against HB 255 REPRESENTATIVE ED WILLIS Alaska State Legislature State Capitol Building, Room 400 Juneau, AK 99801-1182 Telephone: (907) 465-2199 POSITION STATEMENT: Bill Sponsor HB 2 JERRY SHRINER, Special Assistant to the Commissioner Department of Corrections 240 Main Street, Suite 700 Juneau, AK 99801 Telephone: (907) 465-4640 POSITION STATEMENT: Spoke in favor of HB 2 DR. PETER NAKAMURA, Director Division of Public Health Department of Health and Social Services P.O. Box 110610 Juneau, AK 99811-0610 Telephone: (907) 465-3090 POSITION STATEMENT: Spoke in favor of House Bill 274 KRISTEN BOMENGEN, Assistant Attorney General Attorney General's Office Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Spoke in favor of House Bill 274 PREVIOUS ACTION BILL: HB 255 SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE SPONSOR(S): REPRESENTATIVE(S) OGAN,Kohring,Bunde JRN-DATE JRN-PG ACTION 03/15/95 742 (H) READ THE FIRST TIME - REFERRAL(S) 03/15/95 742 (H) JUDICIARY, FINANCE 04/05/95 1039 (H) COSPONSOR(S): KOHRING, BUNDE 04/12/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HJR 30 SHORT TITLE: AMEND US CONSTIT. TO LIMIT FED. COURTS SPONSOR(S): REPRESENTATIVE(S) VEZEY,Toohey JRN-DATE JRN-PG ACTION 02/08/95 271 (H) READ THE FIRST TIME - REFERRAL(S) 02/08/95 271 (H) WTR, JUD 03/21/95 (H) WTR AT 05:00 PM CAPITOL 203 03/21/95 (H) MINUTE(WTR) 03/22/95 848 (H) WTR RPT 3DP 1NR 03/22/95 848 (H) DP: MULDER, PHILLIPS, BARNES 03/22/95 848 (H) NR: KUBINA 03/22/95 848 (H) ZERO FISCAL NOTE (H WTR) 04/12/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 2 SHORT TITLE: BOOT CAMP FOR NONVIOLENT OFFENDERS SPONSOR(S): REPRESENTATIVE(S) WILLIS,Rokeberg JRN-DATE JRN-PG ACTION 01/06/95 20 (H) PREFILE RELEASED 01/16/95 21 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 21 (H) STA, JUD, FIN 03/07/95 (H) STA AT 08:00 AM CAPITOL 102 03/07/95 (H) MINUTE(STA) 03/14/95 (H) STA AT 08:00 AM CAPITOL 102 03/14/95 (H) MINUTE(STA) 03/21/95 (H) STA AT 08:00 AM CAPITOL 102 03/21/95 (H) MINUTE(STA) 03/23/95 (H) STA AT 08:00 AM CAPITOL 102 03/23/95 (H) MINUTE(STA) 03/24/95 886 (H) STA RPT CS(STA) NEW TITLE 2DP 5NR 03/24/95 887 (H) DP: ROBINSON, WILLIS 03/24/95 887 (H) NR: JAMES,PORTER,GREEN,IVAN,OGAN 03/24/95 887 (H) FISCAL NOTE (CORR) 03/24/95 887 (H) 4 ZERO FNS (LAW,ADM,COURT,DPS) 04/12/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 274 SHORT TITLE: TUBERCULOSIS CONTROL SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 03/22/95 852 (H) READ THE FIRST TIME - REFERRAL(S) 03/22/95 853 (H) HES, JUDICIARY 03/22/95 853 (H) 4 ZERO FNS (2-ADM, LAW, DHSS) 3/22/95 03/22/95 853 (H) GOVERNOR'S TRANSMITTAL LETTER 03/28/95 (H) HES AT 02:00 PM CAPITOL 106 03/28/95 (H) MINUTE(HES) 03/29/95 977 (H) HES RPT 3DP 1NR 2AM 03/29/95 977 (H) DP: G.DAVIS, TOOHEY, VEZEY 03/29/95 977 (H) NR: BRICE 03/29/95 977 (H) AM: ROKEBERG, ROBINSON 03/29/95 977 (H) 4 ZERO FNS (2-ADM, LAW, DHSS) 3/22/95 04/12/95 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 95-45, SIDE A Number 000 CHAIRMAN BRIAN PORTER called the House Judiciary Standing Committee to order at 1:17 p.m. on Wednesday, April 12, 1995. Members present were Representative Con Bunde, Representative Al Vezey and Chairman Brian Porter. The remaining committee members, Vice Chair Joe Green, Representative Cynthia Toohey, Representative David Finkelstein, and Representative Bettye Davis arrived to provide a quorum. Chairman Porter stated there were four bills for consideration on this date. He asked Representative Ogan to introduce his bill, HB 255. HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE REPRESENTATIVE SCOTT OGAN, sponsor of HB 255, stated this bill is an act that creates a crime of negligent vehicular homicide. The bill is designed to fill an existing gap in Alaska's criminal code. Representative Ogan said, "Unfortunately, it has taken the several lives to illustrate the need for this legislation." REPRESENTATIVE OGAN said that under current Alaska law a person who commits a traffic infraction, such as passing in a no-passing zone, or running a red light, and is not under the influence of some drug, alcohol, or isn't acting in an extremely negligent way like running red lights at a high rate of speed...at this point, if they run a red light and kill someone, they get a traffic ticket. Representative Ogan said he didn't feel this was appropriate. He said his dad told him, when he was growing up, that when he got behind the wheel of a car it was a 2-ton missile. He stated that a car is a potential deadly weapon and when there is a disregard for traffic laws, and when it results in a death, he feels that something more than a $50 fine, or a minimal slap on the wrist, is more appropriate. Representative Ogan asked for any questions the committee might have. CHAIRMAN PORTER stated there were two people on teleconference and three people in the audience to testify. He asked if there were any questions of the sponsor. REPRESENTATIVE CON BUNDE noted he did not find a fiscal note and asked if that was an oversight. Number 085 REPRESENTATIVE OGAN answered that there was an assumption it came from another committee, but a fiscal note was requested and he anticipates receiving it shortly. CHAIRMAN PORTER asked if there was someone from the Department of Law who could shed some light on that. CHAIRMAN PORTER asked for Mr. Mark Campbell, on teleconference in Mat-Su, to testify. MARK CAMPBELL via teleconference in Mat-Su, testified in support of this bill and asked committee members to support it as well. He stated his reason for supporting HB 255 is through personal experience of recently losing his 19-year-old son through a negligent driver. Mr. Campbell said his son's friend and four other teens were injured. He stated that it was his experience that just a simple traffic violation, a maximum of a $300 fine, and ten minutes in traffic court sends an entirely wrong message to the community and to other teens. Mr. Campbell said, "In this case the offender was an 18-year-old driver." He said he and his wife regret there is not more in state law that can be done. MR. CAMPBELL said in working with the District Attorney (DA) and the troopers, he and his wife were surprised there is nothing beyond just traffic court. He related he and his wife are not suing the young man. They don't desire that his life should be ruined. It was negligence on his part and they wish that he had acted more responsibly, but that was not the case. Mr. Campbell just regretted there was not at least an opportunity for his license to be taken. He said he saw the same young man just a month later as the young man sped through an intersection, which caught he and his wife's attention. He was surprised to see the same young man and he got a hold of him and spoke to him about it, and spoke to his parents about it. He said he would just like to see that there is more (indisc.) or a law which gives more incentive in a situation such as this. Mr. Campbell said the person who had caused the accident was just graduating and he thinks it sends an entirely wrong message to all high school kids that there are no real consequences for that type of negligence. Mr. Campbell stated, "In our case, it was basically a $300 fine and ten minutes in traffic court, and that's for two deaths and four injuries." He went on to say he would like to see new legislation that would do more and offer more in this case. Number 200 REPRESENTATIVE AL VEZEY asked Mr. Campbell why he thinks the state should take action when he declined to sue this individual in court. He said it seems a little contradictory there. MR. CAMPBELL replied he simply thought there should be a loss of license for a period of time, perhaps just to put it in a more serious situation, to face up to the responsibility of what can be done. He said, "I understand there is civil action you can take. The reality of that is simply that you would spend your time and energies in a situation where, when you lose your 19-year-old son, or, in our case, I'm not limiting it to that. I'm sure the pain is the same for anybody who has lost a loved one due to an accident like this. Their pain would be the same." Mr. Campbell went on to say, "Pursuing a civil matter, you don't have the opportunity to put it to rest, to lay it aside." He stated he and his wife did not want to live their lives hounding and pursuing maybe a civil judgment. He pointed out you would have to track this young man for the rest of his life, and they chose not to do that. He said they did not want their lives to become embittered or unresolved in this matter. They did not want his life to be that way as well; however, he thinks there is still too little that can be done. Number 245 REPRESENTATIVE VEZEY said he believes Mr. Campbell's testimony was that he thought it was be appropriate in cases of this nature, if an individual were to lose their license. He asked if Mr. Campbell had not testified to that effect. MR. CAMPBELL answered, "I certainly think there should be something that, when you cause a death, and it is negligence on your part, I think that should be an absolute first thing that happens." He said in their situation, they certainly saw the message being sent to so many other teenagers there is no action being taken. REPRESENTATIVE VEZEY said the reason he asked that question is there is not a provision in this bill for revocation of license. There is no change in that regard. He pointed out this bill provides for making negligent vehicle homicide a misdemeanor, which carries jail time, but does not carry the revocation of driving license privileges. MR. CAMPBELL replied, "Again, if the judge had a little bit more leeway to do something, and if the judge chose to, instead of imposing jail term, it could be moderated with a driver's license revocation. In fact, a jail term might be needed in some situations." He believes it gives greater recourse than a simple traffic violation would. Mr. Campbell related they had to track down the action that was being taken, and finally found it was in traffic court. He said he and Mrs. Campbell requested to speak at the time because nothing was being done at all. He said he was able to talk to the judge and request at least the $300 fine, or perhaps community service in some area that would bring it home. He stated he suggested ambulance service or that type of thing. The judge gave that, but it was the maximum he was able to do. But that was only traffic court. CHAIRMAN PORTER said they were checking right now to see whether this bill would give the court the option of suspending. He saw the Department of Law people shaking their heads and said the committee might want to make an addition to this bill. Chairman Porter asked for Scott Richardson to testify via teleconference. Number 300 SCOTT RICHARDSON, testifying via teleconference from Mat-Su, stated his son was also killed in the same accident as Mr. Campbell's son. The boys were good friends. He said when they found out the maximum penalty for reckless or negligent driving which resulted in a death was a traffic ticket and a $300 fine, he and his wife were dismayed. Mr. Richardson related that in talking to the DA, and eventually, the traffic court judge, they said in most states, there is a misdemeanor charge for this kind of thing. He said there are three levels: A traffic ticket; a misdemeanor; and a felony. In Alaska there is only a traffic ticket and a felony, no middle ground. He went on to say, "It's extremely difficult to have a felony charge, or vehicular homicide situation. You have to have the person be drunk, or on drugs, or some extreme kind of thing which, from the DA's example he shared with them, there were a number of situations where the DA felt it should be convicted as a felony, but there just wasn't enough evidence." Mr. Richardson said it was very difficult to get that felony, and he believes there should be a medium punishment because the punishment should fit the crime. He said, "It was a dangerous and snowy day and his recklessness resulted in the death of our son. What does that say to society? We just give him a traffic ticket and a $300 fine. We're just sending the wrong message." Mr. Richardson said the judge and the DA both agreed. The judge said a misdemeanor or felony charge would give a little more room to decide what he thought was appropriate in these situations. Mr. Richardson feels there is a gap in Alaska law that needs to be filled. Number 370 REPRESENTATIVE BUNDE thanked both gentlemen for testifying, knowing it was very difficult for them, and hopefully, some progress in this area of legislation will add to the healing process. Number 375 CHAIRMAN PORTER added that he had a requirement in his life to deal with these kinds of situations on a professional level, and for what it's worth, the approach expressed by Mr. Campbell, in terms of trying to bring the matter to closure, is the best attitude to take and he commends Mr. Campbell for having the ability to take it. Chairman Porter then asked Valerie Lemon to speak. Number 390 VALERIE LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau. She stated she was involved in a car accident in November 1991 and her sister, Lori, was killed and Valerie was badly injured and they didn't know if she would live. She said, "My brother was driving the car and he got a skull fracture. The lady who ran the red light hit Lori in the side of the car where she was sitting, and I was in the back." She related she used to be an excellent figure skater when she was 8-years-old, and now she can't do it because of the car accident and she is upset that all the lady got was a $50 ticket. Miss Lemon said, "This is Lorian the teacher of this, the day that she died, called `I remember Lorian.' Her long hair. Her beautiful smile. Her wonderful laugh. Her (indisc.). Her graceful skating. Her ability to make me feel as good as a person and a teacher. I will never forget my last memory of Lorian picking up all the flowers her father sent for her birthday, that shy smile as she opened up her card, not knowing who they were from, and then the widest, most beautiful smile when she knew. It's the one memory I will always cherish." Miss Lemon showed a picture of Lorian that her dad had taken. CHAIRMAN PORTER thanked Miss Lemon and complimented her on her testimony. He then called on Valerie's mother, Mrs. Lemon. Number 500 FLO LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau. Ms. Lemon stated, "Almost three and one-half years ago, at the intersection of Muldoon and Northern Lights, three of my four children were involved in an automobile accident. Lorian, who had just turned 11 the day before, was killed instantly. Valerie was injured very critically, and my 17-year-old son, who was driving, was also injured." Ms. Lemon went on to say that the lady who had run the red light and hit her children's car was not drunk, not on drugs; just in a hurry to get to work. She said the woman was not paying attention and didn't see the light turn red. Ms. Lemon said there is something wrong with a system that allows a $50 fine for killing someone while breaking a traffic law such as running a red light. She related that Valerie, in her testimony, had hardly touched the surface of what she's been through and has yet to go through. MS. LEMON stated: "I want the laws to change." She feels that people need to be responsible for their own actions. She pointed out that no matter what the size of a car it can be a dangerous weapon if you are negligent. She asked the committee to please help pass this bill to protect others from going through what her family and friends have gone through. She related: "If you've ever had a telephone call at work, it's a parent's nightmare." Ms. Lemon said when she got the phone call she only knew her son was involved and had no idea her two girls were involved in this accident. Ms. Lemon said, "It is the worst thing when you see, at a hospital, all these blue uniforms coming to you, and I hope to God that not any one of you will have this happen to you." She continued, "I hope this law gets passed because I think it was something that was needless. It was a very violent death and it was not necessary." CHAIRMAN PORTER asked if anyone else would like to give testimony on HB 255. MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, said she "very much feels for the losses heard about in the committee meeting. If there were a way that our laws could make people whole in these situations, truly, we would want that to happen." She stated that her points today are fairly technical legal points and wouldn't expect any of the people heard, who have suffered, to really be able to appreciate this perspective and so she apologized to them. She said she "by no means wants to belittle the circumstances they have gone through." MS. KNUTH related the problem from a legal perspective, there is the crime already called "criminally negligent homicide," which is virtually identical to the crime being proposed. It is a Class C felony and if negligent vehicular homicide became a crime, it would become a lesser included offense of criminally negligent homicide. A lesser included offense means that in every case that went to trial, the jury would have a right to hear about this other lesser offense, and juries frequently take advantage of lesser included offenses. It's a way of sort of "splitting the baby" and pleasing both the prosecution and the defense. She said, they know if there was an offense such as this, they would lose virtually every criminally negligent homicide case that they got. The jury would reduce it to negligent vehicular homicide and it would be a misdemeanor offense. MS. KNUTH stated the difference between the two is two words. She asked the committee to look at the bill on page 1, line 13: For criminally negligent homicide it is, instead of "perceiving an unjustifiable risk," it's "perceiving a substantial and unjustifiable risk." And on line 14, instead of "constituting a deviation from the standard of care," criminally negligent homicide "constitutes a gross deviation from the standard of care." She said it is very unlikely that a jury would be able to tell the difference between an unjustifiable risk and what is a substantial and unjustifiable risk, and what is a deviation from the standard of care, and what is a gross deviation from the standard of care? She added that these are concepts that are difficult enough to explain to a jury. MS. KNUTH noted two things: "If you were seeking to revoke a person's driving license with this new offense, you would need to also amend AS 28.15.181." She then listed the types of convictions that are grounds for the revocation of driver's licenses: Manslaughter or negligence resulting from driving a motor vehicle. She stated the committee would need to add "negligent vehicular homicide" to that list. There is a Class A misdemeanor driving offense right now of reckless driving, that is 28.35.040. She said there is something for criminally negligent homicide and negligent driving. There are only certain circumstances when it applies and it apparently was not applicable in the running the red light situations described here today. MS. KNUTH said traditionally, criminal law has stopped with criminal conduct and that is what criminally negligent homicide is, the lowest form of criminal behavior the law is taking action against. Anything less than that is civil negligence. She stated to make criminal negligence a crime is entering an area not entered before. Ms. Knuth said society's answer is civil liability for civil negligence. She agreed all of the problems described by Mr. Campbell are very real and they do prolong the entire experience and it may not be economically, or in any way rewarding to do it, but that is the remedy that Alaska law specifies for civil negligence. MS. KNUTH also noted if a conviction is obtained in a criminal case, that creates almost a per se judgment in a civil case. There is no need to go through and reprove the civil case. She said it could be anticipated there would be a number of people who want these civil negligence cases prosecuted because if there is a conviction they could use it for their liability cases. Ms. Knuth stated the way the traffic system is set up, licenses can be revoked if a person accrues more than a certain number of points in a limited period of time. She said the types of driving violations described in the hearing don't involve enough points to lose a license on just the one incident, but other bad driving resulting in point offenses, that would result in license revocation. She asked if she could answer any questions. Number 620 REPRESENTATIVE DAVID FINKELSTEIN commented that this is a complicated area. He asked Ms. Knuth to tell him a little more about the reckless driving, and what it takes to get into that category, and the reference numbers. Number 630 MS. KNUTH responded it's 28.35.040, and it says "A person who drives a motor vehicle in a manner that creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it, or failure to perceive it, constitutes a gross deviation from the standard of conduct that a reasonable person would observe in this situation." REPRESENTATIVE FINKELSTEIN said it didn't sound much different than the standard for the Class C felony of criminally negligent homicide. It still has `gross deviation.' MS. KNUTH agreed and said to a certain extent, the criminally negligent homicide is reckless driving that results in death. REPRESENTATIVE FINKELSTEIN brought up the fact that once the things get on the books, they get subsumed under another category when the jury is given its choices. He asked what the terminology was. MS. KNUTH said, "the lesser included offense." REPRESENTATIVE FINKELSTEIN asked why, since it doesn't require a death, why wouldn't that be a lesser degree when someone is up for charges on negligent homicide? MS. KNUTH answered that in that situation, the lesser included offense would require the jury to find that nobody died as a result of the accident. If that was the finding, the reckless driving would be a lesser included offense. Number 650 REPRESENTATIVE BUNDE said he, too, was appalled that these things happen and just end up in traffic court. He asked Ms. Knuth to speculate why they'd end up with a $50 traffic ticket instead of these other tools that could have been used. Number 675 MS. KNUTH replied that sometimes accidents happen and sometimes they are fatal. And it wasn't a crime. It was certainly tragic and nothing anyone would desire, but in these circumstances it was related the driver wasn't intoxicated or on drugs. It was simply a failure to pay sufficient attention, or inability to stop in time. She stated that culpability is measured more by the person's conduct than what happens as a result of that conduct. Ms. Knuth agrees the results in these cases were awful, but in terms of how culpable was the driver, there are times when these situations happen and it doesn't go beyond the level of negligence. REPRESENTATIVE BUNDE said from his point of view, part of the laws should also involve some societal condemnation, and when there is a death involved that need seems to elevate for him. Representative Bunde asked Ms. Knuth about her testimony on revocation of licenses. When there is an accident where it involves a loss of life, would she see a problem with increasing to points to this type of accident? Number 690 MS. KNUTH responded she thinks the point schedule is developed through the Department of Motor Vehicles and regulations, and that is something they could probably look at. She assumed there are points given for negligent driving and may have been charged in these cases. REPRESENTATIVE VEZEY said his recollection that reckless driving carried a variable penalty of 6 to 12 points, at the discretion of the judge, but he could be wrong. MS. KNUTH said she thought that was accurate. She saw that reckless driving is basis for license revocation, but does not see negligent driving on that list. She said it may be it is not there and the reason the action might not have been taken. CHAIRMAN PORTER stated that at some point he thought they dropped "negligent" for "careless." They have just gone from reckless to careless. Number 715 REPRESENTATIVE CYNTHIA TOOHEY asked Ms. Knuth if the rules on the book now are the maximum? She asked, "If you had your druthers, would you take this piece of legislation and superimpose it onto the one we have now?" Number 720 MS. KNUTH answered she would not because she feels there is a need for a felony vehicular homicide law, and there are people who need to be on probation who have caused loss of life. She stated her concern is if this misdemeanor offense is created that all of those felony people are going to get advantage from that. She said as a matter of philosophy, she thinks criminal law should be restricted to criminal conduct. If it is just a civil negligence in the conduct then it should be restricted to civil penalties, except for the traffic matter, which is sort of a parallel matter that is going on. Number 735 REPRESENTATIVE VEZEY said he thinks there is some real problem with the law, and there have been a lot of "gyrations" the last six or eight years over mandatory insurance and he believes the standard right now is minimum insurance requirement liability insurance is $100,000? He asked, "That is maximum per occurrence isn't it?" MS. KNUTH said she would have to look it up. REPRESENTATIVE VEZEY stated he does believe that is a serious weakness in the law. He felt that figure is too low. Representative Vezey feels this area of minimum insurance requirements should be addressed. He stated if this requirement is raised there would be some people who will be assessed an insurance premium that will be prohibitive to them economically; therefore, they will not be able to satisfy the Department of Motor Vehicles requirements to get a license. This would amount to economic revocation of their driver's license. Representative Vezey said he saw nothing wrong with denying them a license if they can't afford the risk. This is an approach he would like to see the committee pursue. He pointed out you would not be using either civil, or traffic, or criminal courts to pursue a remedy. This would allow the statute to work through the marketplace. Number 771 REPRESENTATIVE FINKELSTEIN said he was trying to assess this category. He asked if Ms. Knuth would try to help him understand the kinds of crimes, under the criminally negligent homicide category, cases that end up in here? He asked if they were mostly drunk driving? MS. KNUTH answered that was correct. REPRESENTATIVE FINKELSTEIN asked if there were others that make up a significant portion of those? Number 773 MS. KNUTH said she didn't know, as she is not familiar enough with the prosecution of these cases. REPRESENTATIVE FINKELSTEIN brought up two more things that might deserve investigation. They are to try to figure something that at least gets into the issue of driver license revocation, perhaps through the point system. Number 780 REPRESENTATIVE JOE GREEN asked Ms. Knuth if a person were to use a gun negligently with no criminal intent, and it discharges and kills someone, are there laws on the books to cover that, or is that also just a minor problem? Number 785 MS. KNUTH answered it is not a minor problem, but not necessarily a criminal matter. She related there are circumstances where kids are involved in shooting accidents and it is negligence. There is no prosecution if it is just negligence. She stated the people involved in these circumstances pay a much greater toll for what they have done, just from having to live with themselves, than anything that could be done to them through the criminal system. Ms. Knuth said she has never seen anyone who accidentally caused the death of someone else who was blase' about it. She said that what could be done through the criminal system pales compared to what they do to themselves. Number 805 REPRESENTATIVE GREEN said he could appreciate what Ms. Knuth was saying, but after the fact, is there some way this can be addressed, if it is not criminal, that there could be something done to the civil laws then that would bring this awareness before the fact. He pointed out that getting a driver's license is a simple thing and we get so blase' about driving a car without realizing it's a killing machine. Representative Green asked where something could be done in the civil side that would be a deterrent. MS. KNUTH said that traditionally, extending the civil court and just the fear of being bankrupted through civil judgment would be a deterrent. Number 820 REPRESENTATIVE VEZEY said he has always been confused on this area of the law, but if the matter was covered by insurance he said he believes you fundamentally have a choice to either go after the plaintiff's assets or the insurance. MS. KNUTH answered, "You go for all of it." She said usually people settle for the insurance because those are the easy dollars. She gave the following example: "You have a $2 million judgment and the insurance is good for $500,000; you can put a lien on the home, good for another $200,000; then you hit their permanent fund dividends for the next however many years." REPRESENTATIVE VEZEY stated he was sure she was right, but the fiduciary guideline is to carry enough insurance to cover your assets, not your assets plus 100 percent. He pointed out you don't sue the insurance company. You sue the party who has insurance. Representative Vezey recognized that if the insurance didn't pay, your other assets would be exposed. MS. KNUTH said that's right, if you had them. Number 845 REPRESENTATIVE TOOHEY wanted everyone to understand why this bill would not work. She said she thinks this is not going to help, or alleviate the problems in the future. She asked if someone doesn't think this is true, to please come forward. Number 850 CHAIRMAN PORTER asked if anyone else would like to provide testimony on HB 255. Hearing none, the public hearing was concluded. He pointed out there were several approaches the committee could take considering this bill and its options, or anything else any of the members might come up with to help with that. Number 865 REPRESENTATIVE OGAN wanted to make a couple of comments. He stated that this was a case where there is a hole in the law. He is not sure if this bill is the proper vehicle, but this problem needs to be addressed. Representative Ogan referred to a comment made by Ms. Knuth regarding the criminal versus the civil argument. He said he believes when you break a traffic law, and it results in a death of a person, it should be a crime, a criminal action. TAPE 95-45, SIDE B Number 000 REPRESENTATIVE OGAN recalled the testimony of Valerie Lemon and Ms. Lemon regarding the accident Valerie and her siblings were in. He said he thinks when someone is as negligent as this, there should be some sort of ramifications for it other than a traffic ticket. He asked the committee to come up with an alternate, or help him with this problem. Representative Ogan said he truly believes these people need to suffer a little more ramifications for breaking the law and killing somebody. REPRESENTATIVE OGAN asked if anybody had more questions or comments. REPRESENTATIVE BUNDE commented he didn't think civil redress is appropriate in this case where people are using vehicles to cause the death of other people. He feels the societal combination of `you've broken a criminal law as well as a civil law.' Representative Bunde is sharing the frustration. He would like to see that gap filled, and he would like to see automatic revocation of driver's license in this case. He stated he refers to the legal experts to get there, but it definitely needs to get there in his opinion. REPRESENTATIVE OGAN commented that sometimes the legal experts have real good legal reasons why we can't do it, but it doesn't necessarily make sense. And it sometimes offends people's sense of right and wrong. He stated he clearly believes these cases have offended his and other people's senses of right and wrong. Representative Ogan said he knows there is a fair amount of outrage with people who can break traffic laws and walk away with impunity basically. Number 085 REPRESENTATIVE TOOHEY asked what are the penalties for felonious killing? CHAIRMAN PORTER responded that it would be a Class B felony. REPRESENTATIVE TOOHEY asked, which means what? MS. KNUTH stated Class B felony is five years in prison, more than a $50,000 fine. CHAIRMAN PORTER said the first thing to address is, he got the impression the idea of making this behavior, i.e., what is tantamount to a single traffic violation a misdemeanor crime, if there is a death resulting, is problematical. REPRESENTATIVE FINKELSTEIN agrees it is problematical in the setting of the law. He said it sounds like it is also a reasonable goal, we just haven't been able to do it in the context of the law. CHAIRMAN PORTER said that is the first hurdle he is asking the committee to consider. He stated if the committee wanted to stay with the notion of making this a misdemeanor crime, then perhaps the ability to suspend or revoke the driver's license can be added, and vote this thing through. Number 135 REPRESENTATIVE VEZEY said he is opposed to making homicide at any level a misdemeanor as he thinks that is going backwards. He said he knows that the prosecution and incarceration of individuals charged with negligent homicide with a vehicle is currently successful. He stated he is not aware of any of those cases that don't involve alcohol or drugs, but as soon as vehicular homicide is made a misdemeanor the ability to put these people under incarceration for ten plus years goes away -- not technically, but from a practical viewpoint it does. Representative Vezey pointed out if you give the jury or defense attorney these kinds of options, this reduces homicide with a vehicle from a possible felony, if it is indeed found by a jury to be criminal negligence, nor intent either because people who are drunk don't intend to kill people, then there would be no more felony convictions. REPRESENTATIVE VEZEY said it's not safe for society to be out in the streets, and because of some of the existing laws we have for getting some of those people are off the streets. Number 165 REPRESENTATIVE FINKELSTEIN asked Ms. Knuth what the effect would be if the committee made it for serious bodily harm, not for death, so it would be an option for the jury if they concluded a person did die, it would then be an alternative to the reckless driving. So it would be a lower standard to meet it, but you would have to have serious bodily harm. Reckless driving is a higher standard, but no proof of serious bodily harm. MS. KNUTH answered she was not quite certain what the implications with that might be. She did not know if the law is so warped that a defendant could argue if the victim died, they certainly suffered serious physical injury. She said she would need to research that. REPRESENTATIVE FINKELSTEIN said just for argument sake, the committee said, serious bodily harm short of death, so it couldn't be a lesser included offense. He felt there should be room out there for the category being discussed here. MS. KNUTH said actually, that would not address the category that has been discussed here today, where the accidents were fatal. REPRESENTATIVE FINKELSTEIN said his first question would still remain, if one made this dependent on serious bodily harm. MS. KNUTH noted assault statutes are used, which relate to serious physical injury in some driving cases. So the law is not limited to things specifically for motor vehicle accidents. A car counts as a dangerous instrument. REPRESENTATIVE FINKELSTEIN asked if all those assault statutes were felonies? MS. KNUTH agreed they are. REPRESENTATIVE FINKELSTEIN said he didn't know if the goal was achievable or not, but the goal is a lower standard, a lower penalty. REPRESENTATIVE BUNDE said in his mind, he thought the committee should continue to explore a criminal penalty for the behaviors being talked about and try to get it out of the civil arena. He pointed out that to address the concern about lesser and included offense, if they have used alcohol then they are guilty of reckless or negligent homicide? MS. KNUTH replied they were able to prosecute them. REPRESENTATIVE BUNDE asked if it would be possible to put some proviso in this or similar legislation of not having used drugs or alcohol, "I have not driven in impaired state." They would only be charged for this offense and not in the other offense so that when you have this lesser and included, somebody who has used chemicals could be charged by the other offense, then the jury can't plead down. MS. KNUTH said this would warrant some pretty close scrutiny by more people than just herself, but she knows the defendants would argue: We weren't intoxicated. We didn't prove it, and therefore, it should be a lesser included offense. She stated the question is how much evidence do they need to get that to the jury, and the jury is then able to do what it wants with the case. She didn't know at what point they could say, "I was a refusal. I didn't even take the intoximeter, and you don't have any evidence of intoxication." Ms. Knuth said she could see that they would want to look at that very closely. CHAIRMAN PORTER asked if you would have a presumption? MS. KNUTH responded, that's correct. Number 275 REPRESENTATIVE TOOHEY said she asked the sponsor if there were any other states that had this law, and he stated that Michigan does have a law on the books. Representative Toohey gave a copy of the law to Ms. Knuth for review. Number 285 REPRESENTATIVE GREEN referred to the lesser included offense and asked if that was a procedure, a law? What triggers that? Number 290 MS. KNUTH answered she didn't know if it was constitutionally required. She thought it was, and the defendant has a constitutional right to ask the court for any and all lesser included offenses, and depending on the charge, i.e., assault in the third degree can be a lesser included offense of assault in the second degree, which is a lesser included of assault in the first degree, and so you get to present all of these to the jury. She went on to say as long as the lesser included offense doesn't have any new elements that aren't found in the bigger offense, you get the instruction. REPRESENTATIVE GREEN said she had hit the key word. There is no sense in trying to attack that portion if there is a constitutional process. He thought maybe there could be one way the committee could attack a court rule or something. MS. KNUTH said no. REPRESENTATIVE BETTYE DAVIS suggested a subcommittee to further pursue HB 255. CHAIRMAN PORTER agreed and said the committee had the will but not the way yet and so what he would like to do is appoint a subcommittee. He asked if there was anyone who would like to serve on the subcommittee? REPRESENTATIVE DAVIS said she would like to serve, and she would like the legal department to be there. CHAIRMAN PORTER appointed a subcommittee with himself as Chair, with Representatives Green, Davis and anyone else. He felt they ought to try to come up with something and he apologized to those testifying that it cannot be brought to a close at that time because they want to try to do something that's meaningful, not something that will result in a tragedy. Chairman Porter said, as everyone knows by statistics they keep hearing, the majority of vehicular homicide cases are as a result of reckless and intoxicated drivers, and the committee would not want to mitigate the responsibility that those individuals have incurred by good intentions here. Consequently, the committee will go to "plan B" which has not been formulated, but the committee would endeavor to come up with something that works. The committee held HB 255 for that purpose. HJR 30 - AMEND U.S. CONST. TO LIMIT FED. COURTS CHAIRMAN PORTER introduced HJR 30 for consideration, amending the U.S. Constitution to limit federal court's actions. Number 360 REPRESENTATIVE VEZEY, sponsor of HJR 30, stated HJR 30 is in response to a move going through various state legislatures, advocated primarily by the Missouri State Legislature where it was initiated. He feels all are aware of legislative-type action coming out of the Judiciary Branch of government which has gotten to the point where they are actually levying taxes. This resolution merely requests that the Congress of the United States prepare an amendment to the Constitution of the United States prohibiting the federal court from ordering a legal subdivision of a state or the state itself from imposing taxes. Representative Vezey then asked if there were questions. Number 380 REPRESENTATIVE FINKELSTEIN commented that he was not familiar with this action and asked for examples of where this is occurring. REPRESENTATIVE VEZEY said there are numerous examples, but the most notable case he was aware of was in St. Louis, Missouri where a property tax was levied on the citizens of that county to support a court ordered school improvement program, which had to do with some of the communities being racially imbalanced, and rather than busing, they were going to a "magnet-type" school system. The court set this plan up and ordered the taxes to be assessed to pay for it. CHAIRMAN PORTER called for further testimony on HJR 30. REPRESENTATIVE FINKELSTEIN commented the country has changed a bit over time, but it isn't hard to recall some of the past activities where the courts have had to go in and try to involve themselves in desegregation efforts. Of equal importance is the general concept of equal treatment of our citizens which has not always occurred. He feels when there is a certain locale deciding to go a different direction, there may be an extreme circumstance that requires a court imposed solution. Representative Finkelstein thinks there will be times when these kinds of actions are necessitated to pursue equal treatment the American people expect under the Constitution. He stated for that reason, he would be inclined to oppose the resolution. Number 440 REPRESENTATIVE DAVIS also had some concern with the resolution based on the example given by the sponsor, because if that is the primary reason, she has seen that the "magnet-type" schools did work in areas where they were implemented and so, she cannot support HJR 30. REPRESENTATIVE BUNDE said it is not whether the magnet schools work or not. He believes the magnet schools in St. Louis did not work, but in any case, it is whether the court should be able to impose taxes or not. He said he thinks that is the germane issue. REPRESENTATIVE VEZEY appreciated Representative Davis' remarks and said he used that example because that was the case that went to the Supreme Court. That is where the Supreme Court clearly came down and said the courts can impose taxes. CHAIRMAN PORTER commented he was going to support this resolution and he does not look at it as reducing the court's ability to deal with discrimination cases at all. The court can still order that community do what they wanted them to do. He thinks it is inappropriate, and an improper application of the separation of power to say how you will do it by instituting taxes. Chairman Porter said it is up to the community as to how they want to abide by that ruling. They will have to abide by it, but they may want to opt to amend some other targets to provide the funds to what the court has ordered. So, it isn't a matter of diminishing the court's ability to support civil rights. He went on to say he feels it is a clear separation of powers issue, as the power or appropriation is the legislature's and the power of constitutional interpretation of the court's. REPRESENTATIVE DAVIS asked what if the court says, "You will take it from this pool of money"? CHAIRMAN PORTER responded the St. Louis case was upheld by the Supreme Court that they will do this by increasing the property tax. REPRESENTATIVE FINKELSTEIN said it is hard for him to argue the particular circumstances, but he would suspect the way it works is, it is true there have been numerous cases where some local subdivision or state has been in violation that in most cases where the court orders, yes, you are going to come into compliance and do it by allocating resources to address this concern. He suspects most of them do it. Representative Finkelstein continued to say that some still refuse and this is a historic fact. He agrees that doesn't affect most, only some of them. Then the court orders an action to uphold our Constitution which would become completely ineffective if they have no remedy left in which to impose a solution because most states realize the court has no power to go beyond what is really advice, so what effect does it have? CHAIRMAN PORTER replied usually those kinds of orders have the effect of substantial federal funding behind them and if you don't abide by the wishes of the feds, you lose your funding. He said his response to that is if there was such a community so recalcitrant as to disobey the order of the court, he doubts they would tax themselves anyway. So the court would still have to use other sanctions to enforce their orders. It is just the issue of appropriation he is dealing with here. REPRESENTATIVE VEZEY said he thinks Representative Finkelstein missed the point because the courts deal with the recalcitrant public officials on a daily basis, and the court has often found those individuals to be in contempt of court and provided them housing in the local correctional institution. He stated there are many avenues available for enforcement, but when the ability of the court to actually assess taxes was upheld by the U.S. Supreme Court, there was a tremendous shift in the separation of powers issue. Representative Vezey said it was a tremendous usurpation of power by the Judicial Branch of government and that is what he believes the committee is addressing...that we do have a system of separation of powers. REPRESENTATIVE FINKELSTEIN has no doubt that is the case, but he doesn't see where there has been a high level of this occurring. The question is, "Should the court system have the ability to do this in the most extreme cases." He didn't think there was a pattern to show it has been abused. CHAIRMAN PORTER asked if there was further discussion on HJR 30. REPRESENTATIVE GREEN said there was a specific amendment and staying wide of a constitutional convention, but asked if there was any concern of the sponsor that by doing this, or attempts to amend or insist the federal government stick with what is already there, that this will add fuel to opening the whole Constitution at the constitutional convention. REPRESENTATIVE VEZEY replied the Constitution of the United States is explicitly clear in how a constitutional convention is called. This does not come any closer to calling a constitutional convention than does the dropping of a gavel of the chairman of this committee. A state cannot initiate a constitutional amendment; only petition the Congress to initiate a constitutional amendment. Only the Congress can initiate an amendment, which has to be ratified by three-fourths of the states. Number 600 REPRESENTATIVE GREEN said he had not intended to get into a debate and he is familiar with the constitutional law process. His point was in agreement with Representative Vezey's "gavel dropping" comparison and he disagrees with the fact it is only heard in this room. He said it was heard in all 50 states. His point was, will this cause anything, because it now goes to all 50 states requesting that there be a constitutional amendment, add any fuel to the fire to what some perceive as a ground swell toward that end? Representative Green champions the idea, and he thinks this is really necessary, but is concerned about, "How far does this runaway horse go?" REPRESENTATIVE VEZEY answered this resolution is addressed to the Congress of the United States, the President, the Vice President, the Senate, and the House. It would be passed on to the presiding officers of the legislatures of our sister states, which he assumes would be all 50 states. It's just an indication we would like our Congressional delegation to support an amendment to this effect. CHAIRMAN PORTER commented he understands that Representative Vezey doesn't think it will cause any difference, not to debate but to find out. REPRESENTATIVE VEZEY responded he was trying to understand the question, and cannot see the connection to precipitating a constitutional convention. He sees it as asking the Congress to initiate an amendment to the Constitution, a process that has been done approximately 35 times. It is not asking Congress to call a constitutional convention. REPRESENTATIVE GREEN said he understood that. He pointed out a significant change in the makeup of the Congress and there is a ground swell for several such activities. He stated he is against this resolution. Number 620 REPRESENTATIVE TOOHEY informed the committee that amendments do not cause constitutional conventions, and she feels the committee needs some background. She spoke to Representative Finkelstein stating she doesn't think this is minor and that frightens her. CHAIRMAN PORTER asked if there was further discussion. Number 630 REPRESENTATIVE FINKELSTEIN said he didn't want to use the word "minor," but there is a long history in this country and he didn't know how many other cases had occurred, but if it has happened even more than once, it's still a rare occurrence with all of the activities of the Supreme Court trying to enforce our Constitution. CHAIRMAN PORTER asked for the wishes of the committee. REPRESENTATIVE BUNDE made a motion to move HJR 30 from the House Judiciary Committee with individual recommendations. CHAIRMAN PORTER added with attached fiscal notes. He said there is a motion to move as described, and called for further discussion or objections. There was an objection. Chairman Porter called for a roll call vote. A role call vote was taken. Representatives Vezey, Bunde, Toohey, Green, and Porter voted to move the resolution. Representatives Davis and Finkelstein voted against moving the resolution. HJR 30 was passed out of committee. HB 2 - BOOT CAMP FOR NONVIOLENT OFFENDERS Number 650 CHAIRMAN PORTER asked the sponsor of HB 2, Representative Willis to speak on his bill. REPRESENTATIVE ED WILLIS, Sponsor of HB 2, said in 1994 he introduced legislation relating to boot camps for nonviolent first- time adult offenders. He stated the bill before the committee is an updated and final version of that bill. It includes the ideas of those interested in the boot camp concept, and addresses the need of the Department of Corrections with regard to this proposed program. REPRESENTATIVE WILLIS said he feels that placing nonviolent first- time felony and misdemeanor offenders in a prison setting is not the best way to accomplish rehabilitation for that offender. He said providing an alternative to prison time and an opportunity to learn discipline and acceptable behavior will offer these offenders a chance to avoid further encounters with the law. REPRESENTATIVE WILLIS said, "The bill before you would offer the boot camp as an alternative program for first-time convicted felons or misdemeanants under the age of 26. Individuals convicted of crimes, such as homicide, assault, kidnapping, sexual offenses and offenses involving the use of a deadly weapon would not be eligible for this option." He went on to say, "The emphasis here is on nonviolent first-time offenders. At least 24 states operate boot camp programs. As can be expected, each state offers the program to different groups. For example, in 1993, Virginia's program was limited to nonviolent new felony offenders 24 years of age or under, and did not allow felons convicted of murder, manslaughter, kidnapping, sexual assault, and so on to participate in the program. Massachusetts' program, in 1993, was for male offenders under the age of 40." REPRESENTATIVE WILLIS stated he had submitted to the committee various articles and studies concerning boot camp programs. He said he believed a boot camp program could help to address many problems from prison overcrowding to recidivism rates. He went on to say a boot camp program has the potential of providing many long term benefits and he would urge positive consideration of this bill. Representative Willis said he had submitted to the committee a draft amendment to this bill, which was requested by the Department of Corrections. The amendment would give the department another tool it needs to make the program successful. He continued, under the current proposal, individuals who successfully complete the boot camp program might have to be placed back into the general population to await parole hearing. Representative Willis said this amendment would allow a pre-release furlough while awaiting the hearing. In his opinion, placing a person who has successfully completed the boot camp program back into the general prison population would not be beneficial to the person involved in the program. REPRESENTATIVE WILLIS related that since he appeared before the State Affairs Committee, he also submitted a newer version of the fiscal plan and Mr. Jerry Shriner of the Department of Corrections, is here to speak to the new fiscal note. Also, since this bill was before the State Affairs Committee, Mr. Shriner has been to Washington and conferred at some meetings on this particular issue. Representative Willis said he hesitated bringing this back to the committee until Mr. Shriner returned to Alaska so this committee would have the benefit of his knowledge. REPRESENTATIVE WILLIS said if it is the desire of the committee, he would relinquish his seat to Mr. Shriner. Number 725 REPRESENTATIVE BUNDE told Representative Willis that he did support his legislation, as he did last time, although the idea of boot camps to him, would involve younger offenders, and yet you are including people up to the age of 26. He asked if that was to allow a young person to be sentenced and serve out a sentence, or would Representative Willis envision a 26-year-old person being assigned to boot camp. Number 730 REPRESENTATIVE WILLIS answered as he understood it, any person convicted of a felony or misdemeanor, 26 years of age or younger, that is in the hands of the Department of Corrections, could be eligible for this program, but it would be under the age of 26. Number 745 REPRESENTATIVE BUNDE asked if, when they reach 26 they are not removed from the program? There's not an upper age limit. REPRESENTATIVE WILLIS replied you mean if they happened to be 26 when they went into the program and they had a birthday after? REPRESENTATIVE BUNDE said if they were 20 when they went in and they had a seven year sentence. REPRESENTATIVE WILLIS responded that boot camp is only 150 days. REPRESENTATIVE BUNDE said, okay. If they were 26 and had a birthday the day after sentencing. REPRESENTATIVE WILLIS answered he would assume they would complete the 150-day program. REPRESENTATIVE VEZEY asked for clarification on the fact the prisoners are only eligible if they are under 26. REPRESENTATIVE WILLIS answered yes. REPRESENTATIVE VEZEY said he thought he heard him say 40. REPRESENTATIVE WILLIS stated they changed that back to 26. He said some states do allow an upper age limit. REPRESENTATIVE VEZEY understood they have to be 25 years of age to enter the program. CHAIRMAN PORTER said they can't be more than 25. REPRESENTATIVE WILLIS corrected this, saying they can't be more than 26 years old. CHAIRMAN PORTER said for the information of the committee he thinks the age 25 is the youthful offender (indisc.) the federal programs. CHAIRMAN PORTER welcomed Mr. Shriner back from Washington. JERRY SHRINER, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT OF CORRECTIONS, gave a little background for the committee. He began, "Boot camp programs have been around in various states for a number of years, since the mid- to early 80s. Several programs have developed and there were problems with some of the earlier programs. The primary problems had to do with the abuse of inmates, either a direct or indirect result of the emphasis on the discipline and physical training that goes into these programs. Much of that has been taken care of through proper staff training supervision, study of the programs and the way they operate, careful hiring practices." Mr. Shriner said he is convinced, after talking to many of the people from the 26 states that have programs, that they can be operated humanely, safely, and effectively. He stated that was his biggest concern so he was glad to gain that part of the information. MR. SHRINER related he felt he should address why the fiscal note was changed. Again, it has to do with people who have operated these programs. It was pretty clear that all of these programs operate as minimum security facilities. In the original fiscal note, it was said the program would be designed with facility issues, and you have program by facility, aimed to meet the needs of minimum custody prisoners. He continued saying all of the programs he really would take a look at are minimum custody facilities, and staff report essentially every case of discipline problems, escapes, violence between inmates or by inmates against staff are practically unheard of. MR. SHRINER said that his philosophy and the experience in the normal prison facilities, the combination of hard work, the discipline that is imposed from the time they are there, all of these programs carefully select inmates. They have that option. The average prison does not have to pick and chose which ones you want to work with. He said all of those things combined make these relatively low risk groups of individuals with whom the Department of Corrections works. He stated the point of the program is that in terms of designing a facility, you can design one with lower security ratings. You don't need as much fence. You don't need as many electronic gauges. There's a lot of things you don't have to put into these kinds of programs that you would have to put into a medium security facility, for example. MR. SHRINER related respective to the amendment that was proposed having to do with furloughs, the original legislation would allow an early parole for those folks who had successfully completed the program. He said one of the things that again virtually every state that has these programs has found, is that a big part of it is because the program moves rapidly. It's 150 to 180 days in most states, and a lot happens in that period of time. To make this thing happen requires a fair amount of reinforcement. Mr. Shriner continued much of the effects of 150 or 180 day programs would be lost if the person then had to go back to a regular prison population and wait what would be a typical 120 days from the time they successfully complete the program until the time they can get a hearing before the parole board to be granted parole. MR. SHRINER said what the department suggested to the sponsor was to allow the Commissioner of Corrections the option of granting furloughs to those individuals who successfully complete the program because that is something that could be done the last week, or the last two weeks, when it was obvious the person was going to successfully complete, they could be granted a furlough in a somewhat less structured environment, but still under 24-hour supervision, and they could stay there during that time the parole hearing was being processed. Mr. Shriner stated the Department of Corrections supports that and believes it is an important part of making the program function effectively. MR. SHRINER stated he supposed he had to talk about money since it is related to the fiscal note, but the crime legislation that was passed in 1994, federal crime legislation, set aside $24.5 million, which, at this point, is only being dispensed for two things. He said they are making small $50,000 grants to states to do criminal justice planning, and grants of up to $2 million to states that are either renovating facilities or building new facilities out of which they intend to operate boot camps. Mr. Shriner went on to say that in legislation that is through the House, and will be before the Senate later on in May, there will be somewhere between $6 billion and $10 billion over the next five years dispensed in all probability in block grants to states, and much of that money will be aimed at what is known as "violent offender incarceration." Mr. Shriner said the point of it is to, in some way, assist states in making sure there is room in their prisons to incarcerate violent offenders. MR. SHRINER said we are somewhat fortunate in this state in that despite the fact that the prisons are overcrowded, he doesn't think there have been any violent offenders put out on the streets for lack of space for them to be incarcerated. This is not true of other states. Georgia is an extreme example where a violent offender may get ten years and end up serving five or six days. He said they simply did not have room for people at the inn. Mr. Shriner said the point of the legislation and the reason that they will be not only providing capital money as they are now, but will in all probability be providing operating money for boot camps and other kinds of alternative sanction programs, is for precisely that reason. He stated it is not that Congress has suddenly taken a turn to intermediate sanctions. Congress has said we want violent offenders incarcerated and in order to do that we are willing to do some things we might not otherwise advance. For example, boot camps, community work service programs, and all kinds of intermediate sanctions. MR. SHRINER said the reason he was telling the committee this is to say that the fiscal note shows a capital reduction in what was originally projected as a $5 million capital investment. The Department of Corrections is now saying it's $3 million, in large part because we believe we can build a facility with less security, and, in fact, may be able to build it in connection, not physically connected to, on the grounds of some other facility such as the minimum security facility at Palmer, at Wildwood, or some other place like that where there is some space and possibly some other resources to apply to reduce the costs. MR. SHRINER stated in terms of operating costs, the only difference on the new fiscal note is the department applied more recent data with regard to the cost to operate a prison bed in this state than he had at the time he followed the original fiscal note, so that reduced the costs somewhat. He said at the same time, he applied 5 percent inflation factor that the... TAPE 95-46, SIDE A Number 000 MR. SHRINER said he thought that explained the difference in the fiscal note and the department's need for the furloughs. Number 070 CHAIRMAN PORTER stated Chairman Kott will kill him if he's late again to one of his meetings, so he asked the Vice Chair to take over. He did have two questions first. Are there enough prisoners left in our system to make this a viable program? He pointed out they were cutting out violent offenders and it seemed to him most of the activity done is already cut out. MR. SHRINER answered that it is a close call, frankly. He said the department was concerned about two things in the bill. The Department of Corrections would just as soon the age went to 30 years, for example, rather than 25. The first offender also limits that pool considerably. You could easily have a second offender, a second burglar for example, the person could be 21- 22-years-old, have a second burglary, maybe has three or four years to serve. He may be a good candidate for this program, but would be excluded. Mr. Shriner said that would increase the pool of people that are available. The short answer to Chairman Porter's question is, the last time I looked there were some 233 individuals who are in minimum custody that are 25 years and under. He said he has not sorted out which ones of those are violent offenders. He said he suspects there are perhaps 100 of those who would really qualify for this program and what they are looking at is probably a 50-bed facility. So, the short answer is yes, I believe there is. CHAIRMAN PORTER said he didn't see this the last time through, that being the successful completion of this would put someone in the position of the discretionary parole. He asked if this would put them in the position regardless of a determined sentence that they had? MR. SHRINER responded that it was his understanding that it would, but he is not an attorney so he will pass on that, as he is not sure. CHAIRMAN PORTER took his leave and turned the meeting over to Vice Chairman Joe Green. VICE CHAIRMAN GREEN asked if there were any other questions of Mr. Shriner. He stated that Mr. Shriner had made a tremendous change on the fiscal note, and he wondered if, given another two weeks, Mr. Shriner could get that to where they would pay us? REPRESENTATIVE VEZEY asked if it would be fair to say that the Department of Corrections is estimating about $20,000 per prison bed, that would be $40,000 per year per prison bed, but about $20,000 per prisoner because they would be eligible for parole after they completed this? You're talking about $2 million and 100 bed years. MR. SHRINER replied, 120 people. He stated the current rate is $107 a day average across the system. If they are in there 150 days, yes, the cost for one of those individuals for the 150-day program is going to be about $15,000. REPRESENTATIVE VEZEY remarked that it was going to be the same cost as the existing programs. MR. SHRINER answered that, in fact, the cost per day is more in existing programs. In other words, in low level security the average cost may be $107. The people in this program may otherwise be in a facility that operated at a lower cost where security is lower. He said on the other hand, they are only in this program for half as long perhaps. The other end of that is virtually everyone who operates these programs will tell you that it is not enough to simply put someone through 150 or 180 days in a boot camp program. Mr. Shriner stated you have to provide a variety of other services such as counseling, education, and intensive supervision along with it and after it. He said the cost of probation and parole is higher for this group of people than for somebody getting out of prison after two years. Mr. Shriner related these states have found when you tie the whole project together, you're probably spending less on the boot camp people than on a normal imprisonment simply because you've shortened up the prison time so much. He said the net effect is a smaller cost, but if you only look at the daily cost it looks more expensive. VICE CHAIRMAN GREEN asked if there were any more questions. REPRESENTATIVE TOOHEY inquired about the recidivism rate for these people. MR. SHRINER stated the recidivism rate in well-run programs is better although it's not like half. It's like 2 or 3 percent and some of the programs have dropped 5 or 6 percent. It can be fairly significant, but the services have to be provided that go along with it and do a good job of it. He said it's not a guarantee by any means. VICE CHAIRMAN GREEN asked if there were any other questions of Mr. Shriner or the sponsor. REPRESENTATIVE BUNDE remarked that he didn't think 5 percent recidivism rate was a good rate. REPRESENTATIVE VEZEY said he thought the recidivism rate differed by 5 percent. MR. SHRINER said that was correct. REPRESENTATIVE BUNDE stated if the recidivism rate was 5 percent, there would be no prison population. MR. SHRINER agreed with Representative Bunde, but stated most states run 20 to 30 percent recidivism rate. VICE CHAIRMAN GREEN asked what the wish of the committee was, if there were no further questions. Number 200 REPRESENTATIVE BUNDE made a motion to move amendment one, which states: page 1, line 3, following "eligible for", insert "furloughs and; page 2, following line 2, insert a new bill section to read: "*Sec. 3. AS 33.30.111 is amended by adding a new subsection to read: (g) A prisoner who has successfully completed the boot camp program under AS 33.30.182 is eligible for a prerelease furlough under this section under regulations adopted by the commissioner under AS 33.30.101 regardless of whether the prisoner has served the portion of the term required under (d) of this section."; renumber the following bill sections accordingly. VICE CHAIRMAN GREEN asked if that was the one dated 3/27/95? REPRESENTATIVE BUNDE affirmed the date of 3/27/95, page 1, line 3. VICE CHAIRMAN GREEN asked Representative Willis if he would like to speak to the amendment. REPRESENTATIVE BUNDE replied that the amendment had been spoken to, but not passed yet. REPRESENTATIVE WILLIS stated that would give the Department of Corrections the tool it needs to make the program successful. It would allow a prerelease furlough while awaiting the hearing. He said that is the thrust of that particular amendment. VICE CHAIRMAN GREEN asked if there was any discussion or objection to the amendment. Hearing none, the amendment passed. (Indisc. -- static on tape). REPRESENTATIVE FINKELSTEIN asked where does it say (indisc. -- static) anyone who is on their second prison term wouldn't qualify? MR. SHRINER said page 3, line 23. REPRESENTATIVE FINKELSTEIN said he must have misunderstood the testimony because he thought only first offenders would be able to qualify. MR. SHRINER replied that he may have misspoken himself as this issue was discussed and what it actually said was "cannot actually have participated in a boot camp program" and then the other conditions for eligibility. REPRESENTATIVE BUNDE made a motion to move CSHB 2(JUD). VICE CHAIRMAN GREEN (indisc. - static) asked if there was any objections. Hearing none, CSHB 2(JUD) was moved out of committee. HB 274 - TUBERCULOSIS CONTROL Number 220 CHAIRMAN PORTER asked the sponsor, Representative Cynthia Toohey, to speak on House Bill 274. REPRESENTATIVE TOOHEY stated this was an amendment submitted by the Department of Health, Education and Social Services (HESS). She invited Dr. Peter Nakamura to speak on the bill. DR. PETER NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, spoke on this issue which he feels is extremely important to the ability to address the problems of tuberculosis (TB). He stated there has been a resurgence of the problem this year and found one situation where the individual was not able to conform to the requirements for treatment and the department had to impose detention or quarantine. Dr. Nakamura said in doing that, the department found the statutes were out of date and did not provide for individual due process as identified in our Constitution. DR. NAKAMURA related the department readdressed the issue and in readdressing it, they covered a number of revisions in HB 274. One issue covered was to bring the practice of monitoring of TB more up to current standards in terms of reporting; assuring that if an individual is identified as having TB, it is reported to the State Health Department, and that if an individual is under treatment for TB, the State Health Department be notified if the treatment is stopped at any time before conclusion. The concern is if the treatment is stopped before completed, there is the chance of developing a drug resistant strain of TB. He said once that happens, it is extremely difficult and each time the organism develops another resistance, there is always a possibility to develop an organism that is totally unresponsive to any medication. He went on to say to avoid that, there is in this amendment, a requirement that any person on TB treatment stay on TB treatment until completed. DR. NAKAMURA pointed out some wording changes such as "TB sanitorium," which we no longer have; a label for those having TB as "tubercular," a term that is no longer appropriate; a recognition of physicians practicing in Alaska who may not be licensed in Alaska, but have the approval to practice medicine in Alaska. This would be those federal physicians who were assigned to some of the programs where a license is not required in the state, but they can practice. The revisions would allow that to continue in the way it presently does. Dr. Nakamura continued saying it allows access by the state medical officers to health records of any individual with TB in the instance where they are reported as not conforming to the appropriate treatment. DR. NAKAMURA stated that the main issue in the bill is to assure there is due process so that when an individual is detained or quarantined, the department does not have to face the charge of constitutionality of their act so they can treat the person, if necessary. Dr. Nakamura cited two situations in Anchorage where two individuals terminated their treatment after approximately four weeks of therapy. The only way to get them back into treatment would have been under criminal penalties. He said the rewrite of this statute does include some reference to penalties, to a misdemeanor, and further review of the number of amendments he hopes can be introduced to remove that stigma. The department feels it is inappropriate to take an individual who is ill and make it a criminal offense in any way. DR. NAKAMURA feels there are some individuals who cannot conform to the proper treatment and as long as the department has the ability to detain them and assure they are on therapy, it should not be a criminal offense. Dr. Nakamura went on to say if it is made a criminal offense, it will make it much more difficult for the health providers to address these issues with other people. Number 375 REPRESENTATIVE TOOHEY asked if the imposed detention mentioned was through a quarantine court order. DR. NAKAMURA answered yes, under the due process a hearing is required and that the hearing take place in a prompt manner so the person is not detained over a period of time without an appropriate hearing. He also brought up the privacy issue, which is not included in this bill, to assure the individual's right to a hearing in privacy if they so choose. Dr. Nakamura stated that the department's concern is there could be a breach of privacy in that individual's medical records. CHAIRMAN PORTER asked if there were any questions of Dr. Nakamura. REPRESENTATIVE BUNDE moved the following amendment, dated 4/11/95/8.1.: Page 1, lines 1-2, delete ", including provisions for certain penalties"; page 7, line 3, delete "and"; page 7, line 6, after "provided", insert "; and (5) advice to the person being detained that the person has the right to elect whether a proceeding providing court review is open or closed to the public"; page 8, after line 15, insert a new subsection to read "(d) A person who is the subject of a court proceeding initiated under AS 18.15.136 or 18.15.137 may elect to have the hearing open or closed to the public."; and on page 9, lines 15-16, delete all material. CHAIRMAN PORTER asked if there was an objection to amendment one Hearing none, the amendment was adopted. Chairman Porter called Kristen Bomengen of the Attorney General's Office to testify. KRISTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES SECTION, ATTORNEY GENERAL'S OFFICE, DEPARTMENT OF LAW, said she was primarily at the meeting to answer any legal questions that may come up regarding the bill. She commented that to prevent the legal dilemma at the present time, the department's medical officers have options under the current statute to issue examination orders and quarantine orders. Ms. Bomengen said if the person doesn't understand the seriousness of their illness, and for some reason doesn't wish to or doesn't comply with those orders, then the department, under the current statutes, is required to file a criminal charge and charge them with a misdemeanor offense. MS. BOMENGEN said they did encounter that circumstance in the late part of 1994, and the department found the court responded rather awkwardly to finding that an individual in a medical office issued an order and then the court was presented with a criminal offense for not complying with that order. She stated the court order is designed to address the steps that people may reasonably expect between the initial issue for the medical order and the eventual requirement they remain in quarantine. She also supported the inclusion of the amendment because as the additional steps were added into the bill, it was found the criminal penalties didn't serve any purpose as all of the same aims could be achieved by the means already there. Number 450 REPRESENTATIVE GREEN brought up Dr. Nakamura's statement regarding the patient's completing treatment so they don't end up creating a bacteria that is untreatable. He asked if that was sufficient grounds that, in effect, the person is placed in quarantine and prevented his freedom. He asked, "is there any possibility of a problem with invasion of his rights?" MS. BOMENGEN replied that under the steps outlined under the proposed statute, the department should be able to address those circumstances. Then, when there was a case where the person had lapsed in the drug regimen and continued to show signs of the disease in samples that were taken, the court had an understanding of what that public health problem became. She said that with this bill, the steps were available now to outline the problems to the court. REPRESENTATIVE GREEN expressed his concern that the courts might again overrule this. MS. BOMENGEN answered certainly, every case is determined by its facts and how they fit with the law. She said in designing this law, they looked to other states. There is one other state case that has upheld a continued extended quarantine in a case where an individual continually failed to maintain the medical regimen. Ms. Bomengen said certainly they would invoke the case under a similar law constructed to support the enforcement for public safety reasons. Number 490 REPRESENTATIVE GREEN asked if this would also circumvent the possibility of leaving the state if person A is under quarantine and decides that he wants to go to Oregon, for instance. MS. BOMENGEN said she does not believe there is anything in this bill that would carry that explicit function, but if the department knew of the plans being made, the department does have the option of seeking an emergency detention in very short order so that without contacting the party, there would be an order from the judge to have the person picked up and detained. She said it will go far enough so when there is sufficient information available for the department to respond, it will allow them to do so. Ms. Bomengen stated that is something not available in the present law. Number 500 REPRESENTATIVE TOOHEY inquired about the transportation with the airlines, that they can also refuse service to someone with a communicable disease. MS. BOMENGEN said it is her understanding that if airlines are aware there is a public health risk, they can refuse passage to a passenger. CHAIRMAN PORTER asked if there were other questions, or statements. Hearing none, public testimony was closed. The Chairman asked the wish of the committee. REPRESENTATIVE VEZEY moved to pass CSHB 274(JUD) out of the House Judiciary Committee. CHAIRMAN PORTER asked if there were any objections. Hearing none, CSHB 274(JUD) was passed out of the House Judiciary Committee. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 3:25 p.m.