Legislature(1997 - 1998)
05/06/1997 02:24 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE May 6, 1997 2:24 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189 "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." - RESCINDED ACTION OF 05/05/97; MOVED CSSSHB 189(JUD) OUT OF COMMITTEE HOUSE BILL NO. 245 "An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure." - MOVED CSHB 245(JUD) OUT OF COMMITTEE HOUSE BILL NO. 16 "An Act relating to delinquent minors, to the taking of action based on the alleged criminal misconduct of certain minors, to the services to be provided to the victims of criminal misconduct of minors, and to agency records involving minors alleged to be delinquent based on their criminal misconduct; and amending Rule 19 and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska Delinquency Rules." - MOVED CSHB 16(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 3(JUD) "An Act authorizing prosecution and trial in the district court of municipal curfew violations, and providing for punishment of minors upon conviction for violation of a curfew ordinance." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 199 "An Act relating to the property, transactions, and obligations of spouses; relating to the augmented estate; amending Rule 301, Alaska Rules of Evidence; and providing for an effective date." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 232 "An Act establishing the independent division of administrative hearings in the Department of Administration in order to provide a source of independent administrative hearing officers to preside in contested cases; relating to administrative hearing officers; relating to contested case proceedings; and providing for an effective date." - BILL HEARING CANCELLED (* First public hearing) PREVIOUS ACTION BILL: HB 189 SHORT TITLE: RESTRICT TOBACCO SALES SPONSOR(S): REPRESENTATIVE(S) COWDERY, Austerman, Ryan JRN-DATE JRN-PG ACTION 03/12/97 640 (H) READ THE FIRST TIME - REFERRAL(S) 03/12/97 640 (H) LABOR & COMMERCE, JUDICIARY 04/03/97 922 (H) SPONSOR SUBSTITUTE INTRODUCED- REFERRALS 04/03/97 922 (H) L&C, JUDICIARY 04/09/97 (H) L&C AT 3:15 PM CAPITOL 17 04/09/97 (H) MINUTE(L&C) 04/10/97 (H) L&C AT 3:15 PM CAPITOL 17 04/10/97 (H) MINUTE(L&C) 04/18/97 (H) L&C AT 3:15 PM CAPITOL 17 04/18/97 (H) MINUTE(L&C) 04/21/97 1211 (H) L&C RPT CS(L&C) NT 4DP 1NR 04/21/97 1211 (H) DP: COWDERY, RYAN, HUDSON, ROKEBERG 04/21/97 1211 (H) NR: BRICE 04/21/97 1211 (H) 2 ZERO FISCAL NOTES (DPS, REV) 04/21/97 1225 (H) COSPONSOR(S): AUSTERMAN 04/28/97 (H) JUD AT 1:45 PM CAPITOL 120 04/28/97 (H) MINUTE(JUD) 04/28/97 (H) MINUTE(JUD) 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 05/05/97 (H) MINUTE(JUD) 05/05/97 (H) MINUTE(JUD) 05/05/97 (H) MINUTE(JUD) 05/05/97 (H) MINUTE(JUD) BILL: HB 245 SHORT TITLE: DOM. VIOL. ASSAULTS;PRISONER CONTACTS SPONSOR(S): REPRESENTATIVE(S) DYSON, Berkowitz JRN-DATE JRN-PG ACTION 04/10/97 1061 (H) READ THE FIRST TIME - REFERRAL(S) 04/10/97 1061 (H) STA, JUDICIARY, FINANCE 04/18/97 1189 (H) BERKOWITZ CHANGED TO COSPONSOR 04/18/97 1189 (H) DYSON CHANGED TO PRIME SPONSOR 04/24/97 (H) STA AT 8:00 AM CAPITOL 102 04/24/97 (H) MINUTE(STA) 04/25/97 (H) JUD AT 1:00 PM CAPITOL 120 04/25/97 (H) MINUTE(JUD) 04/25/97 1340 (H) STA RPT 6DP 04/25/97 1340 (H) DP: JAMES, ELTON, BERKOWITZ, DYSON, 04/25/97 1340 (H) VEZEY, IVAN 04/25/97 1340 (H) 2 INDETERMINATE FNS (COR, ADM) 04/25/97 1340 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 04/30/97 (H) JUD AT 1:30 PM CAPITOL 120 04/30/97 (H) MINUTE(JUD) 05/02/97 (H) JUD AT 1:00 PM CAPITOL 120 05/02/97 (H) MINUTE(JUD) 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 05/05/97 (H) MINUTE(JUD) 05/06/97 (H) JUD AT 2:15 PM CAPITOL 120 BILL: HB 16 SHORT TITLE: JUVENILE DELINQUENCY PROCEDURES SPONSOR(S): REPRESENTATIVE(S) KELLY JRN-DATE JRN-PG ACTION 01/13/97 31 (H) PREFILE RELEASED 1/3/97 01/13/97 31 (H) READ THE FIRST TIME - REFERRAL(S) 01/13/97 31 (H) HES, JUDICIARY 02/29/97 (H) MINUTE(HES) 04/25/97 (H) HES AT 3:30 PM CAPITOL 106 04/25/97 (H) MINUTE(HES) 04/29/97 (H) JUD AT 1:00 PM CAPITOL 120 04/29/97 (H) MINUTE(JUD) 04/29/97 (H) MINUTE(JUD) 04/29/97 (H) HES AT 3:00 PM CAPITOL 106 04/29/97 (H) MINUTE(HES) 04/30/97 1395 (H) HES RPT CS(HES) NT 5DP 04/30/97 1396 (H) DP: DYSON, GREEN, BUNDE, PORTER, VEZEY 04/30/97 1396 (H) 4 FNS (2-ADM, COURT, COR) 04/30/97 1396 (H) 3 ZERO FNS (DHSS, LAW, DPS) 05/01/97 (H) MINUTE(JUD) 05/06/97 (H) JUD AT 2:15 PM CAPITOL 120 WITNESS REGISTER MIKE FORD, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Testified on CSSSHB 189(JUD). MARCO PIGNALBERI, Legislative Assistant to Representative John Cowdery Alaska State Legislature Capitol Building, Room 416 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Testified on behalf of sponsor regarding CSSSHB 189(JUD). REPRESENTATIVE FRED DYSON Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Prime sponsor of HB 245. BARBARA BRINK, Director Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Provided department's position and answered questions regarding HB 245 and HB 16. JAN MacCLARENCE Abused Women's Aid in Crisis 100 West 13th Anchorage, Alaska 99501 Telephone: (907) 279-9581 POSITION STATEMENT: Testified on HB 245. JODI OLMSTEAD P.O. Box 56873 North Pole, Alaska 99705 Telephone: (907) 488-0334 POSITION STATEMENT: Testified on HB 245 and HB 16. MARGOT KNUTH, Assistant Attorney General Criminal Division Department of Law 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907) 465-4652 POSITION STATEMENT: Provided Department of Corrections' position and answered questions regarding HB 245; testified regarding HB 16. JAYNE ANDREEN, Executive Director Council on Domestic Violence and Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Telephone: (907) 465-4356 POSITION STATEMENT: Provided council's position on HB 245. LAURIE HUGONIN, Executive Director Alaska Network on Domestic Violence and Sexual Assault 130 Seward, Room 501 Juneau, Alaska 99801 Telephone: (907) 586-3650 POSITION STATEMENT: Testified in support of HB 245. BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly Alaska State Legislature Capitol Building, Room 411 Juneau, Alaska 99801 Telephone: (907) 465-6589 POSITION STATEMENT: Presented HB 16 on behalf of sponsor. BRANT McGEE, Public Advocate Office of Public Advocacy Department of Administration 900 West 5th Avenue, Suite 525 Anchorage, Alaska 99501-2090 Telephone: (907) 269-3501 POSITION STATEMENT: Testified regarding HB 16. ACTION NARRATIVE TAPE 97-78, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 2:24 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, Rokeberg, Croft and Berkowitz. Representative James arrived at 2:37 p.m. SSHB 189 RESTRICT TOBACCO SALES [Contains considerable discussion of SSHB 159] CHAIRMAN GREEN announced the first item of business would be Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." Number 0062 REPRESENTATIVE BRIAN PORTER made a motion to rescind the committee's action of May 5, 1997, that had moved CSSSHB 189(JUD) out of committee. CHAIRMAN GREEN asked whether there was an objection. There being none, the bill was again before the committee. He asked Mike Ford to explain the dilemma arising from the verbal amending done the previous day. Number 0099 MIKE FORD, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, stated, "The committee did pass out two bills, House Bill 159 and House Bill 189. And there were some duplicative, conflicting and overlapping provisions in the two bills. So, what we did was attempt to differentiate between the provisions that were conflicting and resolve that, which resulted in a Judiciary CS for House Bill 159, which has passed out of the committee, and a new Judiciary CS, which you have before you now. So, I believe we have a vehicle which ... avoids the conflicts. It contains those provisions that will capture, I believe, the intent of the sponsor and the committee and, hopefully, be a vehicle that will allow you to proceed on ... both fronts." He offered to go through the new draft, version 0-LS0711\H, Ford, 5/6/97. CHAIRMAN GREEN asked whether the sponsor has any problem with it. MARCO PIGNALBERI, Legislative Assistant to Representative John Cowdery, stated that Representative Cowdery likes this version. REPRESENTATIVE ERIC CROFT asked to hear what the changes are. He then made a motion to adopt version 0-LS0711\H, Ford, 5/6/97, as a work draft. There being no objection, that version was before the committee. MR. FORD explained the changes: "Section 1 repeals language that is applicable to the vending machine limitation on sale and also adds a `knowing' element in place of the `negligent' sale. So, we've raised the standard there for committing this offense. "Section 2 is the section where we have actually raised the punishment to class B and class A misdemeanor, depending on whether it's your first offense or whether you have multiple offenses. "Section 3 is a provision that imposes a restriction on sale. ... Except for sales by vending machine, you can't sell tobacco products unless you meet the paragraph 1 and 2 requirements. Paragraph 1 is simply an access limitation; you have to restrict your ... public access to the product. Paragraph 2 is the wholesale exception; if you're a wholesaler, then you are allowed to sell. Number 0341 "Section 4 is a section added to be consistent with Section 1. It's raising the standard from `criminally negligent' to `knowing' in order to lose your license ... as a wholesaler. "Section 5 is a repeal section. We're repealing two sections that deal with vending machines. And, again, this is consistent with the changes made in House Bill 159 and is intended to avoid any conflicts. "Section 6 is a provision we added that is intended to allow the Revisor to reconcile House Bill 159 and 189, assuming that both pass, and perhaps with additional changes, which we are unaware of at this point." Number 0403 CHAIRMAN GREEN asked for confirmation that if HB 159 didn't pass, Section 6 would become moot. MR. FORD responded, "That's correct. The one thing I would point out to the committee, however, is that if 159 does not pass, we have taken out the vending machine restrictions in 189. So, if in fact ... at some in this process this becomes the sole vehicle, you would probably want to add those in here so you'd maintain your restrictions on vending machine sales." REPRESENTATIVE CROFT asked, "Can we add them in now, identically, and then no matter what bill comes through, ... it's there? Can we pull the ... 159 vending machine?" MR. FORD replied, "You could do that. As I said, when we approached the project, it was as a package, 159 and 189. And assuming that both those vehicles passed, we're trying to eliminate the conflicts between them, because they did repeal and reenact sections. Actually, one section was amended; the other bill repealed and reenacted the same section. So, in order to avoid the confusion over ... `who's on first,' we drafted it this way." Number 0510 REPRESENTATIVE CROFT responded, "Well, I guess I'd move that as a conceptual amendment. Noting the lateness in the session, he said, "And I'd rather make sure that it is there, rather than, when we're trying to strengthen the law, have the unintended consequence of possibly eliminating the vending machine restrictions." Number 0525 REPRESENTATIVE CON BUNDE said his only question would be whether this would delay this bill getting to the floor. He said it is a package, and he believes there is an understanding that it will be a package on the floor. CHAIRMAN GREEN responded, "And I suppose if it did happen that somehow it didn't make it here, we could revisit it on the other side." REPRESENTATIVE CROFT added, "I guess on the floor." CHAIRMAN GREEN said, "Or the floor ...." REPRESENTATIVE CROFT said he'd withdraw the motion, although it may still be a good idea, because of the timing. Number 0580 REPRESENTATIVE NORMAN ROKEBERG asked whether there was a further referral to the House Finance Committee. CHAIRMAN GREEN said, "This one I think has zero." REPRESENTATIVE ROKEBERG asked, "And 159?" CHAIRMAN GREEN replied, "159 is lagging because it does have a referral ... to Finance. It has a positive fiscal note. It may be waived, but ...." REPRESENTATIVE ROKEBERG suggested it would be better to do the work in committee, rather than on the House floor. Number 0617 REPRESENTATIVE PORTER pointed out that the work they were anticipating would only be needed if one bill failed. "I don't see that happening," he added. REPRESENTATIVE ROKEBERG said, "It depends how it's scheduled on the calendar, too." CHAIRMAN GREEN said, "Well, the worst that would happen, if this were scheduled first and the other one fails, then we'd just reconsider our vote on this and reopen the bill." REPRESENTATIVE ROKEBERG asked, "We have a designated `amender' there?" CHAIRMAN GREEN stated, "I will follow that up, then, and appoint myself ... to make sure that we don't pass a bill over that doesn't have the vending machine clauses in it." REPRESENTATIVE ROKEBERG stated his understanding that the House Rules Committee would be "packaging" it. He suggested perhaps they could do it there. CHAIRMAN GREEN responded, "That would work, too. The only thing is, we still won't know whether they both make it." Number 0688 REPRESENTATIVE BUNDE stated for clarification, "There has never been anyone charged under legislation like this. I don't see anything that would probably change that." MR. FORD responded, "Mr. Chairman, it's my understanding that that is correct. However, [you] probably should ask that question of the Department of Law." REPRESENTATIVE PORTER made a motion to move version 0-LS0711\H, Ford, 5/6/97 out of committee with individual recommendations. There being no objection, CSSSHB 189(JUD) moved from the House Judiciary Standing. HB 245 - DOM. VIOL. ASSAULTS; PRISONER CONTACTS Number 0773 CHAIRMAN GREEN announced the next item of business would be House Bill No. 245, "An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure." Number 0787 REPRESENTATIVE FRED DYSON, prime sponsor, explained that HB 245 sets some minimum standards for domestic violence sentences and restricts the perpetrator's ability to call the victim. Much of the work in drafting the bill was done by Representative Berkowitz, who could answer technical questions. Representative Berkowitz had asked that Representative Dyson, who is also interested in domestic violence issues, be the prime sponsor. REPRESENTATIVE DYSON explained that this takes two important steps. It prevents defendants from using their one phone call to contact and harass victims; victims, groups and police departments throughout the state have recognized it as another step in protecting victims from ongoing harassment. It also establishes a graduated minimum sentence for domestic violence offenders. "And I might add it leaves what we think is a prerequisite flexibility for prosecutors and defense attorneys in dealing with this," he stated, "And these things are progressive. And those who are repeat offenders will feel the increasingly repressive nature of the law if this passes." Number 0953 REPRESENTATIVE CROFT asked, "Section 1: Has that happened? I mean, people use their phone call to continue harassment?" REPRESENTATIVE DYSON said yes. He stated, "In my experience, dealing some with perpetrators but also quite a bit with victims, people are irrational. And vengeance and creating discomfort for their victims and terrorizing them and threatening them, particularly when the thing gets to the point where ... these guys have been arrested, then they know that in most domestic violence things, there are very few witnesses, sometimes just children, that getting to and threatening the victim is, you know, a very good way to try to beat the thing, beat the charge." Number 1004 REPRESENTATIVE ROKEBERG referred to Section 1, page 1, line 13, which adds "friend" and deletes "friends". He asked whether a prisoner has the right to refuse a visit from an alleged friend. REPRESENTATIVE ETHAN BERKOWITZ replied, "Sure." REPRESENTATIVE ROKEBERG asked the reason for making it singular. REPRESENTATIVE BERKOWITZ pointed out that it is just one phone call. REPRESENTATIVE BUNDE commented that with a right to contact friends, one could have quite a long series of calls one wanted to make. Number 1074 REPRESENTATIVE CROFT indicated that the desire to increase the seriousness of the crime made sense to him, putting teeth into it "without unduly hamstringing, if you will." He asked for an explanation of how it walks that line. Number 1106 REPRESENTATIVE BERKOWITZ explained, "What often happens with domestic violence assaults is the prosector and defense attorney will get together. And people who are experienced more or less know where the sentence will wind up for a particular crime. But it's useful to have the hammer of mandatory time in the prosector's arsenal, and it can also be useful in the defense attorney's arsenal to help persuade a client that it might perhaps be futile to persist. And what ... we've tried to engineer in this bill is a loophole that defense attorneys and prosecutors can use so they can charge, essentially, in the alternative: either you ... take a domestic violence assault charge, which carries mandatory minimum ... penalties, plus there would be other contempt of court charges potentially going alongside, because ... they all occur consistent with an order ...." REPRESENTATIVE CROFT asked, "Inconsistent with it?" REPRESENTATIVE BERKOWITZ said, "In order to have a domestic violence assault, there has to be a court order at some point in the process. But it doesn't necessarily have to be charged that way." Number 1197 REPRESENTATIVE PORTER stated, "We've heard mentioned several times the phenomenon of unintended consequences. ... One of the prosecutors in the municipality called and had a concern about Section 3, as it relates to establishing specific `A' levels for subsequent offenses, which could negate the ability to impose a suspended sentence from the first occurrence. Quite often, especially in serious-injury-type domestic violence cases, a very substantial suspended sentence is imposed at the first conviction. And if someone had 120 days or 180 days or something hanging over their head, then faced with this, I think that you would cut that in half, and it would lose the ability to persuade pleas and those kinds of things. So, I think the suggestion was to try to word this so that that wouldn't occur, and ... after our grand success yesterday, I'm not suggesting that we craft this at the table. But it was a concern expressed by a prosecutor who handles quite a few of these cases." Number 1265 REPRESENTATIVE CROFT responded, "Well, we had some of that concern in another bill. But were you suggesting an `at least'? It does say, `sentence to a minimum term of'. So, it wouldn't seem to me to require 60 days; it would require at least 60 days. And ... if the prior suspended, or whatever the fact situation, increased that, ... that it could still happen, minimum term, but it doesn't state any sort of ceiling, just floor." REPRESENTATIVE DYSON concurred with Representative Porter that one of the best tools a judge has is a suspended imposition of sentence to mandate anger management or "male awareness" and fairly strict supervision. He stated, "And I don't think we are precluding that tool here." Number 1330 REPRESENTATIVE PORTER responded, "I believe the concern was when you set these kinds of things out, somehow they become a standard. And there was concern that that not be the case. I think that's correct, that this is minimum. Maybe we could underline `minimum' or something." (There was laughter.) Number 1357 REPRESENTATIVE ROKEBERG referred to page 2, line 20. He said, "It seems as if no imposition of sentence or a partial sentence would be allowed under this subsection. So, if the case is where there is ... perhaps 60 days of ... incarceration and 120 days of .... CHAIRMAN GREEN asked, "Community service or whatever?" REPRESENTATIVE ROKEBERG responded, "No, it's still suspended, but it could be imposed if there's a repeat offense. ... I mean, is that a problem here, with that language?" REPRESENTATIVE BERKOWITZ explained, "There's a section of Title 12 which has to do with sentencing, which permits courts to suspend the imposition of sentence. Basically, you behave, you don't have to go to jail, it gets wiped off your record, to some extent. ... And usually, suspended imposition of sentence only applies for the first offense. There might be rare instances where a defendant might get a second or even, incredibly rarely, a third bite at the apple. ... This is something the drafter wanted put in. It's, in all practicality, something that's never going to occur for a repeat offender, that they're going to get a suspended sentence. So, this is something just to ensure that the suspended sentence doesn't occur. And the court of appeals has said that it's not a good idea; they want to make sure that people have to pay the price for breaking a law more than once and pay a significant price. And most judges would, that I've seen, do sentencing (indisc.-- coughing) suspended imposition of sentence, particularly not for a second assault." Number 1455 REPRESENTATIVE ROKEBERG requested clarification about what assault in the fourth degree is, stating his understanding that assault can occur without touching another person, whereas battery occurs when the person is touched. CHAIRMAN GREEN noted that Superior Court Judge Michael Wolverton was in the audience. REPRESENTATIVE BERKOWITZ said that assault is when a person either causes a physical injury or puts someone in fear of physical injury. There is no `battery' in the criminal code. REPRESENTATIVE ROKEBERG and REPRESENTATIVE CROFT said, "In Alaska." REPRESENTATIVE BERKOWITZ added, "Assault sweeps in both." REPRESENTATIVE ROKEBERG suggested that in Alaska, normally the crime is committed if there is actual physical injury. REPRESENTATIVE BERKOWITZ replied, "You can have a fear as well. But it has to be imminent, imminent physical injury." Number 1550 REPRESENTATIVE DYSON said, "Domestic violence cases are not a `slam dunk' when they go before the judge. And the difficulty is always in proof. And oftentimes, there are no witnesses. And so, unless there's physical evidence and it has been substantiated, the case has to be proved. And it's not going to be just on the word of the victim. Police officers who respond will say, `Yeah, there's blood dripping out of the corner of her mouth and a hand print on the side of her face and the furniture was upset ... and so on. Just the yelling -- and unless there's a witness that not only hears it but sees ... that a reasonable person would have been intimidated and terrified, probably not going to get a conviction. A repeat offender, lots of these sorts of things, and the court will take that into account." Number 1610 REPRESENTATIVE BERKOWITZ said there are some techniques, which he believes have come primarily out of San Diego, for prosecuting cases. It is quite common for victims to recant the accusation of domestic violence. He stated, "And we're getting more and more success in being able to prosecute just on the say-so of the victim, even if it's done initially and ... there's not much physical evidence to go along with (indisc.--coughing) because the techniques for the prosecutor's side are becoming so well- developed." Number 1635 REPRESENTATIVE PORTER added, "I guess to further allay the Representative's concern, one of the few exceptions to the laws of arrest as relates to misdemeanors is involved in domestic violence, where a probable-cause arrest can be made by a police officer seeing the kind of scene that Representative Dyson just described, whereas previously, unless they actually saw the assault occur, they were required to rely on a private person's arrest from the victim, which oftentimes was not forthcoming because of the fear of the whole situation. But now the officer can make that arrest on probable cause. And as a matter of fact, a bill just passed that will now allow previous acts to be used as evidence in the trial." Number 1697 BARBARA BRINK, Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. She thanked Representative Porter especially for mentioning unintended consequences. She stated, "Normally, a judge always takes into account whether or not a person has a prior conviction for a crime similar to the one ... before them and will ratchet up the penalty, as this bill is intended to do. The problem with making mandatory minimum sentences: that you remove the judge's ability to fashion an appropriate punishment, given a whole range of different things the judge is supposed to think about. The judge thinks about the seriousness of the harm, the rehabilitation potential of the defendant, and the deterrent value and reaffirmation of societal norms. When you remove that power from the judge, you get sentences that you will find aren't appropriate, given those particular circumstances." MS. BRINK continued, "Essentially, those mandatory minimums create anomalies in the overall sentencing schemes. Normally in assault cases, we take into account not just the character of the crime but what the person's intention was, whether a weapon was involved or not, whether there was actual touching or injury, and the seriousness of that injury. If you take a small class of domestic violence assaults and impose mandatory penalties on just those, they are anomalous in the overall scheme of things. Those mandatory minimums create an arbitrary nature to the crime, such that a person is much less likely to admit they're at fault or to complicity in that crime." MS. BRINK continued, "For example, a person who is charged with a domestic violence assault, misdemeanors here, for having threatening words with someone, will be required to serve more time in jail than a person who may have been charged with a serious felony offense. Such severe sentences are going to discourage people from admitting their own conduct, because the consequences appear overly-harsh and somewhat arbitrary. When fewer people admit their guilt, more of these cases are going to proceed to jury trial, and I'm here to tell you that those are a far more costly proposition than how most cases are handled today. Number 1798 MS. BRINK continued, "Last year, the state prosecuted over 1,200 domestic assaults. The Municipality of Anchorage alone prosecuted an additional 1,500. The estimates I've gotten from the prosecutors are that a good 30 to 50 percent of those assaults might involve repeat offenders. If an even-small percentage of those go to trial, there are going to be enormous financial repercussions, not only on the public defender but on the prosecutor and the court resources. The financial burden is going to be enormous. We are not able to predict, obviously, how many of these cases are going to go to trial, but as I am trying to be more clear about, in bills that come before you, we will come back and let you know about those unanticipated costs in our supplemental requests." Number 1847 MS. BRINK pointed out one additional unintended consequence. She said she is worried that many people will be discouraged from reporting things to the police. She stated, "Oftentimes, a person in the heat of a situation who's got a little training about domestic violence, who knows how to protect themselves, will call the police, even if all they want is the other person removed from the scene. And the police are very good about doing that. But once the word gets out that this person is then going to be placed in a mandatory jail situation, they are going to go away for 30 days or 60 days, I'm worried that victims will be discouraged from calling the police because they know about these hard consequences." MS. BRINK continued, "At the last hearing, Representative Ivan noted lots of cases in his own district where after the dust had settled, the person will go back to the judge and ask for that person to be released because they have no ability to get wood, they have no ability to get water; the basic needs of that entire family are dependent on this person who, yes, may have committed a crime. But jumping to the next conclusion that mandatory jail time is appropriate can actually cause detriment to the victim as well as the perpetrator." Number 1893 REPRESENTATIVE JEANNETTE JAMES said she understood that to be correct. The whole idea of domestic violence is frustrating to her. Until the victims are strong and can stand up, it will never be solved. Being easy on perpetrators isn't necessarily the way to go. "And we really do need to help these people to be strong and find out there's other alternatives besides getting that person out of jail," she concluded. Number 1924 REPRESENTATIVE ROKEBERG acknowledged that there is no dollar amount for the fiscal note because of the difficulty in making an estimate. He said that doesn't seem to deter the Administration from making estimates in other bills. He asked why there is a basically neutral fiscal note if there will be a significant burden. MS. BRINK replied, "What we tried to do is to base our fiscal note on actual numbers. We often get those numbers from the Department of Public Safety and the Department of Law, where they can tell by the nature of just the charge. Most often, when we include dollar figures in our fiscal notes, it's because they can give us concrete numbers of that type of case, which will increase. While ... this type of bill won't increase the number of cases, it will simply increase how those cases are resolved. And so, when the uncertainty is ... how many cases will go to trial, we prefer to put -- we prefer to put in a fiscal note that is very certain. And if we can't be that certain, we would prefer to do an (indisc.) fiscal note and just let you know we'll keep track of those consequences, and we may be back before you next year, letting you know what the consequences of that bill were." Number 1988 REPRESENTATIVE ROKEBERG responded, "Just based on the fact that it seems that if the Administration kind of likes a bill, they'll accommodate the bill with a neutral or a fiscal note that generates a supplemental appropriation in the following year's budget, and if they perhaps don't like the bill, ... they'll seem to make those estimates without any compunction about doing it at that time. ... So, I think that's a real problem." REPRESENTATIVE CROFT asked, "Barb, do you like this bill?" Number 2008 MS. BRINK replied, "Through the chair, no, I do not." Number 2013 REPRESENTATIVE PORTER said, "Barbara, recognizing that, let me ask you one question: Would it be a fair statement to say that at least some of your clients that you have dealt with over the years, that found themself in your office after being charged for the first time with a domestic violence charge, that was subsequently found guilty, might be impressed or deterred if he knew that there was an absolute 30-day minimum sentence facing him if there was a repeat?" MS. BRINK answered, "I don't think so. The problem is that domestic violence often is in a very emotionally charged situation. Most of the clients I've encountered charged with this type of crime aren't exercising good judgment or rational thought like that in the heat of the moment. On the other hand, I do think that - the point that you brought out earlier - that on a first offender, giving a significant amount of time to them, that they've actually been in front of the judge on and they know that they have `x' days hanging over their head, that's more real to them than some eventuality if a further crime were to happen. So, I think it is very effective to give a large amount of suspended time to a first offender. I find that's a pretty good motivator, and not only to not commit further crimes but to engage in domestic violence counseling, `male awareness' and those types of programs that actually seek to modify behavior rather than just scare somebody." Number 2078 REPRESENTATIVE PORTER replied, "Just a comment that I believe that's what we're doing. The language in the second- and third- offense minimum sentences, what we're saying is you have the ability to provide a suspended sentence of great proportion if it's appropriate - and in most cases, it is - but with the additional deterrent, if that is effective, I would think that the additional deterrent of - and by the way, you can't talk yourself out of anything less than 30 days for the second offense - would be just that much more additional deterrent. I agree these things don't happen with ... a lot of conscious thought. But one would think that the balance of treatment and the axe over the head ... for a deterrent would be a combination that would serve the best purpose." Number 2123 JAN MacCLARENCE, Abused Women's Aid in Crisis (AWAIC), testified via teleconference from Anchorage. She thanked the committee for concern about domestic violence, which has caused untold pain and hardship in all Alaskan communities. She said she really supports the restriction on calls that a person can make from jail, because they have had a lot of experience at the AWAIC shelter of perpetrators calling and harassing their victims "from their prison cell, so to speak." Anything to try to eliminate that is very much appreciated. MS. MacCLARENCE explained that what they've found is most successful in addressing the behavior of domestic violence perpetrators is forcing them to go to jail for a short time, with the balance of the sentence suspended pending completion of the "male awareness" program, of "batterers intervention." That program has an 85 percent success rate for those who complete it. She said those men who have had a jail sentence and still have a few days of that remaining, who know they'll have to complete it if they don't complete a batterers intervention program, really make some significant changes in their lives. She stated, "They're really motivated. But I wasn't sure whether or not this bill would allow for that alternatives, and I'm concerned about that." CO-CHAIRMAN HUDSON asked whether either sponsor wished to answer that. REPRESENTATIVE DYSON responded, "Absolutely. It still allows for the judge to sentence all kinds of remedial action and supervision, and so on and so forth, and suspend sentence, but he cannot suspend these minimums. And so, the flexibility is still there on the up- side. It limits the flexibility on the down-side. And my experience with people going to the `male awareness'/anger management, they don't want to be there. And if they finally don't get the lesson that there's something for them to learn, you know, it's not going to do them much good. They've got to be an active participant in the program." REPRESENTATIVE DYSON noted that few people enjoy being in jail. He said, "And spending 30 days there is going to make most people say, `I don't want to do this no more.' And then, if there is an addition to that, there's the remedial action with a suspended action, the judge has got a hammer-lock on them. And these irreducible minimums on second offense, ... they're designed to get the person's attention." Number 2251 REPRESENTATIVE BERKOWITZ added that although there is no residential batterers program in Alaska, one day there might be. An unfortunate number of these instances are drug-related or alcohol-related. "And a lot of the residential drug and alcohol programs, I believe the minimum period is 28 days," he said. "And you can get jail-time credit for service in a residential program. Part of the reason we came up with the numbers we did is to accommodate sentences that required residential alcohol treatment. And, hopefully, if we ever develop residential batterers programs, it would be residential batterers programs as well. ... We're not doing this solely to put people in jail. We're doing this in an effort to give people, batterers in particular, the skills or the restraint or the discipline, or whatever you want to call it, to abstain from committing these acts of violence in the future, because it's a question of breaking a cycle. And this is just one way we have of breaking the cycle." Number 2300 REPRESENTATIVE DYSON pointed out that this takes into account the type of offense, with several grades. They were talking about assault in the fourth degree. He stated, "And it takes into account whether it was life-threatening, weapons were involved, and so on and so forth. It's going to be helpful to a victim to know that the person's going to be away for a time. Gets busted, gets convicted and ... only does seven days, ... that's minimum help to a victim, particularly a victim that wants to relocate ... and get their life together, and so on and so forth. It's going to be helpful to know that they're going to be away for a specific length of time. ... Barbara mentioned that people will be reluctant to call the cops, they're just looking for intervention because of the mandatory sentence. I didn't understand the logic trail there. It takes more than calling a cop. You have to file charges ... and appear, as I understand it, ... before you're going to automatically trigger ... the long-term sentence." REPRESENTATIVE DYSON said he rejects the argument that victims should volunteer to get perpetrators out of jail to haul wood. Other options can be provided by neighbors, family and community leaders. And if a perpetrator must haul wood, he doesn't have to live there. He stated, "I do not think people are going to freeze to death in Alaska because we left a wood chopper in the slammer for 30 days." Number 2391 JODI OLMSTEAD testified via teleconference from Anchorage, saying she is from North Pole. She stated, "First of all, we have to add `shes' in there, too. We have a lot of women in jail for domestic violence, and it's not necessarily that they should be there. I think that we have a problem on some of the domestic violence issues. I know there's a lot of massive funding out there for it. It's like the buzzword in social agencies. But it's also something that's not new. It's happened. It's run rampant for years and years and years, and people didn't talk about it; like child abuse and everything else, it's been there." MS. OLMSTEAD continued, "Many people, many women, many men, I think that have gotten into different crimes, it's the direct result of domestic violence. And I don't think that the (indisc.) in the court rooms go back and reflect that. I know a lot of people who have, in Fairbanks, suffered domestic violence, whether it was physical abuse or mental abuse. And now their lives are destroyed because there's never been anywhere for them to go. I've called the shelters; there was ... no one to go help them in jail. I want to know what this money for domestic violence is going for. I would like to see it go all the way back to the cause and effect that anybody's life that domestic violence is a part of, why they are the way they are. We need to help them. And if domestic violence funding is there, we need to help them with that funding. I feel like a lot of the things you talk about, tools that a judge has, we don't have that in Fairbanks. The anger management that we have, there's almost a package deal for child abusers or domestic violence that's handed out, many times not even reaching what the challenges are that the person has or ...." [Ends mid-speech because of tape change.] TAPE 97-78, SIDE B Number 0001 MS. OLMSTEAD said she had a record for domestic violence because she slapped her daughter "on the butt with a hair gel." She stated, "I was pushed to do that by FYS in Fairbanks in order to shake their finger and say, `Now, little girl, you do as your mom says,'and it ended up getting me a domestic violence order because my daughter, her dad and her dad's girlfriend all went to the WICCA [Women in Crisis-Counseling and Assistance] shelter, and they taught them and showed them and walked them through how to make a domestic violence attack against me with paperwork and everything and did it. And a court proceeding happened, and I didn't know it until a year later. Now, I have ... a domestic assault on my record; so, I probably can't carry a gun because I'm pretty dangerous. But my daughter also has one. And I don't like that, a fourth-degree assault." She asked Representative James to address that, indicating it is a "deep, deep, deep issue that has been ignored by a lot of our legislators." Number 0056 REPRESENTATIVE ROKEBERG asked what the consequence was of Ms. Olmstead's conviction and whether her sentence included jail time. MS. OLMSTEAD replied, "No. I played a `Harper Valley PTA' on the DFYS and got the social worker fired. But the domestic violence is on my record." She said she had a nasty record because she just wanted some accountability. She advised caution with "moving ahead in these bills." Number 0106 REPRESENTATIVE BUNDE referred to previous discussion and said, "I think when we look at the incredible sudden escalation of domestic violence, people who are dead don't need any wood carried for them." He said the argument that these people should be allowed out and back in the home to provide a basic service holds no water. Number 0128 REPRESENTATIVE CROFT pointed out that the provision says 30 days if the defendant has been previously convicted of a crime against a person. Number 0151 MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, advised members she was there to represent the Department of Corrections on this bill if there were questions. Number 0161 REPRESENTATIVE ROKEBERG expressed concern about the fiscal note, acknowledging the referral to the House Finance Committee and the difficulty of doing an estimate. He said he'd done some rough numbers and explained his methods. He stated, "Presumably, Anchorage is no different than the rest of the state. So, you use the 30 percent figure; that's 840 times 30 days times $100; there's $2.5 million. Now, obviously, many of these people are already in the system and have been convicted and are serving some time; there's no question about that. So, these are just the worst-case numbers here ... and they're overstated grossly, the ones I just added. But, I mean, this is a concern I have that there's got to be a significant fiscal impact from this legislation. And I'd just like to have your comments." Number 0219 MS. KNUTH responded, "The explanation is that the fiscal note reflects an increase in costs associated with the bill. And as far as we're able to determine, these people are already getting sentences for these offenses that approximate the mandatory minimum imposed by the bill. And there is some guesswork involved. We don't have perfect record-keeping, especially when it comes to domestic violence, because it's listed within the assault IV category. We don't have a separate crime that we can track domestic violence assault. But as far as we're able to determine, these people are already serving approximately the same sentence; and so, we're not able to put in a fiscal note for all of the time that's already being served by these people." REPRESENTATIVE ROKEBERG said he understood that and appreciated the difficulty of coming up with a figure right now. He commented, "I mean, even by your own note, you know, assuming ... only the 834, you've got a $87,000-a-day cost." MS. KNUTH responded, "They're doing that amount of time for the new offense already. ... Suppose that on a second or a third domestic violence, they were getting 10 or 15 days, and this was increasing it to 30, to 60. Then, for the difference between the 10 and the 30, we could submit a note. But if for the second offense, the judge is already giving them 30 and that's what they're going to get under this bill, there's no impact by the bill that we're able to ascertain. ... We'd love to put a fiscal note in ...." REPRESENTATIVE ROKEBERG said it appears they know there is a fiscal impact but can't put a finger on it. He suggested some estimates may be appropriate, so that people can understand that it is not a no-cost situation. He clarified that he fully supports "the concept of very hard enforcement of our domestic violence statute" and that in no way was his questioning meant to undermine that commitment. Number 0324 REPRESENTATIVE JAMES referred to Ms. Knuth's comment about not being able to sort out domestic violence from other charges. She noted that the technology is available. She asked whether anything is brewing that would provide a better handle on the various kinds of cases. MS. KNUTH said she did not know. She suggested Ms. Carpeneti of the Department of Law's Criminal Division, who was present, may know. Number 0354 REPRESENTATIVE PORTER stated, "I can answer that question. The uniform reporting system of the law enforcement agencies has been capturing that information for the last several years. As soon as the automated system is complete that ties one subject all the way through the system, all of that information in terms of charges and dispositions and sentencing will be available." REPRESENTATIVE CROFT noted that there is a slightly different minimum of 20 days for fourth degree assault in violation of an order. He said, "Now, this ups it some and clarifies it some, but we already had some semblance of 20 days before going to the point of Representative Rokeberg's fiscal note. ... We already had a form of minimum before; this strengthens it and increases it somewhat. But if they were already getting that sentence, it is a true, legitimate, defensible estimate of zero, if they're getting that basically now." Number 0404 REPRESENTATIVE PORTER said he appreciated the recognition that there is no definite way to establish this; it may be nothing, and it may be something. "But I've had fiscal notes in the past that presumed the worst, and ... I think this is a nice, neutral one that is appropriate," he added. CHAIRMAN GREEN commented that the Administration must like it. REPRESENTATIVE ROKEBERG stated, "... If there is an existing 20-day requirement, it seems to be very verifiable. If that's the case, then to add another 10 days on there is going to add some significant bucks. And I would point out that the corrections subcommittee has financed a major computerized system for the Department of Corrections within the last year or so, and I would hope that they get it working right so they can do this stuff easily." Number 0440 REPRESENTATIVE BERKOWITZ pointed out that the existing 20-day mandatory minimum applies only to offenses where there is a domestic violence restraining order in place. CHAIRMAN GREEN suggested that exacerbates the concern that had been brought up. REPRESENTATIVE ROKEBERG made a remark about other legislation and the possible use of soft beds. MS. KNUTH advised members that domestic violence is precisely one of the areas where they will not use soft beds. Those offenders are the most likely to leave the facility and commit another assault. "And sex offenders and domestic violence offenders are two of the ... least-reputable candidates for soft beds," she added. MS. KNUTH stated, "There was a suggestion that a victim must press charges for the case to continue. And ... I think some of the members of the committee are aware that the district attorney's office does not allow victims to dismiss the charges, if you will, because that puts tremendous pressure on them. The perpetrator says, you know, `You've got to get the charges dismissed.' And so, that's a prosecutorial call. And very, very rarely is a victim listened to on that, just to take that out of their (indisc.-- coughing)." Number 0528 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, came forward to testify, saying the council strongly supports the two concepts presented that day. She thanked the sponsors for bringing this forward. She said the state has been working hard, for a long period of time, to make the criminal and civil justice systems more responsive to issues relating to domestic violence and sexual assault. "We're working very hard to increase the safety of victims while holding offenders accountable," she stated. "And we see that this bill does go a long way in helping to sustain that." MS. ANDREEN said the first issue came as a bit of a surprise, the one that would prohibit an alleged offender from contacting the victim with his one phone call. She stated, "I received a phone call from a police officer about three months ago who said, `Hey, we've got a problem here. In the last few weeks, we've had two domestic violence perpetrators, as soon as we've gotten them to the jailhouse, they have demanded their phone call and tried to call the victim.'" In those cases, the system set up is that the officer actually dials the phone. Ms. Andreen stated, "So, they were able to take care of it at that point, and they said, `Well, okay, let's take a look at this.'" She said it is a problem, and she mentioned earlier testimony by Ms. MacClarence. "So, I think it is important that we intervene, that the state intervenes, at the beginning of that, that part of the intimidation process that batterers are perpetuating," she added. Number 0610 MS. ANDREEN referred to the second part, increased jail-time sentences for repeat offenders. She stated, "And there's a couple of points that I'd like to make in terms of this, that I know not so much from a legal or statistical standpoint as I do from an anecdotal standpoint of working in this field for so many years. Most domestic violence ends up being charged at a fourth degree misdemeanant assault level. Most of it ends up being a conviction, if there is a conviction, at an even lower level than that. So, when we in the field are talking about a fourth degree assault conviction, we're talking about something that is like the high end of what actually happens." MS. ANDREEN continued, "We also know that by the time a ... fourth degree assault conviction ... is obtained, that usually the batterer has an extensive history of controlling behaviors, of violence, of abuse, of this cycle that goes on and on, before they even actually get in touch with the criminal justice system. We have seen, for a number of years, that domestic violence seems to be treated differently from other crimes. And for ... some reasons, it should be. But what we are concerned about is in the past, there has been a tendency to look at it as a family problem, as something that occurs in the heat of passion, that it's an emotional outburst and not the criminal action that it actually is. Therefore, the council does strongly support the increased sentence, imprisonment time for second- and third-time offenders who are convicted of fourth degree assault. Also, as has been said, we agree and feel that it's important to acknowledge that additional jail time should not, cannot, circumvent the other types of sanctions that are available to the court systems, and (indisc.) that that would continue." Number 0687 CHAIRMAN GREEN said he could understand a reaction one time; however, the second and third times would certainly indicate lack of control and a pattern. He asked whether judges ever take that into consideration, and he suggested that statistically, it is probably borne out. MS. ANDREEN replied, "Mr. Chairman, I think that how judges respond to that really varies from judge to judge and from community to community. I have heard of a number of judges who do look at it and take it very seriously. I have also heard of, I think, too many stories where there continue to have been in the past SISs, suspended imposition of sentences, even for second- and third-time (indisc.)." Number 0730 REPRESENTATIVE JAMES expressed her opinion that with driving while under the influence (DWI) cases and domestic violence charges, by the time there is a charge, that is not the first time the person has offended. She believes there usually is a prior history. She asked whether Ms. Andreen knew of any case where there has been a domestic violence charge but no previous history or evidence of it. Number 0755 MS. ANDREEN said she needed to pause and think back. CHAIRMAN GREEN suggested it must be pretty rare. MS. ANDREEN responded that it is very rare. REPRESENTATIVE JAMES stated her understanding that it is very rare that there would be a situation serious enough to result in a call for help which would be the first occasion that had happened in that family. MS. ANDREEN replied that she was starting to think of a few instances where that did happen. They've found, and research indicates, that the level of violence, abuse and coercive behavior generally escalates over a period of time. Many times, the victim ends the relationship. The perpetrator then gets into a new relationship, but rather than having the violence and abuse start at the bottom of the continuum and escalate again, it will "jump over." Ms. Andreen said she was thinking of cases where she'd talked to victims or heard of them saying that this behavior seemed to come out of the clear blue. In those cases, victim advocate staff have asked whether the victim knows of the perpetrator's prior relationships; that way, they've been able to track that it isn't out of the clear blue. REPRESENTATIVE JAMES said she understood, but it still confirmed her own belief. Number 0831 LAURIE HUGONIN, Executive Director, Alaska Network on Violence and Sexual Assault, came forward to testify, saying the network is supportive of the bill. She expressed appreciation for the level of discussion that afternoon, which indicated they are taking the problem very seriously. MS. HUGONIN agreed with the speakers who talked about not using the excuse of "I need this financial support or I need this wood" as a way to not have people serve time. She explained, "The network strongly believes that we're moving toward a community response to domestic violence. And it's other people in the community who need to step forward and say, `I'll get that for you,' and take some responsibility to help the victim and the family be able to navigate toward a peaceful existence without the perpetrator, that perpetrators do need to be held accountable for their actions and pay the consequences to those." MS. HUGONIN also commented on the concern that maybe this is a crime in the heat of passion. Several studies done throughout the years, particularly in the early 1990s, show that batterers choose to practice "targeted hitting." Studies show that even when drunk, perpetrators chose where to hit on the body, consciously making that effort so that their marks wouldn't be seen the next day or be visible. "There's also calculated isolation that goes on," she stated, "It's a progressive kind of criminal activity. And so, ... it is often methodical and thought-out, and not just something that happens on the spur of the moment." MS. HUGONIN noted that it is a strong public policy statement to say offenders will be held accountable. Throughout the years, the legislature has been responsive to the needs of domestic violence and sexual assault victims, "in trying to craft legislation that will ensure the best protection possible." She concluded, "And we believe this piece of legislation fits in to that category and would urge your support." Number 1007 CHAIRMAN GREEN noted that everyone who had signed up to testify had done so. He asked whether any of the three superior court judges in the audience would care to comment. He noted that there were three amendments. He advised members they needed to adopt version 0-LS0450\K, Luckhaupt, 4/28/97, as a work draft. REPRESENTATIVE JAMES said, "So moved." CHAIRMAN GREEN asked whether there was any objection. There being none, that version was before the committee. REPRESENTATIVE BERKOWITZ offered Amendment 1, which read [original punctuation retained]: Page 2, line 4; Following "18.66.180", insert "or AS 12.30.025 - 12.30.027" REPRESENTATIVE BERKOWITZ said Amendment 1 clarifies that a domestic violence fourth degree assault is not solely in response to the victim's going out and getting a court order. It can also be for a spontaneous court order, particularly after a condition of bail. "And what this adds is a court-ordered no-contact at bail," he explained. "So, a defendant gets arrested on, for example, a first assault charge. `Do not contact the victim' is a condition of bail. If the defendant contacts the -- or assaults the victim under those circumstances, with this provision, it is designed ...." CHAIRMAN GREEN said, "That would then move it into a second ...." REPRESENTATIVE BERKOWITZ responded, "That would make it -- that second -- well, make that particular assault subject to assault in the -- the first assault under that provision, because it's contemporaneous, prior to sentencing." CHAIRMAN GREEN asked whether there were questions or any objection. There being no objection, Amendment 1 was adopted. REPRESENTATIVE BERKOWITZ offered Amendment 2, which read [original capitalization and punctuation retained]: Page 2, line 1; Following line 1 insert, "Sec. 2. AS 12.25.150 is amended by adding a new subsection to read: (e) A person is guilty of a class B misdemeanor if the person is a prisoner who, in exercising a right granted under (b) of this section, communicates or attempts to communicate with the alleged victim of the crime that was the basis of the prisoner's arrest." renumber following sections accordingly REPRESENTATIVE BERKOWITZ explained that Amendment 2 is in response to an oversight. They'd prohibited the telephone call but hadn't stated the consequence. Therefore, this says the consequence of making that prohibited telephone call is a B misdemeanor, the lowest level of crime available to which jail time attaches. CHAIRMAN GREEN asked whether there was an objection to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE BERKOWITZ offered Amendment 3, which read [original punctuation provided]: Page 3, line 25; Preceding "or", delete "10", insert "5" REPRESENTATIVE BERKOWITZ explained, "It's another mop-up. I believe the involved departments felt that ten years is too long a period of time, and they suggested revising it down to five years. If someone's been clean for five years, that would work." REPRESENTATIVE ROKEBERG objected for the purpose of discussion. REPRESENTATIVE BERKOWITZ explained, "If you're counting the priors, they don't want to go back ten years; they just want to go back five years." Number 1173 REPRESENTATIVE ROKEBERG removed his objection. CHAIRMAN GREEN asked whether there was any further objection. There being none, Amendment 3 was adopted. Number 1197 REPRESENTATIVE DYSON said he is convinced from his experience that virtually everyone can find the self-control needed to deal with emotions if the stakes are high enough. He stated, "Two years ago, I buried my uncle at the age of 84. He had, by the time he was 25, whipped every man within a 35- or 40-mile radius. When he was 79 years old, he was still terrorizing people and terrorized his son- in-law and my cousin, and his ... son-in-law was in a truck, but he took off running. When my aunt was 18, she graduated from high school, working on a threshing crew, invalid father that was depending on her for support. And she thought, `Life doesn't look very good.' She scanned the horizon, saw my uncle that was heir- apparent to a lot of land and a lot of cattle, went after it. People said, `Louella (ph), you're going to do this, be careful, because he's got a terrible temper and he'll hurt you. And she married him. And people told her, ... `Whatever you do, don't ever talk back to him 'cause he'll hurt you.'" REPRESENTATIVE DYSON continued, "They'd been married two weeks. She said something and he decked her. She sat up and said, `Ralph, if you ever touch me again, you're going to jail and I'll have the farm.' And they lived together for another 65 years and he never touched her. He still whipped everybody else in the county that he could. And we're hoping that we can finally get to the point where people will say, `Wait a minute. The penalties here, for not exercising the self-control that I believe everybody has if they want it, will get their attention." Number 1294 REPRESENTATIVE JAMES mentioned the need to teach small children to have assertive behavior, saying that is one thing they can do to help most with this problem. She made a motion to move HB 245 (0- LS0450\K, Luckhaupt, 4/28/97), as amended, from committee with individual recommendations and attached zero fiscal note. CHAIRMAN GREEN asked whether there was any objection. REPRESENTATIVE BUNDE commented that he would support the bill only because no one would allow him to use the permanent solution from the recent movie, "Sling Blade." CHAIRMAN GREEN, noting that there was no objection, announced that CSHB 245(JUD) was moved from the House Judiciary Standing Committee. HB 16 - JUVENILE DELINQUENCY PROCEDURES CHAIRMAN GREEN announced the next item of business would be House Bill No. 16, "An Act relating to delinquent minors, to the taking of action based on the alleged criminal misconduct of certain minors, to the services to be provided to the victims of criminal misconduct of minors, and to agency records involving minors alleged to be delinquent based on their criminal misconduct; and amending Rule 19 and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska Delinquency Rules." Number 1384 BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly, presented the bill on behalf of the sponsor. He specified that he was addressing version 0-LS0121\Q, a proposed committee substitute containing a few small changes from CSHB 16(HES). MR. CAMPBELL said HB 16 has a number of tools resulting largely from recommendations of the Governor's conference on juvenile crime. It brings a number of issues to the statutes that authorize municipalities to bring minors before civil court. He stated, "It brings in additional assistance for a witness, ... additional assistance for victims. Its largest single provision is dual sentencing of serious juvenile offenders. As we bring in and get communities more involved in the entire juvenile justice process, we clean up and offer the courts some additional community service opportunities. We increase and improve communication between the Health and Social Services and law enforcement. We clarify some of the roles between the Department of Health and Social Services and law enforcement agencies, and we increase communication between the Department of Health and Social Services and public officials." MR. CAMPBELL said probably the single most complex part of the bill is the dual sentencing provision. Dual sentencing allows the district attorney to go first before a grand jury; if he obtains a grand jury indictment, he goes before a judge and may ask for a two-part sentence: a juvenile sentence and an adult sentence. The latter must include some unsuspended jail time. It then behooves the minor to comply with the juvenile sentence, going through juvenile treatment programs. And if the minor fails in that regard, particularly if he or she reoffends, the adult sentence kicks in and the minor is remanded to adult corrections. The advantage is that much of the onus is on the minor. REPRESENTATIVE CROFT asked, "Did you say `unsuspended,' or can the adult sentence be completely suspended as an enforcement tool for the juvenile part? That is, do you have to send them to adult corrections as part of it?" Number 1554 MR. CAMPBELL referred to page 12, lines 10 through 12. He said in order for this to work, the adult sentence "must include some period of imprisonment that is not suspended by the court." REPRESENTATIVE CROFT said he understood the "hammer," the threat of this and why it would be a good idea. However, he wanted to know why it is a good idea to send a minor who they hope will be rehabilitated to adult corrections. REPRESENTATIVE PORTER said there has to be a portion of the adult sentence that is not instituted and that has jail time. "He or she is sentenced under the juvenile sentence with this whole adult sentence over his head, which includes some mandatory minimum jail time," he stated. REPRESENTATIVE CROFT said, "So, there must be some suspended portion of the adult, not unsuspended." MR. CAMPBELL responded, "Yes, ... I think there's merely confusion on how we're getting to the same conclusion. The entire adult sentence is ... held in abeyance, and none of that sentence goes into effect unless the minor triggers it with further behavior." REPRESENTATIVE BUNDE commented that there has to be a portion that is unsuspended; there still has to be some jail time in the adult sentence. He then made a motion to adopt as a work draft version 0-LS0121\Q, Chenoweth, 5/1/97. CHAIRMAN GREEN asked whether there was an objection. There being none, that version was before the committee. MR. CAMPBELL advised members that he had a chart explaining dual sentencing. The district attorney goes before the grand jury. If the grand jury reads out a true bill, it goes to court. The court orders juvenile treatment, and it orders the adult jail time. But the adult jail time does not kick in unless the minor has a new offense, for which specific offenses apply, or unless the minor fails to comply with specific terms of that juvenile treatment, "at which time they go back to court with another petition, and the court then can order the ... adult jail time." REPRESENTATIVE CROFT asked, "Can or must?" MARGOT KNUTH replied, "It's a `can.'" Number 1783 BARBARA BRINK, Director, Public Defender Agency, Department of Administration, testified again via teleconference from Anchorage. She pointed out that this bill is complicated. She stated, "To address the first question that's come up, I agree with I believe it was Representative Croft that was concerned that if a child is referred to the adult system, they then must serve jail time. That is correct. As I read page 12, line 12, the sentence pronounced in the adult court, whether or not initially imposed, must include some period of imprisonment that's not suspended by the court. This is illustrative of a lot of the problems I'm concerned about with this bill, is that you are going to be treating 13-, 14- and 15-year-olds much more harshly than you are treating adults. An adult who is referred to adult jail or court on ... some of those types of felonies may not, in fact, have to do jail time. So, I'm very concerned about page 12, line 12, and think that we should reword that to leave the ultimate discretion to the judge." MS. BRINK indicated her general concern about this bill is the assumption that treating children as adults is a more effective system. She stated, "There are (indisc.--coughing) today that exist, that show that treating kids more like adults is effective. Other states have been trying this dual jurisdiction, but nobody has been doing it long enough so that we have any information that it's any more successful. In fact, many studies have shown that McLaughlin [Youth Center] has a higher success rate than many other states in dealing with (indisc.) juvenile offenders." MS. BRINK said she had just read a bulletin by the Department of Justice, which concludes that juvenile arrests for violent crimes declined in 1995 for the first time in nearly a decade. The bulletin goes on to say, most encouraging, that this decline was greatest among younger juveniles. This promising turnabout should temper recent forecasts of an epidemic of violent juvenile crime. Ms. Brink stated, "So, my concern has to do with treating 13-, 14,- and 15-year olds like grownups when they don't have the ability or adjustment to function like grownups." MS. BRINK said there are other problems with the bill. It "expands the elimination of juvenile confidentiality." It also expands the reasons for which a police officer can arrest a juvenile, so that they can be arrested for things for which adults can't be arrested. She stated, "And there are innumerable other issues within the juvenile jurisdiction, including the broad language on how juveniles can get to adult court. And I would really like to see some work done on this bill to tighten that up, to make it not so easy to send a kid to `the big house.' Thank you." CHAIRMAN GREEN requested that Ms. Brink submit her comments in writing, to which she agreed. Number 1988 JODY OLMSTEAD testified again via teleconference from Anchorage. She said this bill brings to mind a juvenile from Fairbanks who is currently in the system; the juvenile was a foster-care child who was involved in a robbery involving a gun. The people who had been with him, who had enticed him to do this, had robbed a gun from their own family, and they were adults. The boy sat in jail at the Fairbanks youth facility for almost three years without being sentenced or rehabilitation. He then was sent over to the "FCC." They realized they had "not quite made the confidentiality of juvenile records right for him to be over there; so, they broke confidentiality and had to ship him back over to FYF." MS. OLMSTEAD said they then let this juvenile out of jail, never having sentenced him, "never having done anything." Ms. Olmstead said he'd worked with Hospice for community service and was doing a wonderful job with an elderly person. In addition, he was working at Denny's, where they gave him high recommendations. At that point, "they contacted him, took him to court and gave him three years, after he had done all of these different things and was really happy on the outside." MS. OLMSTEAD said they then decided to take him to a facility by Seward, perhaps Willow Wood (ph). "And on the way there, they dropped him at Spring Creek, which is not a place for juveniles," she said. "And there he sits today." She said she hopes he doesn't have any problems with prison rape, and she indicated the person discussed in the Fairbanks newspaper is this particular child. She indicated he's angry, he's in with hard-core criminals, and his life is ruined. She stated, "Yes, he made a choice, and he's all for doing his time. But you're putting some kids in some pretty stiff situations, and as the former speaker said, you're doing more to juveniles than you are to the adults. And we want our kids ... not to be criminals. But for God's sakes, they can be accountable with community service and different things that can work. Thanks." CHAIRMAN GREEN said that is a pretty gruesome picture. Number 2200 REPRESENTATIVE JAMES said she appreciated having that story brought to their attention. She suggested considering it as a failed system, not necessarily the failed law but the operation of the law. Certainly, a lot of errors were made that need to be rectified. Number 2231 BRANT McGEE, Public Advocate, Office of Public Advocacy (OPA), Department of Administration, testified via teleconference from Anchorage, specifying that he is the director for the OPA. He stated, "Barb Brink has informed me that their concerns regarding this bill are encapsulated in the fiscal note that should have been submitted to it, which should be available to the committee at this time. My own fiscal note is attached, as well, and contains a summary of some of the concerns. To pick up on Ms. Brink's testimony, I would note that on page 13, in the middle of the page, starting at line 14, it lists ... that conduct by juveniles, who could be as young as 13 years old, I would remind the committee, ... which would automatically trigger the imposition of an adult jail sentence. That includes failing to pay restitution or failure to engage in or complete their rehab program ... required ... by a facility or a juvenile probation officer. In other words, you can send a 13-year-old to jail because he doesn't comply with the demand of a juvenile probation officer, instead of, as it is in adult court, instead of complying with a court order." Number 2342 MR. McGEE said he was, frankly, stunned that they were discussing a bill under which an adult jail term could be imposed upon a 13- year-old; he believes there is no question that would happen under this bill. He said part of his problem from the fiscal standpoint is that he has been unable to locate in the bill any encouragement whatsoever for a kid in this situation, who is charged with a serious offense that would trigger dual sentencing, to plead guilty, to own up, and to take personal responsibility for a crime for which he could ultimately be sent to an adult institution. For that reason, Mr. McGee believes there will be a significant cost in the mere processing of these cases. TAPE 97-79, SIDE A Number 0006 MR. CAMPBELL said [begins mid-speech], "... option into a juvenile justice system. Currently, we waive kids right straight to adult ... court, right straight to adult jail. This gives a system where we are able to give the prosecutor the option of attaining a juvenile treatment sentence for those more serious crimes. ... As I understand it, they do not actually have to go to the full waiver-into-adult-court process. ... So, we may be having fewer kids in adult corrections with this bill." Number 0051 REPRESENTATIVE PORTER explained that there are two kinds of waivers. First is the automatic waiver of juveniles committing very serious crimes; those juveniles are 16 and 17 years old. "Then there is the ability, enhanced by that same bill, to waive other juveniles into adult court if they present the right facts to the court and that court agrees that they may be so-waived," he stated. "This provides an alternative to that. In the cases where the case is serious enough but the minor is not quite old enough or the offense is not quite `categorizable' into the unclassified or class A - against a person - category, that instead of going through the petition process of seeking a waiver, they can seek this dual function and, in some cases, save money, as opposed to -- and, I think, provide one heck of a deterrent (indisc.)." Number 0146 REPRESENTATIVE BUNDE reminded members they weren't talking about some 13-year-old paper boy but a 13-year-old who had been charged with a serious crime. The first time someone's charged isn't the first time they've committed a crime. Just because it's the first time they've been caught and they are 13 years old, it doesn't make them sacred to him. He stated, "Kids aren't stupid. They see the hammer coming, and juvenile crime is going down because people are getting tougher. And I see no reason to back off at this time. We want to encourage the decrease in juvenile crime, not say, `King's X.' So, with that, I would like to move the bill." CHAIRMAN GREEN noted that Margot Knuth was signed up to testify. Number 0218 MARGOT KNUTH from the Department of Law came forward to testify again. She noted that when it comes to 13-, 14- and 15-year-olds, they are only talking about unclassified felonies and class A felonies. She commented, "I mean, this is even above the label of `serious crimes.' These are the very most serious. And it is discretionary with the prosecutor whether to file for dual sentencing at the outset or not. For 15- and 16-year-olds, they could qualify for dual sentencing if they are on repeat felony offenses. Both of these populations, by their conduct, are saying they are at risk of becoming chronic serious offenders and we want to, if you will, be in their face more than under our traditional system." MS. KNUTH continued, "If, however, they comply with the conditions that are imposed, they have the opportunity of staying in the juvenile system, getting their record sealed, and coming back to the fold. But even if they do fail to comply, ... the adult sentence can only be imposed if a petition is filed seeking that. And you will always have prosecutorial discretion on whether to file a petition. There is no automatic imposition of the adult sentence. So, first, somebody has to believe it's serious enough to warrant filing the petition. And then next, ... it's within the court's discretion unless ... what brings the kid back is a subsequent felony offense that's a crime against a person or arson. Only in that very narrow circumstance is it mandatory, once a petition's filed and a finding's made that the new offense was committed, that the adult sentence would be imposed. Otherwise, the court has the discretion whether to keep going down the juvenile track." Ms. Knuth emphasized that the whole point is to try to put the responsibility on the juveniles' shoulders and to provide a deterrent. That is one part of the bill. MS. KNUTH advised members that the other part of the bill is enabling communities to step forward and respond to low-level offenders. "And there are civil penalties provisions, and there are provisions for Health and Social Services to work with nonprofit corporations and municipalities, and a variety of tools, short of creating a criminal record for the juvenile or putting them in detention," she stated. "Just about anything else under the sun is available: community work service, fine, restitution, letters of apology. And both of those extremes, one, the very small group of people that we need to really be on them and the much larger group of people that we need to help make sure there are some consequences for the low-level offenses -- so, that's what this bill does." Number 0408 CHAIRMAN GREEN said, "It sounds like actually both ends of that are probably pretty effective." Number 0432 REPRESENTATIVE ROKEBERG referred to the fiscal note, which says that based on the entry of just three juveniles per annum, it "creates about $115,000." MS. KNUTH said that sounds correct. REPRESENTATIVE ROKEBERG asked whether Ms. Knuth was involved in development of that fiscal note. MS. KNUTH indicated she'd been involved with the Department of Health and Social Services and the district attorneys' offices in figuring out "how many kids we actually expect ... to go through." REPRESENTATIVE ROKEBERG commented, "I suspect that this note has some statistics, because you have been tracking this, as I know, for the Governor's office and (indisc.)." MS. KNUTH affirmed that. REPRESENTATIVE ROKEBERG said, "So that, if you're looking at five years from now, we've got almost $600,000 a year because of what would be approximately 18 people entering the corrections system as a result, on the estimate, on three a year. Is that ....?" Number 0501 MS. KNUTH replied, "I hope that not all of those 18 are still going to be in the system five years from now. I hope that the ones that are going in this year are coming out before that five years elapses." REPRESENTATIVE ROKEBERG asked whether that was how she'd arrived at that number. MS. KNUTH said yes. Number 0525 REPRESENTATIVE BERKOWITZ stated, "I'd just point out that for these people, that amount would be offset by reduction to a contribution to the foundation formula." MS. KNUTH said, "Not to mention Johnson Service Center." REPRESENTATIVE CROFT referred to page 12, lines 11 through 12, and noted that there was concern about that and that it confused him. Number 0620 MS. KNUTH explained, "What's going on in (2) is simply the pronouncement of the sentence. It's not the imposition of a sentence. The concern was when you're pronouncing the sentence, that when it does come time to impose it, ... you will not be able to impose anything more than what you pronounced. So, if at the outset you pronounced an entirely suspended sentence, if you ever got to the circumstance where you wanted to impose the adult sentence, you wouldn't be able to do anything because you had suspended it all up-front, ... until you got to a petition-to- revoke-probation point. And so, this is to create the situation where [an] adult sentence could include jail time when it is imposed." Number 0680 REPRESENTATIVE JAMES made a motion to move HB 16, version 0- LS0121\Q, from committee with attached fiscal notes and individual recommendations. CHAIRMAN GREEN asked whether there was an objection. Hearing none, he announced that CSHB 16(JUD) was moved from the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN GREEN then adjourned the House Judiciary Standing Committee meeting.