Legislature(1999 - 2000)

04/14/1999 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 14, 1999                                                                                               
                     1:20 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
CONFIRMATION HEARING                                                                                                            
                                                                                                                                
BOARD OF GOVERNORS OF THE ALASKA BAR                                                                                            
                                                                                                                                
     Barbara Miklos - Anchorage                                                                                                 
                                                                                                                                
     - CONFIRMATION ADVANCED                                                                                                    
                                                                                                                                
HOUSE BILL NO. 34                                                                                                               
"An Act relating to the crime of misprision of a crime against a                                                                
child."                                                                                                                         
                                                                                                                                
     - MOVED NEW CSHB 34(JUD) OUT OF COMMITTEE                                                                                  
                                                                                                                                
* HOUSE BILL NO. 99                                                                                                             
"An Act relating to sexual assault and the definitions of 'sexual                                                               
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."                                                                 
                                                                                                                                
     - MOVED HB 99 OUT OF COMMITTEE                                                                                             
                                                                                                                                
* HOUSE BILL NO. 75                                                                                                             
"An Act relating to murder; authorizing capital punishment,                                                                     
classifying murder in the first degree as a capital felony, and                                                                 
allowing the imposition of the death penalty when certain of those                                                              
murders are committed against children; establishing sentencing                                                                 
procedures for capital felonies; and amending Rules 32, 32.1, and                                                               
32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210,                                                              
and 212, Alaska Rules of Appellate Procedure."                                                                                  
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
CS FOR SENATE BILL NO. 57(FIN)                                                                                                  
"An Act relating to vulnerable adults; and providing for an                                                                     
effective date."                                                                                                                
                                                                                                                                
     - MOVED HCS CSSB 57(JUD) OUT OF COMMITTEE                                                                                  
                                                                                                                                
HOUSE BILL NO. 147                                                                                                              
"An Act relating to vulnerable adults; and providing for an                                                                     
effective date."                                                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
* HOUSE BILL NO. 176                                                                                                            
"An Act relating to attorney fees and costs and the granting of                                                                 
public interest litigant status in proceedings related to                                                                       
administrative actions and inactions; and amending Rules 79 and 82,                                                             
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of                                                                  
Appellate Procedure."                                                                                                           
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB  34                                                                                                                    
SHORT TITLE: REPORTING CRIMES AGAINST CHILDREN                                                                                  
SPONSOR(S): REPRESENTATIVES(S) DYSON                                                                                            
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/19/99        27     (H)  PREFILE RELEASED 1/8/99                                                                             
 1/19/99        27     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/19/99        27     (H)  JUDICIARY                                                                                           
 4/07/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/07/99               (H)  HEARD AND HELD/SUBCOMMITTEE                                                                         
 4/07/99               (H)  MINUTE(JUD)                                                                                         
 4/08/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/08/99               (H)  HEARD AND HELD                                                                                      
 4/08/99               (H)  MINUTE(JUD)                                                                                         
 4/09/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/09/99               (H)  MOVED CSHB 34(JUD) OUT OF COMMITTEE                                                                 
 4/09/99               (H)  MINUTE(JUD)                                                                                         
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
                                                                                                                                
BILL: HB  99                                                                                                                    
SHORT TITLE: SEXUAL ASSAULT:  VICTIM IN STATE CUSTODY                                                                           
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/19/99       255     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/19/99       255     (H)  JUDICIARY                                                                                           
 2/19/99       255     (H)  5 ZERO FNS (ADMINISTRATION, COR,                                                                    
                            DHSS, LAW, DPS)                                                                                     
 2/19/99       256     (H)  GOVERNOR'S TRANSMITTAL LETTER                                                                       
 3/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/29/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/07/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/07/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB  75                                                                                                                    
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER                                                                                
SPONSOR(S): REPRESENTATIVES(S) MASEK                                                                                            
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/03/99       131     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/03/99       132     (H)  JUDICIARY, FINANCE                                                                                  
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/14/99               (H)  HEARD AND HELD                                                                                      
 4/14/99               (H)  MINUTE(JUD)                                                                                         
 4/15/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: SB  57                                                                                                                    
SHORT TITLE: CARE FOR VULNERABLE ADULTS                                                                                         
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES                                                                                 
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/08/99       186     (S)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/08/99       186     (S)  HES, JUD                                                                                            
 3/03/99               (S)  HES AT  1:30 PM BUTROVICH ROOM 205                                                                  
 3/03/99               (S)  HEARD AND HELD                                                                                      
 3/03/99               (S)  MINUTE(HES)                                                                                         
 3/08/99               (S)  HES AT  1:30 PM                                                                                     
 3/08/99               (S)  HEARD AND HELD                                                                                      
 3/08/99               (S)  MINUTE(HES)                                                                                         
 3/15/99               (S)  HES AT  1:30 PM BUTROVICH 205                                                                       
 3/15/99               (S)  MOVED OUT OF COMMITTEE                                                                              
 3/15/99               (S)  MINUTE(HES)                                                                                         
 3/16/99       562     (S)  HES RPT  2DP 3NR                                                                                    
 3/16/99       562     (S)  DP: MILLER, WILKEN; NR: PETE KELLY,                                                                 
 3/16/99       562     (S)  PEARCE, ELTON                                                                                       
 3/16/99       562     (S)  ZERO FISCAL NOTE (ADMINISTRATION)                                                                   
 3/24/99               (S)  JUD AT  1:30 PM BELTZ 211                                                                           
 3/24/99               (S)  MOVED CSSB 57(JUD) OUT OF COMMITTEE                                                                 
 3/24/99               (S)  MINUTE(JUD)                                                                                         
 3/29/99       719     (S)  JUD RPT  COMMITTEE SUBSTITUTE  1DP                                                                  
                            3NR  NEW TITLE                                                                                      
 3/29/99       719     (S)  DP: TAYLOR; NR: HALFORD, ELLIS,                                                                     
                            DONLEY                                                                                              
 4/06/99               (S)  FIN AT  6:00 PM SENATE FINANCE 532                                                                  
 4/06/99               (S)  MINUTE(FIN)                                                                                         
 4/06/99       794     (S)  ZERO FISCAL NOTE (ADMINISTRATION)                                                                   
 3/29/99       719     (S)  RPT RECOMMENDED FURTHER REFERRAL TO                                                                 
                            FIN                                                                                                 
 3/29/99       719     (S)  ADDITIONAL REFERRAL TO FIN                                                                          
 4/07/99               (S)  FIN AT  8:00 AM SENATE FINANCE 532                                                                  
 4/07/99               (S)  MOVED COMMITTEE SUBSTITUTE (FIN) OUT                                                                
                            OF COMMITTEE                                                                                        
 4/07/99       804     (S)  FIN RPT  COMMITTEE SUBSTITUTE  8DP                                                                  
                            1NR    SAME TITLE                                                                                   
 4/07/99       804     (S)  DP: TORGERSON, PARNELL, PHILLIPS,                                                                   
                            GREEN,                                                                                              
 4/07/99       804     (S)  ADAMS, LEMAN, WILKEN, PETE KELLY;                                                                   
 4/07/99       804     (S)  NR: DONLEY                                                                                          
 4/07/99       804     (S)  PREVIOUS ZERO FN (ADMINISTRATION) #2                                                                
 4/08/99               (S)  RLS AT 11:40 AM FAHRENKAMP 203                                                                      
 4/08/99               (S)  MINUTE(RLS)                                                                                         
 4/09/99       846     (S)  RULES TO CALENDAR  4/9/99                                                                           
 4/09/99       850     (S)  READ THE SECOND TIME                                                                                
 4/09/99       850     (S)  FIN COMMITTEE SUBSTITUTE ADOPTED                                                                    
                            UNAN CONSENT                                                                                        
 4/09/99       850     (S)  ADVANCED TO THIRD READING UNAN                                                                      
                            CONSENT                                                                                             
 4/09/99       850     (S)  READ THE THIRD TIME  CSSB 57(FIN)                                                                   
 4/09/99       851     (S)  PASSED Y19 N-  E1                                                                                   
 4/09/99       851     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                                                                   
 4/09/99       856     (S)  TRANSMITTED TO (H)                                                                                  
 4/12/99       722     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/12/99       723     (H)  JUD                                                                                                 
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
BARBARA MIKLOS, Appointee                                                                                                       
   to the Board of Governors of the Alaska Bar                                                                                  
3208 Greenland Drive                                                                                                            
Anchorage, Alaska  99517                                                                                                        
Telephone:  (907) 272-4812                                                                                                      
POSITION STATEMENT: Testified as nominee to the Board of Governors                                                              
                    of the Alaska Bar.                                                                                          
                                                                                                                                
CORY WINCHELL, Administrative Assistant                                                                                         
     to Representative Pete Kott                                                                                                
Alaska State Legislature                                                                                                        
Capitol Building, Room 118                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-3777                                                                                                      
POSITION STATEMENT: Presented the new version of HB 34.                                                                         
                                                                                                                                
MARGOT KNUTH, Assistant Attorney General                                                                                        
Office of the Commissioner-Juneau                                                                                               
Department of Corrections                                                                                                       
240 Main Street, Suite 700                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4338                                                                                                      
POSITION STATEMENT: Testified on HB 99.                                                                                         
                                                                                                                                
LAUREE HUGONIN, Director                                                                                                        
Alaska Network on Domestic Violence                                                                                             
   and Sexual Assault                                                                                                           
Department of Public Safety                                                                                                     
130 Seward Street, Room 209                                                                                                     
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 586-3650                                                                                                      
POSITION STATEMENT: Testified on HB 99.                                                                                         
                                                                                                                                
ROBERT BUTTCANE, Juvenile Probation Officer                                                                                     
Youth Corrections                                                                                                               
Division of Family and Youth Services                                                                                           
Department of Health and Social Services                                                                                        
P.O. Box 110630                                                                                                                 
Juneau, Alaska 99811-0630                                                                                                       
Telephone:  (907) 465-2212                                                                                                      
POSITION STATEMENT: Testified in support of HB 99.                                                                              
                                                                                                                                
REPRESENTATIVE MASEK                                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 432                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2679                                                                                                      
POSITION STATEMENT:  Testified as Sponsor of HB 75.                                                                             
                                                                                                                                
REVEREND JAY OLSON KETCHUM                                                                                                      
3820 Delwood Place                                                                                                              
Anchorage, Alaska 99504                                                                                                         
Telephone:  (907) 338-0213                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
DALE KELLEY, Executive Director                                                                                                 
Alaskans Against the Death Penalty;                                                                                             
Council Director                                                                                                                
United Methodist Church in Alaska                                                                                               
4451 DeArmoun Road                                                                                                              
Anchorage, Alaska 99516                                                                                                         
Telephone:  (907) 348-6056                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
WILLIAM DEWEY, Attorney                                                                                                         
1101 West 7th Avenue                                                                                                            
Anchorage, Alaska 99501                                                                                                         
Telephone:  (907) 276-3299                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
FATHER LEO WALSH, Associate Pastor                                                                                              
St. Anthony's Catholic Church;                                                                                                  
President, Innerfaith Council of Anchorage                                                                                      
825 South Klevin                                                                                                                
Anchorage, Alaska 99508                                                                                                         
Telephone:  (907) 333-5544                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
RICH CURTNERS, Attorney                                                                                                         
24506 Teal Loop                                                                                                                 
Chugiak, Alaska 99567                                                                                                           
Telephone:  (907) 688-1002                                                                                                      
POSITION STATEMENT:  Testified that he believed HB 75 will cost                                                                 
                      Alaska a lot of money which could be better                                                               
                      spent to protect children.                                                                                
                                                                                                                                
AMY MENARD, Attorney                                                                                                            
1029 West 3rd Avenue, Number 500                                                                                                
Anchorage, Alaska 99501                                                                                                         
Telephone:  (907) 279-4506                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
MARY GEDDES                                                                                                                     
2521 St. Elias Drive                                                                                                            
Anchorage, Alaska 99517                                                                                                         
Telephone:  (907) 248-3710                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
LISA RIEGER, Attorney                                                                                                           
3318 Illiamna Avenue                                                                                                            
Anchorage, Alaska 99517                                                                                                         
Telephone:  (907) 248-5472                                                                                                      
POSITION STATEMENT:  Testimony in opposition to HB 75 read into the                                                             
                     record by Ms. Geddes.                                                                                      
                                                                                                                                
ARTHUR CURTIS, Minister                                                                                                         
Unitarian Universalist Fellowship                                                                                               
1605 Sitka, Number 203                                                                                                          
Anchorage, Alaska 99501                                                                                                         
Telephone:  (907) 272-7360                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
DENNIS HOLWAY, Pastor                                                                                                           
Turnagain United Methodist Church                                                                                               
3300 West Northern Lights Boulevard                                                                                             
Anchorage, Alaska 99517                                                                                                         
Telephone:  (907) 243-3963                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
CHARLES CAMPBELL                                                                                                                
3020 Douglas Highway                                                                                                            
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 586-5793                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
PHILLIP PALLENBERG                                                                                                              
718 5th Street                                                                                                                  
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 586-1180                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
                                                                                                                                
HUGH FLEISCHER, Executive Board                                                                                                 
Alaska Christian Conference;                                                                                                    
Interfaith Council of Anchorage;                                                                                                
Alaskans Against the Death Penalty                                                                                              
310 K. Street, Number 200                                                                                                       
Anchorage, Alaska 99501                                                                                                         
Telephone:  (907) 264-6635                                                                                                      
POSITION STATEMENT:  Testified in opposition to the death penalty.                                                              
                                                                                                                                
IAN OLSON                                                                                                                       
PO Box 80280                                                                                                                    
Fairbanks, Alaska  99708                                                                                                        
Telephone:  (907) 457-4426                                                                                                      
POSITION STATEMENT:  Discussed the need to be proactive not                                                                     
                       reactive as is HB 75.                                                                                    
                                                                                                                                
CAMI MOLINE                                                                                                                     
12579 Auke Nu Drive                                                                                                             
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 790-5553                                                                                                      
POSITION STATEMENT:  Testified that HB 75 should be put aside.                                                                  
                                                                                                                                
ELLEN CAMPBELL                                                                                                                  
3020 Douglas Highway                                                                                                            
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 586-5793                                                                                                      
POSITION STATEMENT:  Discussed life as a God's gift.                                                                            
                                                                                                                                
SHEILA PETERSON, Legislative Assistant                                                                                          
   to Senator Gary Wilken                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 514                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-3709                                                                                                      
POSITION STATEMENT: Presented sponsor statement for SB 57.                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-30, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:20 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Rokeberg, Murkowski and Croft.                                                                
Representatives James and Kerttula arrived at 1:24 p.m.                                                                         
                                                                                                                                
CONFIRMATION HEARING:  BOARD OF GOVERNORS OF THE ALASKA BAR                                                                     
                                                                                                                                
CHAIRMAN KOTT announced the first order of business is the                                                                      
confirmation hearing of Barbara Miklos to the Board of Governors of                                                             
the Alaska Bar.                                                                                                                 
                                                                                                                                
Number 0115                                                                                                                     
                                                                                                                                
BARBARA MIKLOS, Appointee to the Board of Governors of the Alaska                                                               
Bar, testified via teleconference from Anchorage.  She informed the                                                             
committee that if she was reappointed it would be her second term,                                                              
as she has already served three years on the board.  The most                                                                   
important thing she brings to the board is that she has lived in                                                                
Alaska for many years - Anchorage, Fairbanks and Southeast.  She                                                                
also has traveled all over the state, giving her exposure to many                                                               
areas and their issues.                                                                                                         
                                                                                                                                
Number 0222                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Miklos whether she feels she is                                                               
capable of serving as both appointee to the board and acting                                                                    
director of the Child Support Enforcement Division [Department of                                                               
Revenue], given the significant workload and pressures that come                                                                
from being a director.                                                                                                          
                                                                                                                                
MS. MIKLOS replied that she feels capable.  She pointed out that                                                                
she did miss the last board meeting due to job pressures, but                                                                   
within the last three years she has missed very few meetings.  She                                                              
feels that she has dedicated the time to the board that it deserves                                                             
without her job suffering.  She added that being an appointee to                                                                
the board enriches her life as opposed to detracting from it.                                                                   
                                                                                                                                
Number 0311                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Miklos how often the board meets.                                                             
                                                                                                                                
MS. MIKLOS replied it meets quarterly and the meetings are either                                                               
one or two days long.  She said that she has a couple of projects                                                               
in between meetings, but that the primary time spent on the board                                                               
is at the meetings.                                                                                                             
                                                                                                                                
Number 0419                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN moved to forward the name of Barbara J. Miklos                                                             
to the Board of Governors of the Alaska Bar.  There being no                                                                    
objection, it was so ordered.                                                                                                   
                                                                                                                                
HB 34 - REPORTING CRIMES AGAINST CHILDREN                                                                                       
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 34, "An                                                                
Act relating to the crime of misprision of a crime against a                                                                    
child."                                                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to rescind the prior action                                                               
of reporting CSHB 34(JUD) out of the committee.  There being no                                                                 
objection, it was so moved and before the committee again.                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed                                                                     
committee substitute for HB 34, version 1-LS0241\H, as a work                                                                   
draft.  There being no objection, it was so moved.                                                                              
                                                                                                                                
Number 581                                                                                                                      
                                                                                                                                
CORY WINCHELL, Administrative Assistant to Representative Pete                                                                  
Kott, Alaska State Legislature, explained that in a sort of ad hoc                                                              
subcommittee meeting with Representative Kerttula and Jerry                                                                     
Luckhaupt [Attorney, Legislative Legal Counsel, Legislative Legal                                                               
and Research Services, Legislative Affairs Agency] there was some                                                               
discussion on the problem with the word "attempt."  Mr. Luckhaupt                                                               
mentioned that on page 1, line 10, where it reads, "or a felony                                                                 
attempt to commit one of those crimes," there needs to be more                                                                  
clarification.                                                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT pointed out that in some cases attempt, being                                                              
that it is one level lower than the crime, might actually be a                                                                  
misdemeanor.                                                                                                                    
                                                                                                                                
MR. WINCHELL responded that within the purview of misprision,                                                                   
Representative Kerttula and Mr. Luckhaupt wanted it to be a                                                                     
felonious attempt, and wanted it to be clear so there aren't any                                                                
problems in a prosecution, for example.                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move the proposed                                                                      
committee substitute for HB 34 from the committee with individual                                                               
recommendations and the attached zero fiscal note(s).  There being                                                              
no objection, the new CSHB 34(JUD) was so moved from the House                                                                  
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
CHAIRMAN KOTT called for a brief at-ease at 1:29 p.m. and called                                                                
the committee back to order at 1:31 p.m.                                                                                        
                                                                                                                                
HB 99 - SEXUAL ASSAULT:  VICTIM IN STATE CUSTODY                                                                                
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 99, "An                                                                
Act relating to sexual assault and the definitions of 'sexual                                                                   
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."                                                                 
                                                                                                                                
Number 0746                                                                                                                     
                                                                                                                                
MARGOT KNUTH, Assistant Attorney General, Office of the                                                                         
Commissioner-Juneau, Department of Corrections (DOC), came before                                                               
the committee to testify.  She explained that HB 99 would make it                                                               
a criminal felony for a correctional officer to either engage in                                                                
sexual penetration or sexual contact with an inmate.  There is a                                                                
misperception among the rest of the states that Alaska already                                                                  
prohibits this conduct, but it does not, which puts Alaska in a                                                                 
handful of jurisdictions that have not done so.  There is a                                                                     
resolution that all states should prohibit this conduct, from                                                                   
January 17, 1999, by the Association of State Correctional                                                                      
Administrators, which had unanimous consent; 38 in favor and zero                                                               
opposed.  There is also a congressional measure that was introduced                                                             
this session that would reduce a state's eligibility for sharing of                                                             
federal funds, if they do not have a provision like this as a part                                                              
of their criminal code.  She feels that prohibiting such conduct is                                                             
good public policy, because there can be no such thing as                                                                       
consensual sex with an inmate.  There would always be a disparity                                                               
in power positions between a correctional officer and an inmate.                                                                
Often times, inmates feel that there may be benefits or favors if                                                               
they have sex with a correctional officer.  The inmates also feel                                                               
that they would not be believed if they report an incident.                                                                     
                                                                                                                                
MS. KNUTH further stated that Alaska does not have a significant                                                                
problem with this type of conduct, except for on rare occasions.                                                                
The bill is more of a preventative measure, for good public policy,                                                             
and to keep Alaska from jeopardizing any federal revenue sharing.                                                               
                                                                                                                                
Number 0963                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN wondered whether the states that have gone                                                                 
from not having it as a penalty to having it as a penalty have                                                                  
experienced any inmates claiming misconduct based solely on the                                                                 
fact that they didn't like a correctional officer.                                                                              
                                                                                                                                
MS. KNUTH responded that the circumstance Representative Green is                                                               
referring to has not occurred.                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered whether Ms. Knuth was informing                                                                
the committee that the legislature did not act after the Wionna                                                                 
Fletcher incident.                                                                                                              
                                                                                                                                
Number 1066                                                                                                                     
                                                                                                                                
MS. KNUTH stated that consensual sexual relations are not                                                                       
criminalized in Alaska currently.                                                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Ms. Knuth whether nonconsensual                                                                   
sexual relations are criminal in Alaska.                                                                                        
                                                                                                                                
MS. KNUTH replied that sexual assault in the first, second, and                                                                 
third degrees would all apply against nonconsensual sexual contact.                                                             
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered whether the bill really speaks to                                                              
consensual sexual relations.                                                                                                    
                                                                                                                                
MS. KNUTH replied it speaks to reportedly consensual relations.                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to page 1, line 12, of the bill,                                                               
where it states, "or other placement designated by the commissioner                                                             
of the Department of Corrections," and asked Ms. Knuth whether that                                                             
would include an employee of a community residential center (CRC).                                                              
                                                                                                                                
Number 1139                                                                                                                     
                                                                                                                                
MS. KNUTH replied she believes it would extend to CRC placements.                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG requested clarification on whether a CRC                                                                
facility is by definition a state correctional facility.                                                                        
                                                                                                                                
MS. KNUTH clarified that it is.                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered whether "other placement" was a                                                                
catch-all term in case the offender was someplace else.                                                                         
                                                                                                                                
MS. KNUTH responded that the language in the bill is the same                                                                   
language that is used in the statute referencing where prisoners                                                                
can be placed.  That is why it was chosen when drafting it.  She                                                                
noted that she would be willing to find that information for him.                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG indicated that he just wanted to make sure                                                              
that the other contracted placements were included.                                                                             
                                                                                                                                
MS. KNUTH replied that they are.                                                                                                
                                                                                                                                
Number 1213                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to page 2, Section 3, paragraph                                                                
(3), where it states, "other person committed to the custody of the                                                             
Department of Health and Social Services under AS 47.10 or AS                                                                   
47.12," and asked whether he is correct in assuming that the                                                                    
language refers to juvenile correction facilities.                                                                              
                                                                                                                                
MS. KNUTH responded that is correct.  She noted that Robert                                                                     
Buttcane from the Department of Health and Social Services (DHSS)                                                               
is here to speak on behalf of the department.  The DHSS and DOC are                                                             
trying to make sure that the provisions are parallel so that the                                                                
same protection afforded to adults who are in custody is also                                                                   
afforded to juveniles who are in the state's custody.                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG wondered whether the juvenile correction                                                                
facilities are limited to 19 years of age.                                                                                      
                                                                                                                                
MS. KNUTH deferred the question to the Department of Health and                                                                 
Social Services.                                                                                                                
                                                                                                                                
Number 1305                                                                                                                     
                                                                                                                                
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and                                                               
Sexual Assault (ANDVSA), Department of Public Safety, came before                                                               
the committee to testify.  She stated that the network supports the                                                             
concept of HB 99, but they are concerned that it is limited to                                                                  
third-degree sexual assault.  Sexual penetration is a first-degree                                                              
offense.  It is particularly troublesome to believe that someone                                                                
with authority over a person may only be able to be charged with                                                                
third-degree sexual assault when other people would be charged with                                                             
first-degree sexual assault.  The network understands that there is                                                             
the issue of consent; however, as Ms. Knuth previously stated,                                                                  
people in authority negate a prisoner's ability to give consent.                                                                
The network would appreciate the committee looking at ways to                                                                   
ensure that sexual assault and sexual penetration are able to be                                                                
prosecuted to the fullest extent the law allows, which would be                                                                 
first-degree assault.  The network believes that there may be space                                                             
to amend the sexual assault statute in the first degree in the area                                                             
where there are a couple of elements in the statute, before the                                                                 
authority element, that are coupled with mental incapacity.                                                                     
                                                                                                                                
MS. HUGONIN concluded that the network appreciates the efforts of                                                               
the Department of Corrections and believes that HB 99 is the right                                                              
way to go, but they want to make sure that a correctional officer's                                                             
liability is not limited to only third-degree assault.                                                                          
                                                                                                                                
Number 1400                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Ms. Hugonin whether she would suggest that a                                                                
higher category, such as first-degree assault, be applied to the                                                                
part of the statute that deals with people who are mentally                                                                     
incapable or incapacitated.                                                                                                     
                                                                                                                                
MS. HUGONIN replied it is her understanding that it is first-degree                                                             
assault when there is an authority figure involved.  It is sexual                                                               
penetration that the network is concerned about.                                                                                
                                                                                                                                
REPRESENTATIVE CROFT pointed out that, right now, it is                                                                         
first-degree assault for sexual penetration with a person who is                                                                
mentally incapable and under someone's care, and second-degree                                                                  
assault for sexual contact with a person who is mentally incapable                                                              
and under someone's care, that being the offending party.  He                                                                   
wondered whether that distinction would make sense because of the                                                               
mental incapacity element.  He stated that Ms. Hugonin has touched                                                              
on the care element and the authority element, but not the                                                                      
incapacity element.                                                                                                             
                                                                                                                                
MS. HUGONIN stated if someone is in a position of authority over                                                                
another person then that person is not going to be able to give                                                                 
consent, whether or not they have all their faculties is a mute                                                                 
point.  If someone has sexual penetration with a person and there                                                               
is an authority element involved, that should be considered                                                                     
first-degree sexual assault.                                                                                                    
                                                                                                                                
Number 1508                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT wondered whether the line that says, "mentally                                                             
incapable", should be taken out.                                                                                                
                                                                                                                                
MS. HUGONIN indicated that she would not take it out because there                                                              
might be other circumstances where that needs to be specified.  She                                                             
feels that there is a way to have the authority of a correctional                                                               
officer designated in the first degree.  As it is now, doctors who                                                              
engage in sexual penetration with their patients are designated in                                                              
the first degree, so correctional officers could be put in a                                                                    
category where they are held to a standard of not engaging in                                                                   
sexual penetration with people they have authority over.                                                                        
                                                                                                                                
REPRESENTATIVE CROFT explained, in the doctor example, the patient                                                              
is unaware that a sexual act is being committed.  The difference is                                                             
between sexual assault in the first degree, which is an                                                                         
unclassified felony.  He asked whether it is Ms. Hugonin's opinion                                                              
that a consensual act should be an unclassified felony, rather than                                                             
a class B felony.                                                                                                               
                                                                                                                                
MR. HUGONIN replied yes.  Correctional officers should not be held                                                              
to a lesser standard than the general population, and since they                                                                
are in a position of authority they should be held to the same if                                                               
not higher standard.  Another way to put the question would be, if                                                              
a correctional officer commits sexual assault against an inmate,                                                                
would there be a hesitancy?  It would be more difficult to                                                                      
prosecute them for first-degree assault, due to the fact it states                                                              
in statute that they are suppose to be prosecuted under                                                                         
third-degree because of sexual penetration.  She stated that this                                                               
is what the network does not want to have happen.                                                                               
                                                                                                                                
Number 1640                                                                                                                     
                                                                                                                                
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,                                                                 
Division of Family and Youth Services, Department of Health and                                                                 
Social Services, came before the committee to testify.  He is here                                                              
in support of the bill.  The delinquency statutes allow juvenile                                                                
offenders up through the age of 19 to be in the juvenile justice                                                                
system.  Most of those young offenders are held in the youth                                                                    
facility treatment programs.  As a result, there are adults who are                                                             
still within the delinquency system.  The current statutes do not                                                               
speak to sexual contact between department employees and those who                                                              
have reached the age of majority.  This bill fixes that problem.                                                                
As Ms. Knuth indicated, it hasn't been a crime before, but it is                                                                
conduct that the department would not condone or approve.  This                                                                 
bill fixes that omission or hole in the current statute and                                                                     
practice in relation to the delinquency system.  He is not aware of                                                             
this being a problem within the juvenile system; this is not a                                                                  
response to an incident that has occurred, but it clearly                                                                       
communicates that this is the standard expected in taking                                                                       
responsibility for older juvenile offenders.                                                                                    
                                                                                                                                
Number 1740                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty                                                               
being elevated.                                                                                                                 
                                                                                                                                
MR. BUTTCANE deferred the question to the Department of Law.  He                                                                
thinks that a fiscal note would come into play if the penalty is                                                                
elevated.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GREEN asked Mr. Buttcane to comment on the penalty                                                               
being elevated from a non-fiscal point of view.                                                                                 
                                                                                                                                
MR. BUTTCANE replied he is comfortable with the current status of                                                               
the penalty.  He sees a difference between an 18-year-old and                                                                   
someone who is mentally incapacitated.  An 18-year-old can make a                                                               
reasonable decision about engaging in sexual contact with someone                                                               
else.  It is inappropriate if that person happens to be a youth                                                                 
counselor or correctional officer, which is what the bill speaks                                                                
to.  But, they are adults and are forwarded the benefit of being                                                                
able to make reasoned decisions and sexual behavior is one of those                                                             
decisions that comes with the age of majority.  He personally                                                                   
believes making that decision an unclassified felony is excessive.                                                              
He declared that is his opinion, however, and not the department's.                                                             
                                                                                                                                
Number 1814                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Mr. Buttcane whether it should still be                                                              
third-degree assault in the case of coercion or adverse influence                                                               
from a person in authority.                                                                                                     
                                                                                                                                
MR. BUTTCANE replied the level of coercion certainly elevates the                                                               
severity of the offense.  The current law allows for a more severe                                                              
response for nonconsensual sexual contact.  An unbalanced authority                                                             
is inherent in a relationship between a correctional officer with                                                               
a person in custody which warrants a felony level sexual assault                                                                
with or without consent.  But, if there is any degree of                                                                        
nonconsent, the penalty needs to be more severe.                                                                                
                                                                                                                                
Number 1891                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Mr. Buttcane whether he feels that a                                                                 
correctional officer should be held to a higher accountability,                                                                 
otherwise a negative message is being sent to the person trying to                                                              
be rehabilitated.  He said he didn't expect an answer; it was more                                                              
of a statement.                                                                                                                 
                                                                                                                                
Number 1930                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA stated she is concerned about the degree of                                                             
offense because of the authority over the person in custody.  It's                                                              
not consensual under those circumstances.  She asked Mr. Buttcane,                                                              
for clarification, whether sexual assault in the first degree is                                                                
for truly incapacitated people.                                                                                                 
                                                                                                                                
MR. BUTTCANE deferred the question to the Department of Law.                                                                    
                                                                                                                                
Number 1963                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the magic number                                                             
is 20 years of age at which point a person is released or dealt                                                                 
with by the Department of Corrections.                                                                                          
                                                                                                                                
MR. BUTTCANE replied the jurisdiction of the juvenile system must                                                               
terminate on a person's twentieth birthday.  At that point, the                                                                 
case is closed, and there is no mechanism to transfer that                                                                      
individual to an adult system.                                                                                                  
                                                                                                                                
Number 1999                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether individuals who                                                              
are developmentally disabled who are placed under the definition of                                                             
a legal guardian could go beyond the age of 19 sometimes.                                                                       
                                                                                                                                
MR. BUTTCANE replied yes a person of any mental capacity could be                                                               
in the juvenile system up to the twentieth birthday.                                                                            
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether the definition                                                               
of "legal guardian" is specific to those individuals under AS 47.10                                                             
or AS 47.12.                                                                                                                    
                                                                                                                                
MR. BUTTCANE replied yes.                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether any other person                                                             
in custodial control would be defined in another part of the                                                                    
statute.                                                                                                                        
                                                                                                                                
MR. BUTTCANE replied yes.  Title 47.10 and 47.12 are specific to                                                                
children in need of aid and delinquent youths.  The youths who are                                                              
involved with mental health and developmental disabilities fall                                                                 
under a different authority.                                                                                                    
                                                                                                                                
Number 2064                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Buttcane whether there are folks                                                              
over 20 years of ago who are in custodial care who might find                                                                   
themselves in this circumstance because of their disability and                                                                 
still need the protection of the statute.                                                                                       
                                                                                                                                
MR. BUTTCANE replied yes.  He doesn't know whether that                                                                         
circumstance would be covered under existing law, however.  He                                                                  
deferred the question to the Department of Law.                                                                                 
                                                                                                                                
Number 2312                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Ms. Knuth, if there was a correctional officer                                                              
who had sexual contact or penetration with an inmate, could that                                                                
officer be prosecuted under sexual assault in the first degree.                                                                 
                                                                                                                                
Number 2132                                                                                                                     
                                                                                                                                
MS. KNUTH replied only if the act was proven to be nonconsensual.                                                               
The Department of Law engaged in lengthy discussions on the level                                                               
of penalty for this type of offense.  The analysis looked first at                                                              
a lack of consent, then it looked at a lack of capacity or                                                                      
unawareness.  This is a step below that and the inappropriateness                                                               
is the position of authority of a correctional officer.  There                                                                  
isn't another circumstance in law that criminalizes consensual,                                                                 
knowing sexual activity between adults.  All of the current                                                                     
criminal penalties involve underage, nonconsent, or incapacitated                                                               
in some fashion.                                                                                                                
                                                                                                                                
MS. KNUTH further stated, in reference to Representative Rokeberg's                                                             
questions, she believes a developmentally disabled individual is                                                                
already covered under the law.  The law prohibits someone who is                                                                
entrusted with authority from engaging in sexual contact or                                                                     
penetration with somebody who is incapable of giving meaningful                                                                 
consent.  The question is, do you want to say the power disparity                                                               
between a correctional officer and a prisoner makes it the same as                                                              
a lack of capacity due to alcohol, for example?  In terms of the                                                                
standards that the court uses in looking at equal protection, she                                                               
has confidence that the supreme court could see the differences.                                                                
But, in terms of a policy decision and where the crime should fit,                                                              
it is an issue that reasonable people can come to different                                                                     
conclusions on.  She thinks that it shouldn't be an unclassified                                                                
felony because it is so severe that it would have a chilling effect                                                             
on prosecutions.  She noted the chances of a conviction go up for                                                               
a class B or class C felony.                                                                                                    
                                                                                                                                
Number 2350                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said there isn't consent for first-degree                                                                  
sexual assault because the person doesn't understand what is                                                                    
happening, or the person doesn't know what is happening.  He cited                                                              
a doctor's examination as an example.  In that case, there is a                                                                 
situation where the consent is questionable because of the power                                                                
relationship.  He thinks it is appropriate that it is one step                                                                  
lower.                                                                                                                          
                                                                                                                                
Number 2401                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Ms. Knuth whether she knows the                                                                      
penalties in other jurisdictions.                                                                                               
                                                                                                                                
MR. KNUTH replied she has a 50-state survey, but she has not                                                                    
analyzed it for that particular question.  They are pretty much all                                                             
over the board - class A misdemeanor, class C felony, class D                                                                   
felony, etc.  She has not seen a jurisdiction give it the most                                                                  
serious level, however.                                                                                                         
                                                                                                                                
TAPE 99-30, SIDE B                                                                                                              
Number 0013                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said a mentally incapable person, by not                                                                
including them, can give consent.                                                                                               
                                                                                                                                
MS. KNUTH said it depends on whether that person is found to be                                                                 
able to consent.  There is a continuum of developmental                                                                         
disabilities.  If someone was found to be able to give consent,                                                                 
then it would not be covered by existing law.                                                                                   
                                                                                                                                
Number 0031                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG replied, "And, rightfully so."  He wants to                                                             
give consideration for choices to be made.                                                                                      
                                                                                                                                
Number 0048                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT closed the meeting to public testimony, and asked the                                                             
committee members to discuss the level of penalty for these                                                                     
situations.                                                                                                                     
                                                                                                                                
Number 0059                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated it is arguable whether it's one or two                                                              
levels below.  Sexual assault in the second degree includes                                                                     
penetration of an individual who the offender knows is mentally                                                                 
incapable, incapacitated, or unaware that a sexual act is being                                                                 
committed.  That was elevated for the doctor situations.  The bill                                                              
talks about third-degree assault for sexual penetration and                                                                     
fourth-degree assault for contact. He thinks that this should be                                                                
punishable conduct, but he is worried about punishing it                                                                        
excessively.                                                                                                                    
                                                                                                                                
Number 0126                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN stated the doctor situations are in a                                                                      
different setting, and an incarceration officer is also in a unique                                                             
setting.  He believed it should be held to a higher standard making                                                             
it more akin to someone who can respond logically.  It isn't a                                                                  
run-of-the mill situation.  It's not quite to the extent of the                                                                 
doctor situation, but it should be higher than the norm.                                                                        
                                                                                                                                
Number 0170                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI stated, because of the power situation                                                                 
between an inmate and a correctional officer, there is duress that                                                              
makes consent a completely separate issue.                                                                                      
                                                                                                                                
Number 0197                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated there are circumstances where there                                                              
wouldn't be any duress whatsoever.  If it is raised to one more                                                                 
level, it would go from zero to two years to ...                                                                                
                                                                                                                                
Number 0240                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT interjected that the testimony seems to                                                                    
indicate that this is an inherently coercive situation, and only in                                                             
rare instances would it be truly consensual.  The bill is taking                                                                
consent out of the equation for those rare cases; and, as a result,                                                             
there would be no defense for them.                                                                                             
                                                                                                                                
Number 0281                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated the position of authority in essence                                                             
raises it to destructive, statutory rape.  A fact-pattern wouldn't                                                              
come into play, if the level is raised, when there could be                                                                     
exceptions.  In those cases, a judge wouldn't have any discretion.                                                              
                                                                                                                                
Number 0305                                                                                                                     
                                                                                                                                
MR. KNUTH noted that the maximum for a class C felony is five                                                                   
years.  The benchmark is 90 days to 6 months.  The maximum for a                                                                
class B felony is 10 years.  The benchmark for a first offender is                                                              
around two years.  The maximum for a class A felony is 20 years                                                                 
with a natural presumptive sentence of 5 to 7 years.                                                                            
                                                                                                                                
Number 0328                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN stated this is still unappropriate behavior,                                                               
even for the rare cases where there is consent.  The fact that this                                                             
is a situation preparing a person for rehabilitation, he thinks, it                                                             
should be raised to let people know it will not be tolerated.                                                                   
                                                                                                                                
Number 0369                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT stated that a person guilty of this type of offense                                                               
would be terminated, which would hopefully be some deterrent.                                                                   
                                                                                                                                
Number 0377                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said a felony whether it's class B or C has                                                             
a downside in terms of punishment.  The circumstance here would                                                                 
limit discretion by the judicial branch making the judgments.  He                                                               
also noted that there is an upside of a five-year differential by                                                               
making a distinction.  The benchmarks are significantly different                                                               
by about one and a half years of minimum time.  A person suffers                                                                
significantly, even if there is true consent.  He agrees with the                                                               
law and its need, but is concerned about going too far because                                                                  
there may be circumstances where there is a difference.                                                                         
                                                                                                                                
Number 0431                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN stated, based on testimony from Ms. Knuth, it                                                              
would be more than a first-time offense.  If a person doesn't get                                                               
the message the first time, then five more years is appropriate.                                                                
                                                                                                                                
Number 0449                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG stated this type of fact-pattern would get                                                              
into a "he said-she said" situation of credibility, and taking that                                                             
away makes a huge difference.  The person would either be in a                                                                  
class C felony or in an unclassified felony.  There is also the                                                                 
circumstance of which is easier to corroborate - a class C felony;                                                              
an unclassified felony; to press a prosecution, if it is a higher                                                               
felony; or to get more convictions, as it should be, with a lower                                                               
punishment.  He doesn't know how to balance that, but it is a                                                                   
factor that needs to be considered.                                                                                             
                                                                                                                                
Number 0500                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA expressed concerned about the prosecution.                                                              
This is an inherently nonconsensual situation.  She is concerned                                                                
about this happening in correctional facilities.  She tends to like                                                             
the idea, especially because penetration would be a higher                                                                      
sentence, but she is troubled by raising it too high.  The bill                                                                 
takes the first step in criminalizing something that has an element                                                             
of consent, even though it is inherently nonconsensual.                                                                         
                                                                                                                                
Number 0541                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT stated he is concerned because this really isn't a                                                                
problem in Alaska.  He would like to see a person at least go                                                                   
before the courts for prosecution, even in those rare situations.                                                               
                                                                                                                                
Number 0557                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated this is the first time that consensual                                                              
sex between adults, where they know the character of the act, would                                                             
be criminalized.  In all the other situations, either they couldn't                                                             
consent because of age or mental capacity or didn't know what was                                                               
going on.  He agrees that the element of consent is troublesome,                                                                
but arguably a sexual act between two adults could be criminalized.                                                             
It's a whole new area.  It's proper under the bill, but the level                                                               
should be carefully considered.                                                                                                 
                                                                                                                                
Number 0611                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT noted this is the first time that the legislature has                                                             
traveled down this path.                                                                                                        
                                                                                                                                
Number 0616                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked how many committee members have been                                                              
to the Highland Mountain Correctional Center.  He noted it would be                                                             
difficult to find the space and privacy to "do it" there.                                                                       
                                                                                                                                
Number 0642                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA stated the only reason she is not going to                                                              
offer an amendment is because she has worked with enough                                                                        
prosecutors and believes that they would charge the higher crime,                                                               
if there is any element of nonconsent.  She noted that it is an                                                                 
ethical violation for an attorney to have sex with a client, so                                                                 
think how worse it is for a correctional officer who has control                                                                
over a person's daily life...                                                                                                   
                                                                                                                                
Number 0702                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move HB 99 from the                                                                    
committee with individual recommendations and the attached fiscal                                                               
note(s). There being no objection, HB 99 was so moved from the                                                                  
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
Number 0737                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT called for a brief at-ease at 2:25 p.m. and called                                                                
the meeting back to order at 2:31 p.m.                                                                                          
                                                                                                                                
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 75, "An                                                                
Act relating to murder; authorizing capital punishment, classifying                                                             
murder in the first degree as a capital felony, and allowing the                                                                
imposition of the death penalty when certain of those murders are                                                               
committed against children; establishing sentencing procedures for                                                              
capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska                                                                 
Rules of Criminal Procedure, and Rules 204, 209, 210, and 212,                                                                  
Alaska Rules of Appellate Procedure."                                                                                           
                                                                                                                                
CHAIRMAN KOTT declared it is not the intent to pass the bill out of                                                             
the committee today or whenever.  There is no immediate intent to                                                               
move this bill.                                                                                                                 
                                                                                                                                
Number 0804                                                                                                                     
                                                                                                                                
REPRESENTATIVE MASEK, sponsor of HB 75, Alaska State Legislature,                                                               
informed the committee that she introduced HB 75 due to her                                                                     
personal belief that capital crimes committed against children                                                                  
should be treated with the most serious consequences society can                                                                
deliver.  She noted that she introduced similar legislation a few                                                               
years ago.  Representative Masek explained that HB 75 allows for                                                                
the use of the death penalty only in situations where children are                                                              
kidnaped, assaulted, sexually assaulted, or a combination thereof.                                                              
She recognized that HB 75 concerns some who oppose the death                                                                    
penalty and in most instances, she said she may agree with those                                                                
individuals.  However, she did not have any sympathy for those who                                                              
prey upon children.  Children need and deserve protection.  Even if                                                             
the death penalty for crimes against children deters only one felon                                                             
from killing a child, she believed the efforts would be worthwhile.                                                             
Representative Masek requested the committee's support of HB 75 and                                                             
Alaska's children.  She offered to answer any questions.                                                                        
                                                                                                                                
CHAIRMAN KOTT requested that committee members hold questions in                                                                
order to take the testimony of those on teleconference.  He                                                                     
announced that there is only a 30-minute window for those on                                                                    
teleconference.  Therefore, he requested that those on the                                                                      
teleconference who wished to testify today limit their testimony to                                                             
three minutes or less.  Those who can return tomorrow to testify                                                                
will receive additional time.                                                                                                   
                                                                                                                                
REVEREND JAY OLSON KETCHUM, testifying via teleconference from                                                                  
Anchorage, stated that she was opposed to HB 75 and capital                                                                     
punishment.  She informed the committee that she is a minister of                                                               
a Presbyterian church and this summer she will be moving to Juneau                                                              
to serve as the Executive (indisc.) for the churches in Southeast                                                               
Alaska.  Nationally, the Presbyterian Church has opposed capital                                                                
punishment.  Reverend Ketchum believed it was not in society's best                                                             
interest to use killing as a means to deter killing.  Capital                                                                   
punishment will not serve a useful purpose and is uncivilized.                                                                  
Reverend Ketchum did agree that more should be done to protect and                                                              
care for children.  Therefore, she asked the committee to consider                                                              
the many uses of the resources that would otherwise be used for                                                                 
capital punishment.  She understood that implementing the death                                                                 
penalty would have considerable costs.  Perhaps, that money could                                                               
be utilized for better accessibility to health care and higher                                                                  
quality mental health services for more children.  Reverend Ketchum                                                             
emphasized that she has had far too many children in her Anchorage                                                              
office that cannot get adequate resources and help for mental                                                                   
health and medical services.  The money could be used to provide                                                                
higher quality and affordable day care.  She also suggested that                                                                
the resources being used to consider the death penalty could be                                                                 
utilized to implement prison reform in order to have a                                                                          
rehabilitative system.  Capital punishment is not good for Alaskans                                                             
and she did not believe it would make Alaskans any safer.  Reverend                                                             
Ketchum urged the committee to put the death penalty issue away.                                                                
                                                                                                                                
Number 1099                                                                                                                     
                                                                                                                                
DALE KELLEY, Executive Director, Alaskans Against the Death                                                                     
Penalty; Council Director, United Methodist Church throughout                                                                   
Alaska, testified via teleconference from Anchorage in opposition                                                               
to HB 75.  Ms. Kelley stated that she was aware that all major                                                                  
denominations in the United States and elsewhere are opposed to                                                                 
capital punishment.  She urged the committee to say "No" to HB 75.                                                              
The bill has a variety of flaws, one of which would conceivable                                                                 
allow children of any age to be given the death penalty which she                                                               
felt was morally wrong.  "Killing one who killed another does not                                                               
teach that killing is wrong and that has been reported nationally."                                                             
She explained that the death penalty illustrates to children that                                                               
if the reason is good enough, killing is alright.  Surely, society                                                              
can develop a better way to deter violence at all levels.  With                                                                 
regard to the argument that the victims of murder demand justice                                                                
and retribution, Murder Victims' Families for Reconciliation, a                                                                 
national organization, is opposed to capital punishment.                                                                        
                                                                                                                                
MS. KELLEY noted the "factor of innocence" as experienced in                                                                    
Illinois.  Recently, Illinois has released 11 people since                                                                      
reinstatement of the death penalty in that state.  Those people                                                                 
were proven to be innocent.  The "factor of innocence" is moral and                                                             
ethical, although capital punishment on any level is wrong.                                                                     
                                                                                                                                
CHAIRMAN KOTT asked if all major denominations are opposed to the                                                               
death penalty, how can the polls which overwhelming indicate that                                                               
Alaskans support the death penalty, 70 percent to 80 percent, be                                                                
explained.                                                                                                                      
                                                                                                                                
Number 1326                                                                                                                     
                                                                                                                                
WILLIAM DEWEY, Attorney, testified via teleconference from                                                                      
Anchorage.  He noted that he has been an attorney in Alaska for                                                                 
about 17 years.  He informed the committee that he had a written                                                                
statement that he would forward to the committee.  Mr. Dewey                                                                    
opposed HB 75 and the death penalty, in general.  With regard to                                                                
the polls being discussed, Mr. Dewey indicated that the results are                                                             
different when people have more information.  Furthermore, poll                                                                 
results are different when asking if the death penalty should                                                                   
replace life without parole.  With regard to serious crimes against                                                             
children, Mr. Dewey could only remember about three very serious                                                                
murders and all of those resulted in life without parole.  The                                                                  
problem is one of retribution.                                                                                                  
                                                                                                                                
MR. DEWEY discussed the diary of a Holocaust survivor who was 15                                                                
during the Holocaust.  The diary entries during the two years after                                                             
his release from the camps illustrated his strong feelings of                                                                   
revenge, retribution, and the desire to kill those who had                                                                      
perpetrated this crime against he and his family members.  After                                                                
years of reflection, this man became surprised at his incivility at                                                             
that time and decided that would not be a civilized response to a                                                               
problem.  Mr. Dewey felt the same in this case.  Why should courts                                                              
be given the power of the death penalty, when there are many                                                                    
concerns and criticism with regard to the court's decisions.  In                                                                
conclusion, Mr. Dewey asked the committee not to pass HB 75.                                                                    
                                                                                                                                
CHAIRMAN KOTT announced that witnesses were welcome to fax their                                                                
written testimony to the committee to be placed in the record.                                                                  
                                                                                                                                
Number 1524                                                                                                                     
                                                                                                                                
FATHER LEO WALSH, Associate Pastor, St. Anthony's Catholic Church;                                                              
President, Innerfaith Council of Anchorage, testified via                                                                       
teleconference from Anchorage in opposition to HB 75.  He informed                                                              
the committee that his parish encompasses Mountain View.  Father                                                                
Walsh said that he has had to preside at more than one murdered                                                                 
child's funeral.  When there is the proposition to execute/kill the                                                             
murderer, the victim's family is deprived of the chance to bring                                                                
their grief to closure.  In effect, the victim's family is given a                                                              
lifetime penance of grief.  The death penalty, especially in the                                                                
murder of a child, achieves the opposite of its intent.  Father                                                                 
Walsh explained that with any punishment, there are three factors                                                               
to consider which are the following: the protection of the                                                                      
community or society at large; the rehabilitation or change of the                                                              
offender's behavior; and the restoration of moral order.  The death                                                             
penalty does protect society from a similar offense, but removes                                                                
any chance of rehabilitation of the offender.  Father Walsh                                                                     
suggested that the death penalty does not restore moral order, but                                                              
rather injures it further.  For example, two years ago in Mountain                                                              
View there was a rash of youth violence and the Anchorage Youth                                                                 
Witness for Peace was held.  During that meeting, a powerful letter                                                             
was read from a youth offender who killed another youth.  The                                                                   
letter urged youth not to do what he had done.  Had that youth been                                                             
killed that opportunity would have been lost.  Father Walsh                                                                     
reiterated his opposition to HB 75.                                                                                             
                                                                                                                                
Number 1727                                                                                                                     
                                                                                                                                
RICH CURTNERS, Attorney, testified via teleconference from                                                                      
Anchorage.  He informed the committee that before coming to Alaska                                                              
he was an attorney in Ohio where he did quite a bit of death                                                                    
penalty litigation.  He stressed that the death penalty is an                                                                   
expensive proposition.  Ohio has had the death penalty for 20 years                                                             
and there are 150 people on death row there.  Ohio has not yet had                                                              
an execution.  The first death penalty legislation in Ohio was                                                                  
found to be unconstitutional by the U.S. Supreme Court. Ohio's                                                                  
second death penalty legislation has been going through the courts                                                              
for 15 years.  Upon a quick review of HB 75, Mr. Curtners                                                                       
guaranteed the committee that there are many constitutional                                                                     
problems with HB 75 which invite expensive litigation.  He                                                                      
commented that any death penalty legislation would be expensive at                                                              
the trial court level through the appeals and the appellate process                                                             
through the federal courts.  Mr. Curtners stated that HB 75 will                                                                
much more expensive.  He noted that he had the opportunity to                                                                   
review the fiscal note for HB 75 which he felt was a conservative                                                               
estimate of the expense.  In Ohio, after 20 years of death penalty                                                              
litigation, the Ohio public offender's office has a large death                                                                 
penalty litigation staff strictly for the later appellate stages of                                                             
habeas work which does not account for each counties local                                                                      
appellate court expenses.  Mr. Curtners believed HB 75 will cost                                                                
Alaska a lot of money which could be better spent to protect                                                                    
children.                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT said that the committee would appreciate any                                                                      
information from Mr. Curtners regarding the portions of the bill                                                                
that may be unconstitutional.                                                                                                   
                                                                                                                                
Number 1921                                                                                                                     
                                                                                                                                
AMY MENARD, Attorney, testified via teleconference from Anchorage.                                                              
She noted that she had been waiting in a room with other Alaskans                                                               
for almost two hours to speak on this topic.  She wanted the                                                                    
committee to be aware of the concern and dedication among those                                                                 
Alaskans who oppose and regret the consideration of HB 75.  Ms.                                                                 
Menard opposed HB 75, but noted that she would not discuss her                                                                  
moral and ethical objections to the legislation.  However, she                                                                  
wanted to dovetail into Mr. Curtners comments.  Ms. Menard                                                                      
emphasized her frustration that the legislature perennially                                                                     
revisits this issue and in particular now during Alaska's financial                                                             
difficulties.  The death penalty will add significant cost as well                                                              
as an additional layer of litigation to a court system which is                                                                 
already overburdened and slow.  Ms. Menard said that frustration                                                                
was from her position as an attorney as well as an Alaskan.  She                                                                
agreed that there are many constitutional and legal challenges that                                                             
would arise from HB 75.  The legislation encumbers the supreme                                                                  
court further with jurisdiction for seeing these cases and time                                                                 
lines for hearing appeals.  From her personal experience, Ms.                                                                   
Menard informed the committee that appeals before the Alaska                                                                    
Supreme Court routinely run 18 and 24 months at a time.  Therefore,                                                             
she had difficulty understanding how the practical parameters of                                                                
this legislation would work.  In conclusion, Ms. Menard opposed HB
75 and clarified that she and many others oppose this legislation                                                               
for moral as well as financial reasons.  This legislation is a poor                                                             
use of resources and a poor use of the committee's time.                                                                        
                                                                                                                                
TAPE 99-31, SIDE A                                                                                                              
                                                                                                                                
Number 0035                                                                                                                     
                                                                                                                                
MARY GEDDES testified via teleconference from Anchorage in                                                                      
opposition to HB 75.  She informed the committee of the following                                                               
information which she felt pertinent to her opinion on HB 75.                                                                   
First, Ms. Geddes noted that she was expecting a child in the next                                                              
two months.  Second, she said that when she was 15 years of age her                                                             
best friend was kidnaped, sexually assaulted and strangled to                                                                   
death.  Although the images of her best friend's death will always                                                              
haunt her, she realizes that the death penalty will not bring her                                                               
best friend back.                                                                                                               
                                                                                                                                
MS. GEDDES read Lisa Rieger's statement into the record as follows:                                                             
                                                                                                                                
     As one of the few lawyers in the state who has actually                                                                    
     tried a death penalty case, I am speaking in opposition                                                                    
     to HB 75.  Often there is an impression that the costs of                                                                  
     the death penalty arrive after trial and conviction                                                                        
     during the appeals process.  In fact, much of the                                                                          
     increased cost occurs during investigation and trial.                                                                      
     For example, the trial on which I was involved took seven                                                                  
     months of court time.  Thus, it is extremely taxing to                                                                     
     the court, the jurors, and the attornates.  Two                                                                            
     prosecutors and two defense attorneys were committed for                                                                   
     the entire pre-trial and trial period, exclusively to                                                                      
     this case.  There is always a danger when yesterday's                                                                      
     headlines become tomorrow's laws.  This state has had bad                                                                  
     experience with that in the past.  I strongly urge you to                                                                  
     reject this bill.  On behalf of both of our families I                                                                     
     ask you to vote down HB 75.                                                                                                
                                                                                                                                
Number 0267                                                                                                                     
                                                                                                                                
ARTHUR CURTIS, Minister, Unitarian Universalist Fellowship,                                                                     
testified via teleconference from Anchorage in opposition to HB 75.                                                             
He found no evidence to illustrate that the death penalty will                                                                  
accomplish any good in the prevention of crime.  He commented on                                                                
the expense of the death penalty and pointed out that the death                                                                 
penalty has not worked in other states.  Therefore, he was not                                                                  
certain as to why Alaska would want to join the "brutality                                                                      
sweepstakes."  He said that HB 75 is a step backwards and he urged                                                              
the committee to vote against HB 75.                                                                                            
                                                                                                                                
DENNIS HOLWAY, Pastor, Turnagain United Methodist Church, testified                                                             
via teleconference from Anchorage in opposition to HB 75.  He                                                                   
informed the committee that he has served as a United Methodist                                                                 
Minister in Alaska since 1977 and he is currently in his ninth year                                                             
as pastor at the Turnagain United Methodist Church.  Capital                                                                    
punishment does not necessarily rally the clergy around a common                                                                
voice.  However, within the general conference of the United                                                                    
Methodist denomination which represents approximately 8 million                                                                 
members, it is clear that capital punishment is opposed and urged                                                               
to be eliminated from all capital codes.  Pastor Holway noted that                                                              
his conference does not speak for all United Methodists, but it                                                                 
does speak to all United Methodists.  He informed the committee                                                                 
that his opposition was based upon moral and biblical traditions                                                                
which place value on the life of every human being.  Pastor Holway                                                              
discussed a 17-year-old congregation member who killed his best                                                                 
friend at age 15 when the two were playing with guns.  This youth                                                               
went to McClaughlin which did an excellent job in this case and the                                                             
youth has been released and is doing well.  Pastor Holway hoped                                                                 
that this example illustrates the implications of legislation when                                                              
a human being is caught in a web of violence even when it is an                                                                 
accident.                                                                                                                       
                                                                                                                                
Number 0618                                                                                                                     
                                                                                                                                
CHARLES CAMPBELL informed the committee that he was a past director                                                             
of the Division of Corrections in Alaska.  He noted that he has                                                                 
been involved in various aspects of the corrections field for more                                                              
than 45 years, including service at seven different federal                                                                     
prisons.  Among those seven federal prisons, Mr. Campbell served at                                                             
the Medical Center for Federal Prisoners in Springfield, Missouri,                                                              
which housed and studied some of the most vicious criminals in the                                                              
federal system.  Mr. Campbell opposed HB 75 and restoration of the                                                              
death penalty in Alaska under any circumstances.  He said that he                                                               
could understand the sentiment underlying this legislation, but HB
75 is troubling.  "Nothing could be more inappropriate, in my                                                                   
opinion, than memorializing the death of a child by killing another                                                             
human being."  Mr. Campbell pointed out that an individual that is                                                              
so disturbed as to be capable of murdering a child is the type of                                                               
person who would not be deterred by the prospect of being executed;                                                             
the opposite effect would be more likely.  There is solid research                                                              
that supports this thinking and he offered to detail such research                                                              
to the committee.                                                                                                               
                                                                                                                                
MR. CAMPBELL said that he did not understand why state                                                                          
legislatures, this body included, gives any consideration to such                                                               
a terrible practice.  The death penalty is obscenely expensive and                                                              
is not useful as a deterrent.  Furthermore, the death penalty                                                                   
hampers the cause of good law enforcement and protection of the                                                                 
public.  The death penalty is blatantly unfair to racial minorities                                                             
and defendants unable to afford adequate representation.  These                                                                 
facts are not disputed by any reliable or reputable source.  With                                                               
regard to the polls, Mr. Campbell recognized that the polls                                                                     
illustrate that most Americans as well as Alaskans approve of the                                                               
death penalty, but these same polls show that most Americans do not                                                             
believe that vengeance is a legitimate reason for the death                                                                     
penalty.  Vengeance is the only rational reason for the use of the                                                              
death penalty.  This ultimate, irreversible penalty, is one that                                                                
falls disproportionately on the poor and the poorly represented.                                                                
Russia and the Ukraine are the most recent countries to abandon the                                                             
death penalty.  Mr. Campbell commented that Americans are known to                                                              
be the most compassionate and charitable people on earth, yet                                                                   
Americans are willing to be so isolated on this issue in the world.                                                             
Continuing the death penalty in America places America in the                                                                   
company of countries such as Iraq, Iran, Lybia, and China.  Mr.                                                                 
Campbell expressed the need for the legislators to utilize this                                                                 
opportunity to inform their constituents of the reality of the                                                                  
death penalty and help their constituents understand why they                                                                   
should oppose the restoration of the death penalty.                                                                             
                                                                                                                                
MR. CAMPBELL informed the committee that in 1980 when he served as                                                              
the Director of the Division of Corrections he was posed with the                                                               
task of developing a position paper for death penalty legislation.                                                              
He recalled that he neglected his position as director for two                                                                  
weeks in order to make phone calls, write letters, and read law                                                                 
review journals.  As a result, Mr. Campbell became adamantly                                                                    
opposed to the death penalty on all grounds, although his moral and                                                             
ethical opposition to the death penalty existed prior to this task.                                                             
Among the studies he reviewed, the 1967 Pearce (ph) and Bauers (ph)                                                             
study of Northeastern University reviewed the possibility of                                                                    
Christian terrorists.  The study reviewed New York State from the                                                               
time of the establishment of the Borough of Vital Statistics, 60                                                                
years.  A pattern was found of two additional murders, on average,                                                              
per month following the month of one or more executions.  Mr.                                                                   
Campbell said that about 10 years ago he discussed this with                                                                    
Professor Bauers (ph) who noted that other studies have suggested                                                               
the same.  About two years ago, Mr. Campbell talked with Professor                                                              
Bauers (ph) who was more convinced that the prospect of execution                                                               
is more likely to incite a particularly twisted, pre-disposed type                                                              
of person to commit a violent act than to deter that person.                                                                    
                                                                                                                                
MR. CAMPBELL noted that for many of his years in the federal prison                                                             
system he was a case worker who compiled social histories.  He sat                                                              
across the table from some of the most depraved, pathological                                                                   
murderers one could imagine.  Mr. Campbell emphasized that it would                                                             
be preposterous to think that such a person would be deterred by                                                                
the threat of execution; quite the opposite is likely to occur.                                                                 
Therefore, to feel that HB 75 would save one child's life is a poor                                                             
prospect to count on.  When violence is relied upon, which is                                                                   
essentially what the death penalty is, there will be a continuation                                                             
of more not less violence.  In response to Representative Green,                                                                
Mr. Campbell agreed to provide the committee with a copy of the                                                                 
aforementioned study.                                                                                                           
                                                                                                                                
Number 1280                                                                                                                     
                                                                                                                                
PHILLIP PALLENBERG informed the committee that he was the                                                                       
Supervising Attorney for the Public Defender Agency in Juneau,                                                                  
although he indicated that he was not testifying in that capacity.                                                              
Mr. Pallenberg said that he was present to provide his personal                                                                 
opinions to HB 75.  Mr. Pallenberg opposed HB 75 as well as capital                                                             
punishment.  He pointed out that HB 75 is structured such that in                                                               
all first degree murder cases a separate hearing with the jury in                                                               
which the jury makes recommendations regarding sentencing would be                                                              
required.  The legislation does not limit the sentencing phase of                                                               
the trial, which is not currently done, to child murder cases.                                                                  
That seemed to be a Trojan Horse as does the entire bill.  If HB 75                                                             
passes, he felt that each year another depraved category of                                                                     
murderers would be added.                                                                                                       
                                                                                                                                
MR. PALLENBERG suggested the committee should focus on the issue of                                                             
capital punishment in a broader sense, not on child murderers.                                                                  
There seems to be two broad rationales supporting the death penalty                                                             
which are retribution and deterrence.  Those have to be balanced                                                                
against the monetary costs and, even more importantly, against the                                                              
potential for innocent people to be executed by the state.  As                                                                  
someone working in the legal system for a long time, Mr. Pallenberg                                                             
was concerned with the latter; jurors are human beings and human                                                                
beings make mistakes.  There is a high potential for innocent                                                                   
people to be executed under such a system.  Mr. Pallenberg believed                                                             
that the only way a bill such as HB 75 made sense morally is if the                                                             
public can be convinced that the bill will save more lives than it                                                              
will cost the innocent.  He agreed with Mr. Campbell's comments.                                                                
The more depraved the act the more difficult it is to deter.  He                                                                
said, "Really, the question isn't will capital punishment deter                                                                 
anybody.  The question is will capital punishment deter anybody who                                                             
wouldn't have been deterred by a life sentence without possibility                                                              
of parole."                                                                                                                     
                                                                                                                                
Number 1550                                                                                                                     
                                                                                                                                
HUGH FLEISCHER, Executive Board, Alaska Christian Conference;                                                                   
Interfaith Council of Anchorage; Alaskans Against the Death                                                                     
Penalty; testified in opposition to the death penalty in Alaska.                                                                
He noted that Ms. Lerman is a historian who will provide the                                                                    
committee with information regarding what it was like in Alaska                                                                 
when the death penalty was in place.  During that time, 75 percent                                                              
of those persons executed were Natives and African Americans, even                                                              
though those people comprised a very small portion of the                                                                       
population.  Mr. Fleischer suggested the committee review Alaska's                                                              
actual experience with the death penalty.  Mr. Fleischer concurred                                                              
with all the previous testimony, specifically that of Mr. Campbell.                                                             
He emphasized that the state should not emulate murderers because                                                               
it is against our interest.  He echoed the comments regarding the                                                               
mistakes that are made due to the human judicial system.  Mr.                                                                   
Fleischer informed the committee that in the U.S. over 70 people on                                                             
death row have been cleared of guilt.  In Florida, there were 18                                                                
such persons who were found to have been erroneously convicted.  He                                                             
noted that every member of the legislature would receive the                                                                    
document entitled, "'Innocent' Why the Death Penalty is Losing its                                                              
Supporters" which he asked the members to review.                                                                               
                                                                                                                                
MR. FLEISCHER informed the committee that the Criminal Justice                                                                  
Working Group puts out a time line illustrating what happens                                                                    
between the time of arrest and the time of conviction.  The                                                                     
Criminal Justice Working Group includes police organizations,                                                                   
prosecutors, the Department of Law, and various persons involved in                                                             
the criminal justice system.  The time line graph is longer than                                                                
Mr. Fleischer's out-stretched arm.  There are innumerable areas                                                                 
where mistakes can be made.  He requested that time line be entered                                                             
as part of the record as with the aforementioned document.                                                                      
                                                                                                                                
Number 1860                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT expressed concern with the prosecution of an innocent                                                             
person.  With regard to those who have been released in recent                                                                  
years, Chairman Kott suspected that was due to advances in the                                                                  
medical field.  Since Alaska has outlawed the death penalty, has                                                                
Alaska ever released a person and declared the person innocent.                                                                 
                                                                                                                                
MR. FLEISCHER pointed out that virtually all criminal prosecutions                                                              
resulting in a conviction are appealed.  There have been a number                                                               
of convictions that were overturned by the Alaska Court of Appeals                                                              
and the Alaska Supreme Court.  He noted that the Alaska Court of                                                                
Appeals which deals exclusively with criminal convictions is                                                                    
excluded from the loop in HB 75, although the Alaska Court of                                                                   
Appeals has the most expertise and experience with criminal law.                                                                
Mr. Fleischer said that Alaska has not had a capital case in modern                                                             
history, but it has happened in other comparable states.                                                                        
                                                                                                                                
CHAIRMAN KOTT posed a situation in which a person is sentenced 99                                                               
years to life for murder.  The person serves 10 years and it is                                                                 
discovered that he/she did not commit the murder and he/she is                                                                  
released.  Has such a situation occurred in Alaska?                                                                             
                                                                                                                                
MR. FLEISCHER did not know of a such a case.  He offered to                                                                     
research that for the committee.                                                                                                
                                                                                                                                
Number 2056                                                                                                                     
                                                                                                                                
IAN OLSON next came forward to testify.  Mr. Olson said that he                                                                 
wanted to direct his comments toward finding a better solution.                                                                 
Thus far, 14 people have testified in opposition to HB 75; not one                                                              
person has testified in support of HB 75 which he believed to be                                                                
significant.  Mr. Olson directed the committee's attention to the                                                               
fiscal note which he understood to mean that in the fiscal year                                                                 
2005, the state would face about $1 million per year to merely run                                                              
the system of the death penalty.  He emphasized that is just to run                                                             
the system, but does not include the cost to kill someone.                                                                      
Furthermore, it seems that only one or two cases are expected per                                                               
year.  That is a lot of money and the cost increases each year.                                                                 
Mr. Olson commented that the death penalty is a reactive system.                                                                
                                                                                                                                
MR. OLSON suggested that the solution is a proactive system which                                                               
funds child programs.  Programs promoting alcohol awareness and gun                                                             
safety should be funded.  If the reactive system is chosen, Mr.                                                                 
Olson believed Alaska would enter into a slippery slope with which                                                              
there seems to be a prioritizing of whose life is more valuable                                                                 
than another.  He stressed that a child's life is the most                                                                      
valuable, but the slippery slope will open it up to others.  Mr.                                                                
Olson emphasized the need to be proactive.  With regard to                                                                      
Representative Masek's comment that HB 75 is a success even if it                                                               
only kills one person who has killed a child, Mr. Olson questioned,                                                             
"What if we were to install a proactive system that saved one                                                                   
child, would she still wonder if this is a success?  Would she                                                                  
still wonder if a proactive system is a success if we have it save                                                              
just one child?"  In conclusion, Mr. Olson expressed the need to                                                                
give HB 75 the upmost attention.                                                                                                
                                                                                                                                
CHAIRMAN KOTT pointed out that Mr. Olson's fiscal estimate was                                                                  
conservative because he was looking at only one of the three fiscal                                                             
notes to HB 75.                                                                                                                 
                                                                                                                                
Number 2384                                                                                                                     
                                                                                                                                
CAMI MOLINE was next to testify.  She informed the committee that                                                               
she grew up living on the grounds of federal correctional                                                                       
institutions as her father is Mr. Campbell.  She has listened for                                                               
years to the discussion regarding what does and does not work.  Ms.                                                             
Moline noted that she has worked in corrections in Alaska and                                                                   
elsewhere with juvenile offenders.  Currently, she is a                                                                         
stay-at-home mom who tells who two sons that peace, justice, and                                                                
truth should constantly be sought.  She hoped the committee would                                                               
support that, as legislators have the opportunity to exemplify                                                                  
these pursuits in leadership.  This is a deeply emotional issue; so                                                             
much so that peace, justice, truth, and facts can become elusive.                                                               
She discussed the unimaginable feelings of the families' of                                                                     
victims, but noted that taking the life of another in revenge never                                                             
resurrects the lost loved one.  Peace does not come by these means.                                                             
She echoed the comments regarding the disproportionate numbers of                                                               
poor, males of minorities who have been chosen to be deserving of                                                               
execution.  People of resources can avoid conviction.                                                                           
                                                                                                                                
TAPE 99-31, SIDE B                                                                                                              
                                                                                                                                
MS. MOLINE indicated that life imprisonment is an option at a far                                                               
less cost.  She reiterated the fiscal concerns surrounding                                                                      
instating the death penalty.  Ms. Moline requested that the                                                                     
committee put aside HB 75.                                                                                                      
                                                                                                                                
Number 0038                                                                                                                     
                                                                                                                                
ELLEN CAMPBELL next came before the committee.  She noted a                                                                     
conversation with one of her friends who found it difficult to                                                                  
believe that life imprisonment was cheaper than capital punishment.                                                             
This lead Ms. Campbell to think of all the reasons why one cannot                                                               
say that one life is not worthy of further existence.  Life is                                                                  
God's gift.  She informed the committee that she has known persons                                                              
with serious crimes in their past and others who, had the death                                                                 
penalty existed, would have lost their redemptive years and the                                                                 
world would have been poorer.  Ms. Campbell said that the public                                                                
wants the legislature to vote to express its wishes.  The public                                                                
wants crime, hideous crimes to be stopped.  She commented that                                                                  
those who are most seriously deranged are not responsible as we are                                                             
sitting here.  Ms. Campbell said, "You have been elected for where                                                              
the truth is.  You are informed.  You can bring enlightenment to                                                                
people who, in their fear and in their frustration, say we have to                                                              
end it so let's kill them, not knowing that forces and energy and                                                               
money go to wiping out some pitiful, unrepresented, poorly                                                                      
represented minority."  In conclusion, Ms. Campbell quoted a verse                                                              
in the Bible saying, "'Who knows, but for such a time as this you                                                               
can into the kingdom.'  Who knows, but for such a time as this you                                                              
were elected to the legislature to represent what is right and good                                                             
for people and I pray that you will exercise your responsibility                                                                
intelligently and with commitment and courage."                                                                                 
                                                                                                                                
CHAIRMAN KOTT announced that HB 75 would be put aside until                                                                     
tomorrow for those to testify who were not able to today.                                                                       
                                                                                                                                
CSSB 57(FIN) - CARE FOR VULNERABLE ADULTS                                                                                       
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is CSSB 57(FIN),                                                             
"An Act relating to vulnerable adults; and providing for an                                                                     
effective date."                                                                                                                
                                                                                                                                
CHAIRMAN KOTT stated that HB 147 and SB 57 started off looking very                                                             
similar.  There have been some changes to the Senate version, which                                                             
is before the committee.  The house version is DOA [dead on                                                                     
arrival].                                                                                                                       
                                                                                                                                
Number 0312                                                                                                                     
                                                                                                                                
SHEILA PETERSON, Legislative Assistant to Senator Gary Wilken,                                                                  
Alaska State Legislature, came before the committee and presented                                                               
the sponsor statement.  She noted that Senator Wilken was the                                                                   
co-chair to the Long-Term Care Task Force during the interim.  It                                                               
met to study issues facing senior citizens and adults with                                                                      
disabilities.  It made 31 recommendations, of which, 4 included                                                                 
legislation.  The bill before the committee is one of the four.                                                                 
                                                                                                                                
MS. PETERSON stated that SB 57 would enhance the protective                                                                     
services afforded to vulnerable adults by reducing the possibility                                                              
of exploitation or abuse by guardians.  Under the current law, the                                                              
Department of Administration must immediately terminate an                                                                      
investigation of abuse upon the request of a vulnerable adult who                                                               
is the subject of the report.  Unfortunately, in some rare                                                                      
instances the person subject to the investigation might be the                                                                  
guardian or attorney-of-fact or surrogate decision maker.  This                                                                 
would allow the department to continue the investigation, even if                                                               
the guardian asks to have it terminated.  It would close a small                                                                
loophole in statute.  She noted that the Senate raised the standard                                                             
of scrutiny to probable [page 1, line 7].  She announced she has an                                                             
amendment that would allow for the need of a legislator to access                                                               
a report.                                                                                                                       
                                                                                                                                
Number 0445                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced there are two amendments.  He labeled them                                                              
as "Amendment 1" and "Amendment 2".                                                                                             
                                                                                                                                
MS. PETERSON explained Amendment 1 is to clarify a run-on sentence.                                                             
It reads as follows:                                                                                                            
                                                                                                                                
Page 1, line 6:                                                                                                                 
                                                                                                                                
          Delete "unless [.  HOWEVER, IF]"                                                                                      
                                                                                                                                
          Insert ".  However, the department or its designee may                                                                
          not terminate the investigation if"                                                                                   
                                                                                                                                
     Page 1, line 8, following "services,"                                                                                      
                                                                                                                                
          Insert "and"                                                                                                          
                                                                                                                                
Number 0528                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to adopt Amendment 1.  There                                                                 
being no objection, it was so moved.                                                                                            
                                                                                                                                
CHAIRMAN KOTT explained Amendment 2 deals with confidentiality                                                                  
reports and allows legislators to have access to them.  It reads as                                                             
follows:                                                                                                                        
                                                                                                                                
     Sec. 47.24.050.  Confidentiality of reports.  (a)                                                                          
     Investigation reports and reports of the abandonment,                                                                      
     exploitation, abuse, neglect, or self-neglect of a                                                                         
     vulnerable adult filed under this chapter are                                                                              
     confidential and are not subject to public inspection and                                                                  
     copying under AS 09.25.110 - 09.25.125.  However, in                                                                       
     accordance with this chapter and regulations adopted                                                                       
     under this chapter, investigation reports may be used by                                                                   
     appropriate agencies, legislators, or other individuals                                                                    
     involving the abandonment, exploitation, abuse, neglect,                                                                   
     or self-neglect of a vulnerable adult.                                                                                     
                                                                                                                                
Number 0548                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT made a motion to adopt Amendment 2.                                                                        
                                                                                                                                
REPRESENTATIVE KERTTULA objected for discussion purposes.   She                                                                 
asked Ms. Peterson whether Amendment 2 would allow legislators to                                                               
have actual names and files on individuals.  In other words, what                                                               
kind of information would this put out to the public?                                                                           
                                                                                                                                
Number 0577                                                                                                                     
                                                                                                                                
MS. PETERSON replied this was proposed in the House Health,                                                                     
Education and Social Services Standing Committee as similar                                                                     
legislation which allows a legislator to have access to child                                                                   
support enforcement cases with the intent of helping or assisting                                                               
a constituent.  She assumes that the information currently                                                                      
available to the appropriate agencies would be the same type of                                                                 
information that would be available to legislators.  This would not                                                             
expand the information currently available to those two entities.                                                               
In further response to Representative Kerttula, Ms. Peterson                                                                    
clarified that it would give the actual name and circumstances                                                                  
behind the investigation.                                                                                                       
                                                                                                                                
Number 0635                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT stated that is his understanding as well.  The case                                                               
file or some part of it would be given.  He asked Ms. Peterson what                                                             
protections are there now to ensure that those who can access a                                                                 
report keep it confidential.  Is there a penalty?                                                                               
                                                                                                                                
Number 0661                                                                                                                     
                                                                                                                                
MS. PETERSON replied that was not discussed in the Senate, but in                                                               
accordance with her experience in similar situations, confidential                                                              
information is not given freely, and there probably would be some                                                               
ownership on the individual legislator who is making the request to                                                             
keep it confidential.                                                                                                           
                                                                                                                                
Number 0695                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Ms. Peterson whether there is anything in the                                                               
bill that allows for legislative staff to have access to a report.                                                              
The way he reads the bill, it is for the use of the legislator only                                                             
and that use cannot be extended to anybody else.                                                                                
                                                                                                                                
MS. PETERSON replied she doesn't know whether there is a definition                                                             
dealing with this that expands use to legislative staff.                                                                        
                                                                                                                                
Number 0739                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN explained that the idea was for the legislator                                                             
and not the legislator's staff, as discussed in the House Health,                                                               
Education and Social Services Standing Committee.  There was                                                                    
concern and discussion on maintaining confidentiality which is why                                                              
the access was restricted.  He's not sure whether the wording in                                                                
Amendment 2 maintains that restriction, however.                                                                                
                                                                                                                                
Number 0777                                                                                                                     
                                                                                                                                
MS. PETERSON stated Senator Wilken feels very strongly about the                                                                
initial bill and the importance in protecting vulnerable adults.                                                                
He would support passing the bill without the amendment.                                                                        
                                                                                                                                
CHAIRMAN KOTT stated that this was not part of the original task                                                                
force recommendation.                                                                                                           
                                                                                                                                
MS. PETERSON replied correct.                                                                                                   
                                                                                                                                
Number 0800                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT removed his motion to adopt Amendment 2.  He                                                               
doesn't want to slow down the bill.                                                                                             
                                                                                                                                
Number 0824                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA withdrew her objection.  She doesn't want                                                               
to see this type of information being spread around to                                                                          
inappropriate people, but at the same time she doesn't want to stop                                                             
appropriate investigations.                                                                                                     
                                                                                                                                
Number 0861                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA made a motion to move CSSB 57(FIN), as                                                                  
amended, from the committee with individual recommendations and the                                                             
attached fiscal note(s).  There being no objection, HCS CSSB
57(JUD) was so moved from the House Judiciary Standing Committee.                                                               
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 4:08 p.m.                                                                                                            

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