Legislature(1999 - 2000)
04/14/1999 01:20 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.