Legislature(2005 - 2006)CAPITOL 120

02/08/2006 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
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Heard & Held
<Bill Hearing Canceled>
Moved Out of Committee
+= Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 321(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                        February 8, 2006                                                                                        
                           1:14 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson                                                                                                     
Representative John Coghill                                                                                                     
Representative Pete Kott                                                                                                        
Representative Peggy Wilson                                                                                                     
Representative Les Gara                                                                                                         
MEMBERS ABSENT                                                                                                                
Representative Max Gruenberg                                                                                                    
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 321                                                                                                              
"An  Act relating  to high  risk  operation of  a motor  vehicle,                                                               
aircraft,  or   watercraft  while  under  the   influence  of  an                                                               
alcoholic  beverage, inhalant,  or  controlled  substance and  to                                                               
refusal to submit to a chemical test."                                                                                          
     - MOVED CSHB 321(JUD) OUT OF COMMITTEE                                                                                     
HOUSE BILL NO. 353                                                                                                              
"An Act relating to sentences for sexual offenses."                                                                             
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 363                                                                                                              
"An  Act   increasing  the  number   of  superior   court  judges                                                               
designated   for  the   third  judicial   district,  to   provide                                                               
additional  superior  court  judges  at  Anchorage,  Palmer,  and                                                               
Kenai; and providing for an effective date."                                                                                    
     - MOVED HB 363 OUT OF COMMITTEE                                                                                            
HOUSE BILL NO. 339                                                                                                              
"An Act  relating to  the definition of  'victim' in  relation to                                                               
crime;  and relating  to parole  board  hearings and  information                                                               
provided to the public by the parole board."                                                                                    
     - BILL HEARING CANCELED                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 321                                                                                                                  
SHORT TITLE: AGGRAVATED DRUNK DRIVING                                                                                           
SPONSOR(S): REPRESENTATIVE(S) RAMRAS                                                                                            
01/09/06       (H)       PREFILE RELEASED 12/30/05                                                                              
01/09/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (H)       JUD, FIN                                                                                               
01/18/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/18/06       (H)       Scheduled But Not Heard                                                                                
01/25/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/25/06       (H)       Heard & Held                                                                                           
01/25/06       (H)       MINUTE(JUD)                                                                                            
01/27/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/27/06       (H)       Heard & Held                                                                                           
01/27/06       (H)       MINUTE(JUD)                                                                                            
02/08/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 353                                                                                                                  
SHORT TITLE: SENTENCING FOR SEXUAL OFFENSES                                                                                     
SPONSOR(S): REPRESENTATIVE(S) NEUMAN, LYNN                                                                                      
01/09/06       (H)       PREFILE RELEASED 1/6/06                                                                                
01/09/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (H)       JUD, FIN                                                                                               
02/03/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/03/06       (H)       <Bill Hearing Canceled>                                                                                
02/08/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                           
BILL: HB 363                                                                                                                  
SHORT TITLE: ADDITIONAL JUDGES FOR THIRD DISTRICT                                                                               
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
01/13/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/13/06       (H)       JUD, FIN                                                                                               
02/08/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
JANE PIERSON, Staff                                                                                                             
to Representative Jay Ramras                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Explained the proposed CS for HB 321,                                                                      
Version Y, on behalf of the sponsor, Representative Ramras.                                                                     
JAMES A. HELGOE, Lieutenant, Legislative Liaison                                                                                
Division of Alaska State Troopers                                                                                               
Department of Public Safety (DPS)                                                                                               
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   Testified that  HB 321  is a  step in  the                                                               
right direction.                                                                                                                
REPRESENTATIVE JAY RAMRAS                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 321.                                                                                         
SUSAN A. PARKES, Deputy Attorney General                                                                                        
Criminal Division                                                                                                               
Office of the Attorney General                                                                                                  
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    During discussion  of  HB  321,  answered                                                               
questions regarding  interlock devices; provided  comments during                                                               
discussion  of  HB  353;  presented  HB  363  on  behalf  of  the                                                               
REPRESENTATIVE MARK NEUMAN                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  One of the prime sponsors of HB 353.                                                                       
REX SHATTUCK, Staff                                                                                                             
to Representative Mark Neuman                                                                                                   
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Discussed  the importance of proportionality                                                               
in  HB  353 on  behalf  of  one  of  the bill's  prime  sponsors,                                                               
Representative Neuman.                                                                                                          
PORTIA PARKER, Deputy Commissioner                                                                                              
Office of the Commissioner - Juneau                                                                                             
Department of Corrections (DOC)                                                                                                 
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    Testified  in   support  of  HB  353  and                                                               
discussed the treatment of sex offenders.                                                                                       
LEONARD M. LINTON, JR., District Attorney                                                                                       
3rd Judicial District(Anchorage)                                                                                                
District Attorneys                                                                                                              
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   During discussion  of HB 363,  relayed that                                                               
he did not object to passage of the bill.                                                                                       
LARRY COHN, Executive Director                                                                                                  
Alaska Judicial Council (AJC)                                                                                                   
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Asked a  question  during  discussion  of                                                               
HB 363.                                                                                                                         
ACTION NARRATIVE                                                                                                              
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order at  1:14:14  PM.    Representatives                                                             
McGuire, Anderson, Coghill,  and Wilson were present  at the call                                                               
to order.   Representative Gara  and Kott arrived as  the meeting                                                               
was in progress.                                                                                                                
HB 321 - AGGRAVATED DRUNK DRIVING                                                                                             
1:14:58 PM                                                                                                                    
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE  BILL NO. 321, "An  Act relating to high  risk operation                                                               
of  a motor  vehicle,  aircraft, or  watercraft  while under  the                                                               
influence  of  an  alcoholic beverage,  inhalant,  or  controlled                                                               
substance and to refusal to submit  to a chemical test."  [Before                                                               
the committee was  the proposed committee substitute  (CS) for HB                                                               
321,  Version 24-LS1099\F,  Luckhaupt,  1/16/06,  which had  been                                                               
adopted as  a work draft  on 1/25/06; left pending  from 1/27/06,                                                               
and not addressed  further during this meeting,  was the question                                                               
of whether to adopt an Amendment 3 to Version F.]                                                                               
1:15:33 PM                                                                                                                    
REPRESENTATIVE  WILSON  made  a  motion  to  adopt  the  proposed                                                               
committee  substitute  (CS)  for  HB  321,  Version  24-LS1099\Y,                                                               
Luckhaupt,  1/30/06,  as   the  work  draft.     There  being  no                                                               
objection, Version Y was before the committee.                                                                                  
1:15:49 PM                                                                                                                    
JANE PIERSON,  Staff to Representative  Jay Ramras,  Alaska State                                                               
Legislature,  sponsor,  explained  on  behalf  of  Representative                                                               
Ramras  that  Version  Y  [contains   a  new]  Section  3,  which                                                               
clarifies that a person convicted  of driving under the influence                                                               
(DUI)  with a  high  blood alcohol  concentration  (BAC) will  be                                                               
subject  to  the  enhanced  penalties   in  accordance  with  the                                                               
previous number of DUIs he/she has been convicted of.                                                                           
REPRESENTATIVE ANDERSON  asked whether HB 321  will substantially                                                               
curb drinking and driving.                                                                                                      
JAMES  A. HELGOE,  Lieutenant, Legislative  Liaison, Division  of                                                               
Alaska  State  Troopers,  Department   of  Public  Safety  (DPS),                                                               
offered his belief that HB 321  is a step in the right direction.                                                               
There are many  factors contributing to the  problem of [drinking                                                               
and driving in  Alaska].  The media and  law enforcement agencies                                                               
throughout Alaska are attempting  to increase public awareness as                                                               
well as voluntary  compliance.  He opined  that tougher penalties                                                               
is a  means of  educating the  public that it  will be  held more                                                               
accountable   [for  drinking   and   driving],  whether   through                                                               
increased [fees] or longer jail time.                                                                                           
1:20:44 PM                                                                                                                    
REPRESENTATIVE JAY RAMRAS, Alaska  State Legislature, sponsor, in                                                               
response to  a question, relayed HB  321 is endorsed by  both the                                                               
Cabaret  Hotel Restaurant  & Retailer's  Association (CHARR)  and                                                               
Mothers Against  Drunk Driving MADD.   He noted that  he attended                                                               
10-15 meetings of  the Fairbanks MADD chapter  and initially they                                                               
were  reluctant to  endorse HB  321 because  they didn't  want to                                                               
differentiate  between "drunk"  and  "really drunk."   It  wasn't                                                               
until other MADD chapters around  the country began to endorse it                                                               
that the  local MADD  chapter "came around."   The  Cabaret Hotel                                                               
Restaurant & Retailer's Association,  on the other hand, embraced                                                               
HB 321 initially  at its annual convention  because it recognized                                                               
that  it's not  the intent  of  the hospitality  and/or food  and                                                               
beverage industry to put drunk people out on the road.                                                                          
REPRESENTATIVE  RAMRAS  noted  that  31 states  have  adopted  an                                                               
aggravated drunk driving law.   Currently, there is one threshold                                                               
for drunk driving, which is .08  BAC.  He expressed his hope that                                                               
[HB 321 will  result in] safer roads.  He  noted that he explored                                                               
the issue of  federal grants and found that  Alaska can't qualify                                                               
unless  it  adopts several  provisions  outlined  by the  federal                                                               
government.  He  informed the committee that the  fiscal note for                                                               
HB 321 is $1.2 million.                                                                                                         
1:27:15 PM                                                                                                                    
REPRESENTATIVE  WILSON  asked  Representative Ramras  whether  he                                                               
feels that [Alaskans] who "don't have  that much of a problem but                                                               
just have  to be  careful of  how much they  drink" are  going to                                                               
[take  notice of  HB  321].   She  opined  that  those whom  [the                                                               
legislature] is concerned  about aren't going to be  aware of how                                                               
high his/her BAC is.                                                                                                            
REPRESENTATIVE RAMRAS relayed that  in states where an aggravated                                                               
drunk  driving   law  has  been   passed  and   implemented,  the                                                               
recidivism  has  decreased.   He  noted  that license  suspension                                                               
isn't working since there are  people who have had their licenses                                                               
suspended  for a  lifetime but  are still  driving and  are still                                                               
getting  [DUIs].   He suggested  that for  those people  the bill                                                               
will put them in jail longer and  thereby act as a deterrent.  He                                                               
noted that  felony drunk  driving is already  "on the  books" and                                                               
that it's not that successful  against chronic drunk drivers.  He                                                               
posed the  questions of whether HB  321 will lead to  safer roads                                                               
and  greater public  safety, and  whether  it will  be worth  the                                                               
fiscal  note of  $1.2 million.   He  answered, "A  resounding yes                                                               
because it has the potential of changing behavior."                                                                             
REPRESENTATIVE WILSON, in regard to  the states that have already                                                               
adopted [an aggravated drunk driving  law], asked what the impact                                                               
has been.                                                                                                                       
REPRESENTATIVE  RAMRAS   referred  Representative  Wilson   to  a                                                               
document in the packet that addressed her question.                                                                             
REPRESENTATIVE GARA relayed  that he's not convinced  that HB 321                                                               
is going to  make major changes in recidivism  rates or behavior.                                                               
State law  currently doesn't allow  the use of  interlock devices                                                               
to prevent  people from  driving as a  condition of  probation if                                                               
one has been convicted of a felony [DUI].  He asked why that is.                                                                
1:33:48 PM                                                                                                                    
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office of the Attorney General,  Department of Law (DOL), relayed                                                               
that  the  statute may  not  require  [the  use of  an  interlock                                                               
device] in felony  [cases], but she doesn't know  why it couldn't                                                               
simply be a condition of probation.                                                                                             
REPRESENTATIVE  GARA  asked  whether  [the use  of  an  interlock                                                               
device] is required in misdemeanor DUI cases.                                                                                   
MS. PARKES  relayed her understanding that  in certain instances,                                                               
[interlock devices] are  required or order for a person  to get a                                                               
limited license, but said she would research that issue further.                                                                
CHAIR McGUIRE inquired as to  whether driving under the influence                                                               
of marijuana would be considered a DUI.                                                                                         
MS.  PARKES indicated  that driving  under the  influence of  any                                                               
drug or alcohol  is a DUI crime.  However,  "drug driving" cases,                                                               
whether  involving OxyContin,  methamphetamine, or  marijuana are                                                               
much more  difficult to prosecute  in terms of proving  the level                                                               
of intoxication;  for example, in  regard to  marijuana, specific                                                               
blood tests have to  be conducted and one has to  be able to show                                                               
that tetrahydrocannabinol  (THC) was  active in  the body  at the                                                               
time of the driving.                                                                                                            
CHAIR  McGUIRE   remarked  that  she's  heard   that  judges  are                                                               
routinely  throwing out  evidence related  to [driving  under the                                                               
influence  of] marijuana  on the  grounds that  that evidence  is                                                               
more prejudicial  that probative.   She asked, "Is it  a question                                                               
of changing the law  or is it a question of  funding or coming up                                                               
with  a test  that's more  accurate  in showing  how those  other                                                               
drugs also [influence driving]?"                                                                                                
MS.  PARKES, in  response to  questions, reiterated  that [people                                                               
who are driving under the influence  of drugs] are subject to the                                                               
same penalties as  those driving under the  influence of alcohol,                                                               
but it's  just much  more difficult  to prove  those cases.   The                                                               
problem with  drugs, especially when [the  drugs] are interacting                                                               
with  alcohol, is  that there  are differences  in body  type and                                                               
tolerance, and standard  levels haven't been set  for every drug,                                                               
although  the  Division of  Alaska  State  Troopers has  recently                                                               
[employed]  certified drug  recognition  experts.   The  specific                                                               
problem with  marijuana is that THC  remains in one's body  up to                                                               
30 days after one has used  marijuana.  To determine whether it's                                                               
just still  in one's body because  he/she got high two  weeks ago                                                               
or because  he/she just got high  and got in his/her  car takes a                                                               
very  specific test  that state's  crime  lab doesn't  do.   When                                                               
"drug driving"  cases are prosecuted,  the tests have to  be sent                                                               
to an outside laboratory to  determine whether [THC] was actually                                                               
active in one's body.                                                                                                           
1:38:30 PM                                                                                                                    
CHAIR McGUIRE remarked that the  more severe the penalties become                                                               
for  DUI and  the  focus being  on  alcohol, questions  regarding                                                               
drugs arise.  When new  crimes or enhanced penalties for existing                                                               
crimes are  being considered, recidivism  and deterrence  are not                                                               
the only  things that are  looked at.   She added that  there are                                                               
graduated penalties for the severity of crimes.                                                                                 
REPRESENTATIVE  GARA  offered  his   understanding  that  in  the                                                               
"seriously  high"  BAC  level  cases,   the  courts  are  already                                                               
imposing longer sentences,  adding that he's worried  that HB 321                                                               
is going  to send a  message that driving with  a BAC of  .159 is                                                               
okay.    Therefore, why  run  that  risk  if judges  are  already                                                               
imposing longer sentences for higher BACs?                                                                                      
REPRESENTATIVE RAMRAS  clarified that his  approach is to  set an                                                               
aggravated  drunk  driving  standard to  discourage  people  from                                                               
drinking and  driving.  The  very first  thing that goes  out the                                                               
window  when  one  has  been   drinking  is  his/her  ability  to                                                               
reason/think rationally.                                                                                                        
REPRESENTATIVE GARA expressed his  interest in adding a provision                                                               
that would require the use of interlock devices.                                                                                
1:49:36 PM                                                                                                                    
MS. PARKES referred to AS 12.55.102, which read:                                                                                
     (a) The court may order  as a condition of probation or                                                                    
     generally  as  part  of a  sentence  that  a  defendant                                                                    
     convicted   of   an    offense   involving   the   use,                                                                    
     consumption,  or possession  of  an alcoholic  beverage                                                                    
     may not  operate a motor  vehicle during the  period of                                                                    
     probation  unless  the  vehicle   is  equipped  with  a                                                                    
     properly   functioning,   monitored,   and   maintained                                                                    
     ignition interlock device.                                                                                                 
MS. PARKES added  that it's clear that [an  interlock device] can                                                               
be ordered in DUIs or  any alcohol-related offense.  She referred                                                               
to  AS  28.15.201, which  read  in  part:    "(ii) the  court  or                                                               
department  requires  the person  to  use  an ignition  interlock                                                               
device during the period of the limited license;".                                                                              
REPRESENTATIVE GARA said that he  would drop the interlock device                                                               
idea until later,  and remarked that there's a  certain amount of                                                               
logic  to HB  321, so  he's partially  supportive of  it; HB  321                                                               
addresses people  who are so  irresponsible that they  won't stop                                                               
drinking.   He again  expressed his  concern, however,  about the                                                               
state advertising  that .16 BAC  is no longer  tolerated, because                                                               
that will imply that driving with lower BAC levels is okay.                                                                     
1:53:22 PM                                                                                                                    
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  1, which                                                               
read [original punctuation provided]:                                                                                           
     In any public relations efforts  by the state to inform                                                                    
     the  public  about  AS  28.35.030(b)(1)(B),  the  state                                                                    
     shall  in no  way minimize  the danger  of intoxication                                                                    
     below  those levels  while  driving,  and shall  advise                                                                    
     that intoxication  below those  levels is  also illegal                                                                    
     and/or dangerous.                                                                                                          
REPRESENTATIVE COGHILL objected.                                                                                                
REPRESENTATIVE GARA  explained that Amendment 1  provides that if                                                               
the State of Alaska begins  advertising the dangers of driving at                                                               
a .16  BAC and  above, it  also needs  to emphasize  that driving                                                               
drunk at all  is dangerous and unacceptable.  He  said he doesn't                                                               
want the  State of Alaska  to put money into  anything suggesting                                                               
that driving  with something  less than a  .16 BAC  is acceptable                                                               
REPRESENTATIVE   RAMRAS  said   that   he  did   not  object   to                                                               
Amendment 1.                                                                                                                    
REPRESENTATIVE  COGHILL indicated  that  he is  not  in favor  of                                                               
having the language  in Amendment 1 listed in  statute, and would                                                               
therefore vote against it.                                                                                                      
REPRESENTATIVE  WILSON added  that  she would  also vote  against                                                               
Amendment 1 because she doesn't  feel that such language needs to                                                               
be put in statute.                                                                                                              
REPRESENTATIVE ANDERSON inquired about a letter of intent.                                                                      
1:55:49 PM                                                                                                                    
REPRESENTATIVE GARA withdrew Amendment 1.                                                                                       
1:55:58 PM                                                                                                                    
REPRESENTATIVE   GARA  made   a   motion   to  adopt   Conceptual                                                               
Amendment 2, to add to the  uncodified law [the text of Amendment                                                               
1],  thereby  sending a  message  to  the current  administration                                                               
and/or future  administrations to  think through  its advertising                                                               
campaign.  There  being no objection, Conceptual  Amendment 2 was                                                               
1:56:36 PM                                                                                                                    
REPRESENTATIVE ANDERSON  moved to report  the proposed CS  for HB                                                               
321, Version 24-LS1099\Y, Luckhaupt,  1/30/06, as amended, out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.                                                                                                                   
REPRESENTATIVE COGHILL  objected.   He relayed that  he's against                                                               
drunk driving,  but is not convinced  that HB 321 is  going to do                                                               
what Representative Ramras intends for it  to do.  He's said that                                                               
although  he's convinced  that  HB 321  will  change the  state's                                                               
behavior,  he  is  not  convinced that  it  will  change  drunken                                                               
driving behavior.                                                                                                               
REPRESENTATIVE COGHILL then withdrew his objection.                                                                             
CHAIR McGUIRE asked whether there  were any further objections to                                                               
reporting  the  bill from  committee.    There being  none,  CSHB                                                               
321(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
HB 353 - SENTENCING FOR SEXUAL OFFENSES                                                                                       
[Contains brief mention of SB 218.]                                                                                             
1:59:15 PM                                                                                                                    
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL NO.  353, "An  Act relating  to sentences  for sexual                                                               
1:59:45 PM                                                                                                                    
REPRESENTATIVE  WILSON  moved  to adopt  the  proposed  committee                                                               
substitute  (CS)  for  HB 353,  Version  24-LS1449\G,  Luckhaupt,                                                               
2/2/06, as the  work draft.  There being no  objection, Version G                                                               
was before the committee.                                                                                                       
1:59:59 PM                                                                                                                    
REPRESENTATIVE MARK NEUMAN, Alaska  State Legislature, one of the                                                               
prime  sponsors of  HB  353,  explained that  HB  353 deals  with                                                               
sentencing  for  sexual  offenses.   The  bill  will  essentially                                                               
double the present presumptive sentencing  for all sexual assault                                                               
crimes, sexual abuse  of a minor crimes, and a  few other similar                                                               
crimes,  thereby sending  a clear  message of  zero tolerance  to                                                               
anybody contemplating  or involved in these  most egregious acts.                                                               
The bill  also provides  for periodic  polygraph testing  for sex                                                               
offenders  on  probation,  which  will  give  the  Department  of                                                               
Corrections  (DOC)  an  additional  tool  to  identify  potential                                                               
repeat offenders before another child is victimized.                                                                            
REPRESENTATIVE NEUMAN  commented that  with the amount  of sexual                                                               
assault crimes  on the rise  in Alaska and the  increased numbers                                                               
of Alaskans speaking  out, it's time to toughen the  laws.  Other                                                               
states  have enacted,  or are  in the  process of  enacting, laws                                                               
with  stiffer  penalties  for  those  who  commit  these  heinous                                                               
crimes.  According  to statistics compiled by  the Federal Bureau                                                               
of Investigation  (FBI), Alaska has  the highest per  capita rate                                                               
of reported  rapes, and  that rate is  nearly 71  percent greater                                                               
than that  of the next highest  state.  According to  the report,                                                               
"Making Sense  of Rape  in America:   Where  Do the  Numbers Come                                                               
From and What Do They Mean?",  the reporting of these cases is as                                                               
low as 16 percent.  Arrest rates  are also low, with as few as 27                                                               
percent  of reported  crimes resulting  in arrest.   Furthermore,                                                               
Alaska  has 4,300  registered sex  offenders.   He remarked  that                                                               
these  figures lead  him to  the  conclusion that  the number  of                                                               
actual sex offenders in Alaska is significantly higher.                                                                         
REPRESENTATIVE  NEUMAN  relayed that  there's  no  record of  any                                                               
treatment  or  therapy  having any  significant  effects  on  sex                                                               
offender recidivism rates.  However,  there are steps that can be                                                               
taken to  reduce repeat offenses.   Longer sentences  will ensure                                                               
that the most  dangerous offenders are kept  away from [Alaska's]                                                               
children.    He informed  the  committee  that regular  polygraph                                                               
testing for all sexual offenders has  proven to have an effect on                                                               
sexual behavior.   Supervision of offenders  with polygraph tests                                                               
has lead to a 69  percent compliance with probation requirements,                                                               
while supervision without  polygraph tests has lead to  only a 26                                                               
percent compliance  rate.  He  opined that requiring  a probation                                                               
period  as  part of  a  sentence,  along with  mandating  regular                                                               
polygraph tests, will make Alaska  safer and reduce the number of                                                               
sexual  assault  over time.    He  further opined  that  adopting                                                               
HB 353 is imperative if they  want to change Alaska's position as                                                               
the number one state in the  nation with regard to sexual assault                                                               
and sexual  abuse of  minors, and thereby  provide a  safer place                                                               
for Alaska's residents.                                                                                                         
2:03:20 PM                                                                                                                    
REPRESENTATIVE  ANDERSON  questioned  whether HB  353  will  curb                                                               
sexual offense behavior.                                                                                                        
REPRESENTATIVE NEUMAN  suggested that doubling the  sentences for                                                               
the aforementioned crimes will provide some continuity.                                                                         
REPRESENTATIVE  ANDERSON suggested  that  doing  so may  possibly                                                               
alleviate any potential court challenge.                                                                                        
REPRESENTATIVE NEUMAN relayed that the  fiscal note for HB 353 is                                                               
currently indeterminate.                                                                                                        
2:07:10 PM                                                                                                                    
REPRESENTATIVE  GARA  noted  that [proposed  AS  12.55.125(i)(3)]                                                               
pertains  to   sexual  assault  in   the  second   degree,  which                                                               
stipulates in part that engaging  in sexual contact with somebody                                                               
without  his/her  consent  is  a   class  B  felony.    He  asked                                                               
Representative Neuman  whether he had  a minimum number  of years                                                               
of jail time in mind for offenses involving sexual contact.                                                                     
REPRESENTATIVE NEUMAN indicated that he did not.                                                                                
REPRESENTATIVE  GARA  observed  that  HB  353  proposes  to  send                                                               
somebody to  jail for four  to eight  years for such  an offense.                                                               
He  asked  Representative  Neuman  whether he  thought  that  was                                                               
REPRESENTATIVE  NEUMAN  responded that  he  thinks  that that  is                                                               
something  for  the  court  to   decide  based  on  circumstances                                                               
surrounding the offense;  each case will have to be  decided on a                                                               
case-by-case basis.                                                                                                             
REPRESENTATIVE GARA pointed out, though,  that HB 353 won't leave                                                               
that decision to the court.                                                                                                     
2:10:34 PM                                                                                                                    
CHAIR  McGUIRE  asked  Representative   Gara  whether  he  has  a                                                               
constructive idea about how to remedy his particular concern.                                                                   
REPRESENTATIVE  GARA  offered  his  opinion  that  Representative                                                               
Neuman  doesn't recognize  the ramifications  of simply  doubling                                                               
REPRESENTATIVE  NEUMAN responded  that what  he tried  to provide                                                               
for proportionality  in the sentencing  structure, adding  HB 353                                                               
is meant to send a strong message.                                                                                              
REPRESENTATIVE GARA  explained that  the court currently  has the                                                               
flexibility to  reduce the sentence,  if it's really  minor, down                                                               
to two years.   He said that he agrees with  the concept that the                                                               
court should be  able to apply it to the  factual circumstance of                                                               
a case,  but HB 353  would take  that flexibility away  and would                                                               
mandate a minimum sentence of at least four years.                                                                              
CHAIR  McGUIRE explained  that what's  difficult in  establishing                                                               
mandatory minimum  sentences is that [legislators]  don't get the                                                               
opportunity to  sit as  judges in  front of  each of  these cases                                                               
with  unique circumstances.   Instead  [the committee]  is simply                                                               
saying what  the minimum sentence  will be in  every circumstance                                                               
and not allowing a judge or a jury to consider other factors.                                                                   
REPRESENTATIVE  KOTT referred  to [proposed  AS 12.55.125(i)(4)],                                                               
which pertains  in part  to sexual assault  in the  third degree.                                                               
He noted that  the proposed maximum term of  imprisonment is "not                                                               
more than 30 years", triple the current maximum sentence.                                                                       
2:17:43 PM                                                                                                                    
REX SHATTUCK,  Staff to Representative Mark  Neuman, Alaska State                                                               
Legislature,  one of  the  prime  sponsors of  HB  353, noted  on                                                               
behalf of Representative  Neuman that one of the  key things that                                                               
Legislative  Legal  and  Research  Services  pointed  out  during                                                               
drafting was  that proportionality was critical,  and so doubling                                                               
the minimum sentencing range was  the only scheme that they could                                                               
come up with that allowed proportionality throughout.                                                                           
REPRESENTATIVE GARA  remarked that  he doesn't  "buy" Legislative                                                               
Legal and Research Services' analysis  about proportionality.  He                                                               
said he doesn't think that  the sentences for all sexual offenses                                                               
should be increased.                                                                                                            
MR.  SHATTUCK noted  that at  the present  time, the  courts have                                                               
acknowledged present presumptive sentencing as acceptable.                                                                      
REPRESENTATIVE GARA  remarked that how long  someone is sentenced                                                               
for a certain  kind of conduct is  a policy call.   He added that                                                               
just  because the  sentence for  the most  significant crime  was                                                               
increased,  it  doesn't  have  to  be  increased  for  the  least                                                               
significant crime.                                                                                                              
CHAIR McGUIRE interjected that those  are two separate arguments.                                                               
She said  that if  there are  proportionality arguments  that the                                                               
drafter is advancing,  the committee should know  what those are.                                                               
However,  if it's  a  policy  call that's  being  made, that's  a                                                               
separate issue.   She asked whether judges in  Alaska are failing                                                               
to   provide  serious   sentences  for   very  serious   [sexual]                                                               
predators.  If  such is the case, that's  where mandatory minimum                                                               
sentencing plays a role.                                                                                                        
2:24:20 PM                                                                                                                    
REPRESENTATIVE  COGHILL  requested   information  regarding  past                                                               
sentencing and the  use of sentencing mitigators.   If the courts                                                               
are continually using mitigators  or aggravators, the legislature                                                               
should know about it.                                                                                                           
REPRESENTATIVE GARA distributed  a chart which lists  what HB 353                                                               
would do  in the various  crimes compared  to what has  been done                                                               
over the last few years as  the sentencing laws have changed.  He                                                               
informed  the committee  that he  had talked  to State  of Alaska                                                               
employees who  work in the  prison system with  sexual predators,                                                               
and his  understanding is that  in the youth system,  the success                                                               
rate of treating people so that  they don't reoffend is around 30                                                               
2:29:32 PM                                                                                                                    
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office  of  the  Attorney  General,   Department  of  Law  (DOL),                                                               
informed  the   committee  that   the  DOL   supports  increasing                                                               
sentences  for  sex  offenders  mainly for  the  reason  that  in                                                               
general, it appears that rehabilitation  efforts don't work; [the                                                               
bill]  will make  the streets  safer, though  the debate  on what                                                               
would be  the right number of  years to sentence someone  for the                                                               
aforementioned crimes  is a  policy call  for the  legislature to                                                               
make.  The DOL has been  working with Senators Bunde and Guess on                                                               
SB  218,  which  also  increases   felony  sentences  for  sexual                                                               
offenses, and the proportionality has been discussed.                                                                           
MS.  PARKES  explained that  proportionality  means  that as  the                                                               
offenses  become   more  serious,  the  penalties   becomes  more                                                               
serious, and  so the DOL  is concerned that the  legislature keep                                                               
in mind  how increasing sentences  for sexual  offenses interacts                                                               
with the sentencing  for other offenses.  For  example, murder in                                                               
the second  degree has a  mandatory minimum sentence of  10 years                                                               
and  a  maximum sentence  of  99  years.   When  the  legislature                                                               
decides on a  minimum number of years for  an unclassified sexual                                                               
offense, there needs  to be a clear policy statement  made on why                                                               
the  legislature feels  that that  offense should  have a  higher                                                               
mandatory  minimum  sentence than  the  crime  of murder  in  the                                                               
second degree.   Those are  the issues the  court is going  to be                                                               
looking at in reviewing the bill's increased sentences.                                                                         
MS. PARKES  noted that the  sentencing for  class B and  C felony                                                               
sexual  offenses  needs  careful review  because  those  offenses                                                               
involve a lot of different  conduct, including consensual conduct                                                               
and  teacher/student relationships.    The DOL's  recommendation,                                                               
therefore, is to have a wide range of sentences.                                                                                
CHAIR  McGUIRE requested  that Ms.  Parkes provide  the committee                                                               
with an official response, including  suggestions.  Chair McGuire                                                               
asked Ms.  Parkes whether she  is more comfortable with  [SB 218]                                                               
or HB 353.                                                                                                                      
MS. PARKES expressed  her support for the  polygraph provision of                                                               
SB 218  that is now  included in HB 353,  Version G.   She opined                                                               
that  that's a  very important  provision because  it's "the  one                                                               
little bit of preventative medicine."                                                                                           
CHAIR McGUIRE  requested the guidance  of Ms. Parkes  in tracking                                                               
what things  the DOL believes are  better in one bill  versus the                                                               
REPRESENTATIVE GARA  remarked that just because  the sentence for                                                               
the most  serious [crime]  is increased,  that doesn't  mean that                                                               
the sentence for the least serious has to be increased.                                                                         
MS. PARKES concurred.                                                                                                           
REPRESENTATIVE GARA  mentioned that  he is sympathetic  to giving                                                               
judges  more discretion  in increasing  the ranges  for the  more                                                               
serious crimes.   He  added that  he'd be  more sympathetic  to a                                                               
bill that  increased the [upper  ranges of the  minimum mandatory                                                               
sentences], but left the [lower ranges] as they are currently.                                                                  
2:36:41 PM                                                                                                                    
CHAIR  McGUIRE  suggested  that   [the  committee]  may  want  to                                                               
[increase the  sentences] for more serious  offenses and maintain                                                               
the judge's  discretion to use  the current sentencing  range for                                                               
less serious offenses.                                                                                                          
REPRESENTATIVE COGHILL concurred, adding that  as a result of the                                                               
range  of issues  [the court]  will be  dealing with,  a one-size                                                               
answer won't fit all circumstances.                                                                                             
REPRESENTATIVE  GARA noted  that even  the least  serious [sexual                                                               
offenses the bill addresses] are still felonies.                                                                                
2:39:39 PM                                                                                                                    
PORTIA PARKER, Deputy Commissioner,  Office of the Commissioner -                                                               
Juneau, Department  of Corrections (DOC), informed  the committee                                                               
that the DOC  supports HB 353 and is pleased  with the provisions                                                               
that have  been [inserted]  into Version G.   She  clarified that                                                               
HB 353 in no  way impacts juvenile sex offenders,  rather it only                                                               
impacts adult  sex offenders.   With regard to  treatment issues,                                                               
it's  very difficult  to determine  what works  and what  doesn't                                                               
work  with particular  offenders.   Adult  sex  offenders are  an                                                               
incredibly  diverse  group  - low-risk,  medium-risk,  high-risk,                                                               
extremely high-risk.  The danger  that a sex offender presents to                                                               
society is  based on how many  crimes he/she will commit,  or may                                                               
commit,  or  has committed,  and  the  harm  he/she does  to  the                                                               
victim, which can range drastically.   She relayed that there are                                                               
things the DOC is able to  do to mitigate that risk upon release,                                                               
one  of them  being  treatment in  the  community with  intensive                                                               
supervision,  including using  the  polygraph as  a component  of                                                               
treatment to try to control  and alter the behavior of offenders.                                                               
She added that this is "very, very difficult to do."                                                                            
MS. PARKER remarked that there  has been some success with lower-                                                               
risk offenders or  offenders who are highly  motivated to change.                                                               
Those who are not motivated to  change are much more difficult to                                                               
influence.  Most sex offender  treatment providers will never say                                                               
that  treatment  will  cure  a sex  offender,  because  it's  not                                                               
possible.   A  sex offender  is engaged  in a  relapse prevention                                                               
plan   and  cognitive-behavioral   [therapy].     Increasing  the                                                               
mandatory minimum  sentences for repeat Class  A and unclassified                                                               
felony  sex offenders  is  how  the public  is  protected.   With                                                               
lower-risk  sex   offenders,  there's   a  chance   that  current                                                               
prevention programs  that focus  specifically on  those offenders                                                               
will be much more cost-effective for the state.                                                                                 
2:43:16 PM                                                                                                                    
MS.  PARKER, in  response to  a question,  assured the  committee                                                               
that [the polygraph testing] referred to  in the bill will not be                                                               
used in  legal proceedings; polygraph  testing will only  be used                                                               
for post-conviction  sex offender  supervision and  management in                                                               
the community.   In response  to comments, she explained  that it                                                               
will  be used  similar  to  the way  urine  analysis  is used  in                                                               
substance abuse treatment.   It's to verify what  is happening in                                                               
treatment, whether conditions are being  met, and to determine if                                                               
any relapse behavior is occurring  or whether the sex offender is                                                               
engaging  in high-risk  behaviors; in  this way  the DOC  will be                                                               
able  to intervene  more quickly  and  get the  offender back  on                                                               
track, or increase the number  of visits or treatment sessions if                                                               
the DOC feels that such is warranted.                                                                                           
2:45:46 PM                                                                                                                    
CHAIR  McGUIRE   announced  that  committee  will   hold  HB  353                                                               
[Version G]  over, and  requested  a  presentation regarding  the                                                               
polygraph program  and how the DOC  intends to implement it  as a                                                               
part of HB 353.                                                                                                                 
HB 363 - ADDITIONAL JUDGES FOR THIRD DISTRICT                                                                                 
[Contains brief mention of SB 237, companion bill to HB 363.]                                                                   
2:46:34 PM                                                                                                                    
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL NO. 363, "An  Act increasing the number of superior                                                               
court  judges  designated for  the  third  judicial district,  to                                                               
provide additional  superior court  judges at  Anchorage, Palmer,                                                               
and Kenai; and providing for an effective date."                                                                                
2:47:00 PM                                                                                                                    
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office of the Attorney General,  Department of Law (DOL), relayed                                                               
that after  visiting the state's  judicial district  offices, the                                                               
attorney general was  moved to request introduction of  HB 363, a                                                               
bill  that proposes  to add  four  superior court  judges to  the                                                               
third judicial  district:  one  judge each for Kenai  and Palmer,                                                               
and two  judges for Anchorage.   She went on to  briefly describe                                                               
how  backlogs in  any  part of  Alaska's  judicial system  create                                                               
backlogs in all  parts of the system, though some  things are not                                                               
easy  to quantify,  how the  increasing complexity  of cases  and                                                               
evidence is  contributing to  increases in  the workloads  of all                                                               
who play a part in the  judicial system, and listed various types                                                               
of cases that the system now deals with.                                                                                        
MS.  PARKES  said that  although  superior  court caseloads  have                                                               
increased,  as have  the staffing  levels in  other parts  of the                                                               
criminal  justice  system,  there  has not  been  a  commensurate                                                               
increase in court resources, and  this has resulted in a trailing                                                               
trial  calendar  wherein there  are  more  cases than  there  are                                                               
judges to  try the  cases.   She pointed  out that  although most                                                               
cases settle,  they won't unless  there is  a threat that  a case                                                               
will go to trial.  Since  1995, the felony case referrals for the                                                               
superior   court  have   increased   over   60  percent   whereas                                                               
misdemeanor   referrals   have   only   increased   15   percent;                                                               
additionally,   felony  petitions   to  revoke   probations  have                                                               
increased [in number] by 148.                                                                                                   
MS. PARKES  explained that the  number one priority is  the judge                                                               
slated for  Palmer, which  has experienced  an explosion  in both                                                               
population  and crime.    For  example, in  2002  there were  595                                                               
felony  referrals  in  Palmer,   whereas  in  2005,  that  number                                                               
increased to 869.  Furthermore, not  only has the number of cases                                                               
increased in  Palmer, so has  the seriousness of those  cases; in                                                               
2005 there were 12 homicide  referrals as well as other referrals                                                               
for  manslaughter  and negligent  homicide.    Those 12  homicide                                                               
cases are more than the two  judges currently in Palmer could try                                                               
in a year.                                                                                                                      
2:55:39 PM                                                                                                                    
MS.  PARKES noted  that currently  there are  161 superior  court                                                               
cases set for trial in Palmer;  that 167 felony cases are set for                                                               
trial in Kenai;  and that the district attorney  in Anchorage can                                                               
supply the  committee with statistics regarding  the 3rd Judicial                                                               
District  -  for example,  17  homicide  and 5  manslaughter  and                                                               
negligent homicide cases  have been referred to that  court.  Ms.                                                               
Parkes, in conclusion, urged the committee to support HB 363.                                                                   
REPRESENTATIVE GARA referred to what  he termed "the speedy trial                                                               
rule,"  and  asked  how  adding   more  judges  will  reduce  the                                                               
aforementioned backlog.                                                                                                         
MS. PARKES explained  that currently, most people  have "waived a                                                               
lot of  time" and a  lot of people  are willing to  "waive time,"                                                               
and  so most  cases don't  go to  trial within  120 days  anyway.                                                               
Therefore  the aforementioned  trailing  calendars are  "rolling"                                                               
cases, and  so if  there were more  judges available  those cases                                                               
would get resolved then and there.                                                                                              
REPRESENTATIVE  GARA   asked  whether  people  are   "doing  open                                                               
MS. PARKES said  that usually "limited" waivers are  used, but if                                                               
a defense attorney  files a motion to suppress,  for example, and                                                               
the judge  says he/she won't  have the  time to hear  that motion                                                               
for another three  months, then the defendant is  forced to waive                                                               
those three months because it is his/her motion.                                                                                
REPRESENTATIVE COGHILL noted that Fairbanks  is not slated to get                                                               
one  of the  aforementioned judges,  and that  Bethel is  part of                                                               
that same  judicial district.   He asked whether  the "preemption                                                               
process"  creates  calendaring  problems  in  Anchorage,  whether                                                               
"minimizing"  [the preemption  process]  would provide  "calendar                                                               
relief," and  whether [the preemption process]  is really helping                                                               
the courts administer justice.                                                                                                  
MS. PARKES noted  that the [SB 237] contains  an amendment adding                                                               
a  judge  for Fairbanks,  and  concurred  that Bethel  does  fall                                                               
within that  judicial district's  jurisdiction.  She  offered her                                                               
understanding that  both side of  a case, in both  criminal cases                                                               
and  civil cases,  can "preempt"  a judge.   In  situations where                                                               
each side "bumps"  a judge in locations where there  are only two                                                               
judges, then  a third superior  court judge must be  [called in].                                                               
And  while  Fairbanks  "covers"  Bethel,  Anchorage  covers  both                                                               
Palmer and  Kenai.  Although the  concept of doing away  with the                                                               
preemption process [has been  discussed], practitioners appear to                                                               
like  it and  so  would be  opposed  to getting  rid  of it;  she                                                               
acknowledged that the use of this process can be tactical.                                                                      
CHAIR McGUIRE  pointed out,  though, that  its use  is legitimate                                                               
when a judge may have a potential conflict of interest.                                                                         
REPRESENTATIVE  COGHILL opined  that  adding  judges simply  adds                                                               
complexity   to  the   situation,  and   indicated  that   he  is                                                               
sympathetic to  the needs of  the courts but is  also questioning                                                               
whether there are policy issues that could be addressed as well.                                                                
CHAIR McGUIRE said she doesn't sense any opposition to HB 363.                                                                  
LEONARD  M.   LINTON,  JR.,   District  Attorney,   3rd  Judicial                                                               
District(Anchorage),  District   Attorneys,  Department   of  Law                                                               
(DOL), in  response to a  question, simply indicated that  he has                                                               
no objection to the passage of HB 363.                                                                                          
3:03:54 PM                                                                                                                    
REPRESENTATIVE GARA suggested that they  alter the bill such that                                                               
two  of  the aforementioned  judges  would  be appointed  by  the                                                               
current  governor and  the other  two would  be appointed  by the                                                               
next governor.                                                                                                                  
REPRESENTATIVE COGHILL expressed disfavor with that concept.                                                                    
REPRESENTATIVE  KOTT  asked  Representative  Coghill  whether  he                                                               
wanted to alter  the bill such that another judge  would be added                                                               
to Fairbanks.                                                                                                                   
REPRESENTATIVE COGHILL  said he would  prefer that that  issue be                                                               
addressed in the House Finance Committee.                                                                                       
3:05:02 PM                                                                                                                    
LARRY COHN,  Executive Director,  Alaska Judicial  Council (AJC),                                                               
asked whether the committee had received the AJC's fiscal note.                                                                 
CHAIR McGUIRE  confirmed that the  committee does have  the AJC's                                                               
fiscal note.                                                                                                                    
3:05:36 PM                                                                                                                    
REPRESENTATIVE COGHILL  moved to report  HB 363 out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   There being no objection,  HB 363 was reported  from the                                                               
House Judiciary Standing Committee.                                                                                             
3:05:52 PM                                                                                                                    
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.                                                                 

Document Name Date/Time Subjects