Legislature(2007 - 2008)CAPITOL 120

01/21/2008 01:00 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                        January 21, 2008                                                                                        
                           1:06 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Jay Ramras, Chair                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
Representative John Coghill                                                                                                     
Representative Bob Lynn                                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Lindsey Holmes                                                                                                   
MEMBERS ABSENT                                                                                                                
Representative Max Gruenberg                                                                                                    
OTHER LEGISLATORS PRESENT                                                                                                     
Representative Andrea Doll                                                                                                      
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 255                                                                                                              
"An Act relating to dual sentencing of certain juvenile                                                                         
offenders; amending Rule 24.1, Alaska Delinquency Rules; and                                                                    
providing for an effective date."                                                                                               
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 301                                                                                                              
"An Act relating to partial-birth abortions."                                                                                   
     - MOVED HB 301 OUT OF COMMITTEE                                                                                            
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 255                                                                                                                  
SHORT TITLE: DUAL SENTENCING                                                                                                    
SPONSOR(S): REPRESENTATIVE(S) JOHNSON                                                                                           
05/04/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/04/07       (H)       JUD, FIN                                                                                               
05/11/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/11/07       (H)       Heard & Held                                                                                           
05/11/07       (H)       MINUTE(JUD)                                                                                            
01/21/08       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 301                                                                                                                  
SHORT TITLE: PARTIAL-BIRTH ABORTION                                                                                             
SPONSOR(S): REPRESENTATIVE(S) KELLER, COGHILL, LYNN                                                                             
01/11/08       (H)       PREFILE RELEASED 1/11/08                                                                               
01/15/08       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/15/08       (H)       JUD                                                                                                    
01/21/08       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
REPRESENTATIVE CRAIG JOHNSON                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 255.                                                                                       
TONY NEWMAN, Social Services Program Officer                                                                                    
Division of Juvenile Justice (DJJ)                                                                                              
Department of Health & Social Services (DHSS)                                                                                   
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Responded to questions during discussion of                                                              
HB 255, and expressed support for the bill.                                                                                     
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section-Juneau                                                                                                   
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Responded to questions during discussion of                                                              
HB 255, and expressed support for the bill.                                                                                     
QUINLAN G. STEINER, Director                                                                                                    
Central Office                                                                                                                  
Public Defender Agency (PDA)                                                                                                    
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided comments during discussion of                                                                   
HB 255.                                                                                                                         
JOSHUA FINK, Director                                                                                                           
Anchorage Office                                                                                                                
Office of Public Advocacy (OPA)                                                                                                 
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                             
HB 255.                                                                                                                         
REPRESENTATIVE WES KELLER                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Spoke as one  of the joint prime sponsors of                                                             
HB 301.                                                                                                                         
KAREN LEWIS, Alaska Right to Life                                                                                               
(No address provided)                                                                                                           
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                             
HB 301.                                                                                                                         
SIDNEY HEIDERSDORF, President                                                                                                   
Alaskans for Life, Inc.                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 301.                                                                          
JOHN P. MONAGLE                                                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 301.                                                                          
DEBBIE JOSLIN, President                                                                                                        
Eagle Forum Alaska                                                                                                              
Delta Junction, Alaska                                                                                                          
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                             
HB 301.                                                                                                                         
ACTION NARRATIVE                                                                                                              
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting to order  at 1:06:30 PM.   Representatives Samuels, Lynn,                                                             
Holmes, Coghill,  and Ramras were  present at the call  to order.                                                               
Representative Dahlstrom arrived as  the meeting was in progress.                                                               
Representative Doll was also in attendance.                                                                                     
CHAIR RAMRAS offered a few quotes  by Martin Luther King, Jr., in                                                               
recognition of the holiday.                                                                                                     
HB 255 - DUAL SENTENCING                                                                                                      
1:10:42 PM                                                                                                                    
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE  BILL NO.  255,  "An  Act relating  to  dual sentencing  of                                                               
certain   juvenile   offenders;   amending  Rule   24.1,   Alaska                                                               
Delinquency Rules; and providing for an effective date."                                                                        
1:11:04 PM                                                                                                                    
REPRESENTATIVE DAHLSTROM  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB 255,  Version  25-LS0914\E,  Luckhaupt,                                                               
1/18/08, as the work draft.   There being no objection, Version E                                                               
was before the committee.                                                                                                       
1:11:29 PM                                                                                                                    
REPRESENTATIVE CRAIG JOHNSON,  Alaska State Legislature, sponsor,                                                               
relayed  that  HB   255  [proposes  an  expansion   of  the  dual                                                               
sentencing provisions  of Title 47]  so that those  juveniles who                                                               
commit a certain class of crime can  be given a chance to serve a                                                               
sentence within  the juvenile justice  system (JJS) but  can then                                                               
be "remanded  to adult court"  should they not satisfy  the terms                                                               
of the juvenile order.  The  bill provides that an individual who                                                               
has reached  the age  at which his/her  juvenile order  no longer                                                               
can be  enforced but  who the department  feels still  needs more                                                               
supervision can then  be placed under adult probation.   He noted                                                               
that  during  the  interim,  the issue  of  dual  sentencing  was                                                               
discussed by  a "task force  in Anchorage," but no  consensus was                                                               
reached;  one of  the points  discussed pertained  to the  age at                                                               
which a young person could also be subject to an adult sentence.                                                                
REPRESENTATIVE  JOHNSON offered  that  the bill  gives the  judge                                                               
more  flexibility with  regard  to which  crimes  a juvenile  can                                                               
receive dual sentencing for.   Under dual sentencing, a judge can                                                               
order a  juvenile to participate in  the JJS and impose  an adult                                                               
sentence  that will  only be  enforced if  the juvenile  does not                                                               
then successfully  rehabilitate himself/herself via the  JJS.  He                                                               
relayed  that initially  he'd intended  to  expand the  statutory                                                               
provisions pertaining  to mandatory  waivers, but  the department                                                               
had expressed  concern with  that concept, and  so HB  255 simply                                                               
addresses the  provisions pertaining to dual  sentencing with the                                                               
goal  of  providing  juvenile  offenders  with  an  incentive  to                                                               
complete their juvenile orders and  rehabilitate themselves.  The                                                               
bill  gives   the  administration   another  tool  by   which  to                                                               
rehabilitate those juvenile offenders  that can be rehabilitated,                                                               
and  a tool  by  which to  further control  those  that can't  be                                                               
rehabilitated  - they  can  instead  be dealt  with  as an  adult                                                               
before they  have an  opportunity to commit  another crime  as an                                                               
actual adult.                                                                                                                   
REPRESENTATIVE JOHNSON, in conclusion, said:                                                                                    
     This is a public safety issue - so many of our crimes                                                                      
      these days are being committed by juveniles in gang-                                                                      
     related  incidences.   So if  we can  get our  hands on                                                                    
     these  ...  young  people and  work  them  through  the                                                                    
     system,  great.   For  those  that  we can't,  it's  an                                                                    
     opportunity  for  us to  protect  the  public into  the                                                                    
REPRESENTATIVE  SAMUELS questioned  whether under  the bill,  the                                                               
[prosecuting]  attorney  would  still  have the  ability  seek  a                                                               
discretionary waiver instead of dual sentencing.                                                                                
REPRESENTATIVE   JOHNSON  said   the   bill   won't  reduce   the                                                               
prosecuting  attorney's ability  to seek  a discretionary  waiver                                                               
for those crimes that are deemed heinous.                                                                                       
REPRESENTATIVE SAMUELS asked what  the appellate process would be                                                               
in such situations.                                                                                                             
REPRESENTATIVE  JOHNSON suggested  that  others  might be  better                                                               
able to address that question.                                                                                                  
1:17:43 PM                                                                                                                    
REPRESENTATIVE  HOLMES referred  to Section  4 of  the bill,  and                                                               
noted that  in part  it is  proposing to  change the  standard of                                                               
proof  -  from a  preponderance  of  the  evidence to  clear  and                                                               
convincing evidence - [that a  juvenile must provide to justify a                                                               
continuance of the stay of the  adult sentence], and that a court                                                               
need  only find  by  a  preponderance of  the  evidence that  the                                                               
juvenile  has committed  a second  offense.   She asked  whether,                                                               
when  the juvenile  commits a  subsequent offense,  another trial                                                               
must take place wherein the juvenile is actually convicted.                                                                     
REPRESENTATIVE  JOHNSON offered  his  understanding  that if  the                                                               
prosecuting attorney chose to  prosecute that subsequent offense,                                                               
"that offense would  be there," and that the  adult sentence that                                                               
was  part of  the  original dual  sentencing  procedure could  be                                                               
imposed  immediately while  the  juvenile  awaits further  trial.                                                               
Part  of the  purpose of  the bill,  he added,  is to  keep those                                                               
juveniles with a propensity to reoffend incarcerated.                                                                           
REPRESENTATIVE   HOLMES   characterized   the   standard   of   a                                                               
preponderance  of the  evidence as  a low  threshold by  which to                                                               
impose  the  adult sentence,  particularly  given  that a  higher                                                               
standard is  being imposed  on the  juvenile to  provide evidence                                                               
that mitigating circumstances exist.                                                                                            
REPRESENTATIVE JOHNSON  opined that it shouldn't  be difficult to                                                               
impose the adult  sentence for those that  [continue to] endanger                                                               
the public;  in such  cases, that  lower threshold  is justified.                                                               
Although  he   doesn't  wish  to  violate   anyone's  rights,  he                                                               
remarked, he would  like to tip the scales  toward protecting the                                                               
public.  However,  should the juvenile then be  found innocent of                                                               
a subsequent offense, he surmised  that the judge would then have                                                               
the discretion to again stay the adult sentence.                                                                                
REPRESENTATIVE  HOLMES asked  why  a change  to  the standard  of                                                               
evidence the juvenile must provide is being proposed.                                                                           
REPRESENTATIVE  JOHNSON suggested  that  others  might be  better                                                               
able address that question as well.                                                                                             
REPRESENTATIVE SAMUELS offered an  example in which a 15-year-old                                                               
commits  murder and  the prosecuting  attorney chooses  to pursue                                                               
dual sentencing.   He asked how old that juvenile  must be before                                                               
he/she is  "booted out of McLaughlin  [Youth Center] - ...  19 or                                                               
REPRESENTATIVE  JOHNSON said  that is  correct, unless  he/she is                                                               
victimizing other inmates or otherwise becomes a problem.                                                                       
REPRESENTATIVE   SAMUELS  asked   who   determines  whether   the                                                               
treatment "sticks."                                                                                                             
REPRESENTATIVE JOHNSON  surmised that  that is  an administrative                                                               
decision that would  be made by the Division  of Juvenile Justice                                                               
CHAIR RAMRAS  characterized [dual  sentencing] as  an interesting                                                               
approach to a public safety issue.                                                                                              
REPRESENTATIVE SAMUELS, referring  to his aforementioned example,                                                               
asked whether the juvenile's records would be sealed.                                                                           
1:26:40 PM                                                                                                                    
TONY  NEWMAN,  Social  Services   Program  Officer,  Division  of                                                               
Juvenile Justice  (DJJ), Department  of Health &  Social Services                                                               
(DHSS), explained  that if  a juvenile succeeds  in the  JJS, the                                                               
juvenile  goes  back  to  court wherein  it  is  determined  that                                                               
his/her  juvenile order  has been  satisfied and  that he/she  is                                                               
thus  "finished."   This  same  process  would apply  under  dual                                                               
sentencing except  that the  juvenile [must  then] ask  the court                                                               
not to impose  the previously-pronounced adult sentence.   If the                                                               
department, however, feels that  the juvenile hasn't succeeded in                                                               
the  JJS, then  it would  petition the  court to  have the  adult                                                               
sentence imposed.                                                                                                               
REPRESENTATIVE SAMUELS questioned what  criteria would be used to                                                               
make the determination of whether  a juvenile has been successful                                                               
in  the  JJS, and  who  would  be  held accountable  should  that                                                               
juvenile then go on to murder someone else.                                                                                     
MR.   NEWMAN  said   that  the   DJJ  is   already  making   such                                                               
determinations, and  that DJJ  treatment facilities  already have                                                               
standards regarding what constitutes  [success]; for example, the                                                               
DJJ considers  whether the  juvenile is likely  to live  a crime-                                                               
free lifestyle, what is in the  best interest of both society and                                                               
the juvenile, and whether it  is likely that any further progress                                                               
will  be obtained  by requiring  the  juvenile to  remain in  the                                                               
program.   In  addition to  those considerations,  every juvenile                                                               
also has an individualized treatment  or probation plan outlining                                                               
goals that  he/she is  expected to  achieve while  in the  JJS or                                                               
while  out on  probation, and  these plans  can be  used to  help                                                               
determine  whether the  juvenile  is succeeding.   Juveniles  who                                                               
don't meet  their goals  but who  must be  released from  the DJJ                                                               
facility  because their  juvenile  jurisdiction is  about to  end                                                               
have notations  made in their discharge  summaries outlining that                                                               
they have  failed in  meeting their goals,  or, for  example that                                                               
they are "surface compliant" only.                                                                                              
MR. NEWMAN noted  that currently under juvenile  orders, once the                                                               
juveniles turns 19  or 20, "they're gone," and so  the bill gives                                                               
the DJJ  an opportunity to  impose some  sort of sanction  on the                                                               
juveniles that continues  beyond their reaching the age  of 19 or                                                               
1:30:09 PM                                                                                                                    
REPRESENTATIVE  SAMUELS  again  asked   whether  the  records  of                                                               
juveniles who succeed in the JJS would be sealed.                                                                               
MR.  NEWMAN offered  his  belief that  currently  under the  dual                                                               
sentencing provisions,  court records are  open to the  public as                                                               
adult records.                                                                                                                  
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau,  Criminal  Division,  Department  of  Law  (DOL),                                                               
added that juvenile records are available to probation officers.                                                                
1:31:41 PM                                                                                                                    
REPRESENTATIVE SAMUELS  questioned whether  the court  could look                                                               
at  an  adult  felon's  juvenile   record  and  see  that  he/she                                                               
committed a similar felony crime  while he/she was a juvenile and                                                               
then use that information to increase the sentence.                                                                             
MR. NEWMAN said  that is true for felony crimes;  when a juvenile                                                               
is adjudicated  on a felony,  a judge, in  determining mitigating                                                               
and aggravating  factors, can use a  previous felony adjudication                                                               
to help determine those factors.                                                                                                
REPRESENTATIVE  SAMUELS questioned  whether Alaska  has a  "three                                                               
strikes and you're out" law.                                                                                                    
MS.  CARPENETI explained  that  there  is such  a  law, but  that                                                               
juvenile  adjudications  don't  count   as  a  conviction.    The                                                               
aforementioned law is very limited  with regard to what counts as                                                               
a  "strike."   In  response  to a  question,  she explained  that                                                               
currently there  is a  discretionary waiver  procedure available;                                                               
the state can ask the  court to consider the discretionary waiver                                                               
of a  juvenile who is under  the age of  18, or who is  under the                                                               
age of  15 if it's a  very serious crime that  would otherwise be                                                               
subject to  automatic waiver,  into adult  court.   Currently the                                                               
state's  dual sentencing  statute  only applies  to  one class  B                                                               
felony against a  person - second degree sexual abuse  of a minor                                                               
- whereas  HB 255 proposes  to expand  that statute such  that it                                                               
could  apply to  all  class  B felony  crimes  against a  person.                                                               
However,  there are  several steps  that must  occur before  dual                                                               
sentencing  is  considered,  the  first  of  which  is  that  the                                                               
prosecuting attorney must make the  decision to request that dual                                                               
sentencing be applied to the person.                                                                                            
MR. NEWMAN clarified  that under the bill,  dual sentencing would                                                               
also be available  for any felony crime against a  person as long                                                               
as there  is a previous  adjudication or conviction for  a felony                                                               
crime against a person.                                                                                                         
MS. CARPENETI concurred.                                                                                                        
MR. NEWMAN,  in response to  a question, offered  that currently,                                                               
for a  juvenile 15 years of  age who commits a  murder, there are                                                               
two processes, one of which  is the discretionary waiver process,                                                               
though  that  isn't  used  very   often  because  it  presents  a                                                               
difficult  legal tangle  with regard  to determining  whether the                                                               
juvenile would  be amenable  to treatment  in the  JJS; sometimes                                                               
when  a discretionary  waiver is  sought,  it is  denied and  the                                                               
juvenile is  sent back to  the DJJ,  but sometimes a  juvenile is                                                               
waived into  the adult system  and is  never given the  chance to                                                               
possibly succeed in the JJS.   What's attractive to the DJJ about                                                               
HB 255 is that  it would provide yet a third  way of dealing with                                                               
such a  juvenile; he/she would be  allowed to spend some  time in                                                               
the JJS,  but if the  DJJ still  has concerns about  him/her when                                                               
he/she  turns 19  or  20,  the state  still  has  the ability  to                                                               
"continue  some measure  of public  safety and  accountability on                                                               
that person for a while."                                                                                                       
MS. CARPENETI  offered her  understanding that  at one  point the                                                               
proposal  was  to  expand  the  automatic  waiver  provisions  to                                                               
include more  crimes for which  juveniles would  automatically be                                                               
sent into the adult justice system,  but since the mission of the                                                               
DJJ is to try to  rehabilitate juvenile offenders, "public safety                                                               
would really mitigate in favor of  trying to work with them at an                                                               
early age," rather  than just sending them to  adult prison where                                                               
the chances of being rehabilitated are not as good.                                                                             
1:39:26 PM                                                                                                                    
MS.  CARPENETI, in  response to  a  question, said  that the  DOL                                                               
supports HB 255.                                                                                                                
REPRESENTATIVE HOLMES  offered a hypothetical situation  in which                                                               
a juvenile  commits the crime  of manslaughter, goes  through the                                                               
JJS, but  then reaches the  point where  he/she is going  to "age                                                               
out"  of the  system.    How long  would  the adult  probationary                                                               
period be  for that  person, up  until what  age could  the adult                                                               
sentence  possibly be  imposed, and  what happens  if the  person                                                               
commits a  subsequent lesser crime  such as the crime  of driving                                                               
under the influence (DUI)?                                                                                                      
MR. NEWMAN  offered that  if a 15-year-old  commits the  crime of                                                               
manslaughter, and he/she  is referred for dual  sentencing - thus                                                               
receiving both  an adult sentence and  a juvenile order -  and he                                                               
serves the standard two years for  the juvenile order in the JJS,                                                               
but the  DJJ then extends  the order because  it is not  yet sure                                                               
about his/her  public safety risk,  he/she could stay  within the                                                               
JJS until  he/she reaches the  age of 20.   If the DJJ  still has                                                               
some concerns  about him/her even  though he/she has  reached the                                                               
age  of 20,  since the  timeframes  of the  adult sentence  would                                                               
already be  spelled out, the DJJ  could go back to  court and the                                                               
judge could  then decide how  much of that adult  sentence should                                                               
be served and in what fashion.                                                                                                  
REPRESENTATIVE  HOLMES questioned  whether  such  a person  might                                                               
simply have adult probation imposed, and, if so, for how long.                                                                  
MR. NEWMAN said the person would  be placed on probation, and the                                                               
length of time would depend  on the parameters of the previously-                                                               
pronounced adult  sentence.  If  the person then  commits another                                                               
crime while  on that  adult probation, then  that would  be dealt                                                               
with  as a  new  crime -  "almost entirely  out  of the  juvenile                                                               
[justice] system altogether,"  he added.  As  another example, if                                                               
a juvenile  under a  dual sentence is  on juvenile  probation and                                                               
he/she commits  a serious  felony assault,  the DJJ  could decide                                                               
whether to  move the juvenile  offender to the adult  system, and                                                               
whether to  discretionarily waive him/her [for  the second crime]                                                               
if he/she  is still  a juvenile.   Again,  one of  the attractive                                                               
aspects of  HB 255 is  that it provides  the DJJ with  more tools                                                               
than the  existing dual  sentencing statute,  which is  not being                                                               
used very much - only five times in the last ten years.                                                                         
REPRESENTATIVE  HOLMES surmised,  then, that  the bill  gives the                                                               
court  discretion  with regard  to  probation  and violations  of                                                               
MR. NEWMAN concurred.                                                                                                           
REPRESENTATIVE COGHILL asked whether  plea bargaining occurs when                                                               
serious  crimes  are committed  by  juveniles,  and whether  such                                                               
would occur under a dual sentence.                                                                                              
MS.  CARPENETI  said she  assumes  that  plea negotiations  would                                                               
proceed in a potential dual  sentence case, and that the question                                                               
of  whether  to  proceed  with a  discretionary  waiver  or  dual                                                               
sentencing  would  definitely  be  a subject  of  discussion  and                                                               
negotiation between  the prosecution,  the DJJ, and  the defense.                                                               
Once the dual sentence is  imposed, however, the court has chosen                                                               
what   adult   sentence   would    be   appropriate   under   the                                                               
circumstances,  and so  her belief,  she relayed,  is that  there                                                               
would not be any further negotiations.                                                                                          
REPRESENTATIVE  COGHILL indicated  that he  is still  questioning                                                               
how the appropriate adult sentence would be determined.                                                                         
1:49:29 PM                                                                                                                    
QUINLAN  G. STEINER,  Director, Central  Office, Public  Defender                                                               
Agency (PDA), Department of  Administration (DOA), mentioned that                                                               
with regard to  HB 255 as a  whole, he did have a  chance to work                                                               
with the aforementioned  task force, and so was privy  to some of                                                               
the discussions  that arose regarding  the bill.  The  three main                                                               
issues raised that  merited discussion were:  at  what age should                                                               
dual  sentencing  become available  -  currently  the bill  could                                                               
apply to someone as young as  12 who commits certain crimes - and                                                               
whether there is  research indicating that such  a decision could                                                               
not  be  supported for  someone  of  that  age because  of  brain                                                               
chemistry  and   brain  development;  whether  the   standard  of                                                               
evidence  showing  an  ability  to  be  rehabilitated  should  be                                                               
changed to  clear and convincing  when a probation  violation has                                                               
been  established -  currently, for  a discretionary  waiver, the                                                               
standard  is still  a preponderance  of the  evidence; and  which                                                               
process,  dual   sentencing  or  discretionary  waiver,   is  the                                                               
preferable method by which to achieve the sought-after goals.                                                                   
MR.  STEINER,  in response  to  a  question,  said that  the  PDA                                                               
doesn't have a position on HB  255, but noted that one unintended                                                               
consequences could result from changing  the standard of evidence                                                               
to  clear  and convincing,  given  that  there  is a  very  broad                                                               
definition of what constitutes a  probation violation that could,                                                               
under the  bill, result in  the imposition of an  adult sentence.                                                               
The  juvenile would  have the  burden of  proving that  the adult                                                               
sentence  should not  be imposed,  and so  mistakes in  providing                                                               
that evidence would  accrue to the juvenile.  With  regard to the                                                               
proposed age threshold  of 12, he offered  his understanding that                                                               
there was some  research provided during the  task force meetings                                                               
addressing that issue.                                                                                                          
1:53:18 PM                                                                                                                    
JOSHUA  FINK,  Director,  Anchorage   Office,  Office  of  Public                                                               
Advocacy (OPA), Department of Administration  (DOA), noted that a                                                               
representative  from the  OPA  also  attended the  aforementioned                                                               
task  force meetings,  and  that he  concurs  with Mr.  Steiner's                                                               
summation of  those meetings.   The OPA does have  some concerns,                                                               
one being  that "the  brain science" seems  to indicate  that 12-                                                               
and  13-year-olds  should  not  be  held to  the  same  level  of                                                               
culpability as an adult; furthermore,  the U.S. Supreme Court has                                                               
discussed  this  issue in  Roper  v.  Simmons.   Another  concern                                                             
pertains to changing  the standard of evidence  for the juvenile.                                                               
It won't  be hard for the  state to prove, by  a preponderance of                                                               
the  evidence, that  a probation  violation such  as truancy  has                                                               
occurred,  but  then  the  juvenile  must  prove,  by  clear  and                                                               
convincing evidence,  that that doesn't warrant  having the adult                                                               
sentence imposed.  This could  result in more juveniles receiving                                                               
adult sentences than  under current law, though that  is a policy                                                               
call for  the legislature  to make.   He  offered to  provide the                                                               
committee with  further comments  in writing regarding  the PDA's                                                               
MS. CARPENETI,  referring to Section  4's proposed change  to the                                                               
standard of  evidence for the  juvenile, said that  although that                                                               
does  change the  burden, it  is not  an unintended  consequence.                                                               
The rationale behind  that change is that at that  point in time,                                                               
the  juvenile  would have  already  been  given both  a  juvenile                                                               
sentence and an adult sentence,  and the DJJ doesn't petition for                                                               
imposition of the  adult sentence lightly and wouldn't  do it for                                                               
simple truancy,  for example.   Again, the  whole mission  of the                                                               
DJJ is to get  a child into a position where  he/she can become a                                                               
productive  member of  society.    When the  DJJ  does decide  to                                                               
petition to have the adult sentence  imposed and when it is found                                                               
that the juvenile has violated  a condition of his/her probation,                                                               
the juvenile  is then  asking for yet  another chance.   Changing                                                               
the standard is  a way of saying to the  juvenile that he/she has                                                               
already  had a  couple  of chances  and so  he/she  must make  an                                                               
effort to  convince the DJJ  that he/she  really will do  well in                                                               
the JJS; at  that point the juvenile ought to  be able to clearly                                                               
articulate his/her request  for another chance, she  opined.  The                                                               
standard of  clear and convincing  evidence is just a  little bit                                                               
higher than a preponderance of the  evidence and no where near as                                                               
high as the criminal standard of beyond a reasonable doubt.                                                                     
1:56:31 PM                                                                                                                    
MR. NEWMAN assured  the committee that the DJJ does  not take the                                                               
concept of moving  juveniles into the adult system  lightly - the                                                               
reward and  the mission of the  DJJ are to keep  juveniles out of                                                               
the  adult criminal  system.   So  the fear  that mere  probation                                                               
violations  such  as  truancy  or  being  late  for  a  probation                                                               
appointment could  result in an  imposition of an  adult sentence                                                               
[is  unfounded] because  that is  not the  intention of  the DJJ.                                                               
With regard to crimes, he went  on to say, the bill provides that                                                               
if a juvenile commits either  a felony or a misdemeanor involving                                                               
injury to  a person or  the use of a  deadly weapon, the  DJJ can                                                               
seek to  have the adult sentence  imposed.  However, there  are a                                                               
whole  range  of crimes  that  don't  fit within  those  specific                                                               
categories  but  that  could  still  represent  a  public  safety                                                               
concern  to the  DJJ.   For  example, if  a  juvenile under  dual                                                               
sentence  for  the  crime  of  killing  someone  while  drunk  is                                                               
arrested for DUI  while on probation, although that DUI  is not a                                                               
felony, it is  still cause for concern.  Or,  as another example,                                                               
if a juvenile sex offender  under dual sentencing is released and                                                               
a condition  of his/her  probation is that  he/she may  not spend                                                               
time with small  children but is then found on  a playground in a                                                               
daycare center, although  that specific activity is  not a crime,                                                               
it is a probation violation and is cause for concern.                                                                           
CHAIR  RAMRAS  asked how  many  juveniles  move through  the  JJS                                                               
MR. NEWMAN said that annually  the DJJ is referred between 5,000-                                                               
6,000  juveniles,  with the  majority  of  those being  "adjusted                                                               
out," and with a majority of  those that do enter a court process                                                               
being held on juvenile probation  in their homes and communities.                                                               
The  McLaughlin Youth  Center currently  has about  200-250 beds,                                                               
and there are about 350 juveniles  around the state being held in                                                               
secure treatment facilities.                                                                                                    
CHAIR   RAMRAS  questioned   whether   a  juvenile   has  to   be                                                               
incarcerated before being subject to dual sentencing.                                                                           
MR. NEWMAN  explained that any  juvenile that is alleged  to have                                                               
committed one  of the  listed offenses could  be subject  to dual                                                               
REPRESENTATIVE  SAMUELS  asked   how  many  discretionary  waiver                                                               
proceedings have taken place since that provision was adopted.                                                                  
MR.  NEWMAN said  he's found  record of  nine juveniles  who were                                                               
discretionarily   waived,   though   more   were   referred   for                                                               
discretionary waiver.                                                                                                           
2:01:47 PM                                                                                                                    
CHAIR  RAMRAS, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on HB 255.                                                                                     
MR.  NEWMAN,  in  response  to  a question,  said  that  the  DJJ                                                               
supports HB 255.                                                                                                                
[HB 255, Version E, was held over.]                                                                                             
HB 301 - PARTIAL-BIRTH ABORTION                                                                                               
2:03:17 PM                                                                                                                    
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE   BILL  NO.   301,  "An   Act  relating   to  partial-birth                                                               
2:03:45 PM                                                                                                                    
REPRESENTATIVE WES KELLER, Alaska  State Legislature, speaking as                                                               
one of the bill's joint prime  sponsors, indicated that HB 301 is                                                               
tailored to meet  the intent of federal law; that  it defines the                                                               
term,  "partial-birth  abortion"  using [some  of]  the  language                                                               
currently in federal  law; and that 36  states currently restrict                                                               
partial-birth  abortions,   which  have  been   characterized  as                                                               
inhumane and brutal.                                                                                                            
REPRESENTATIVE  COGHILL,  speaking as  one  of  the bill's  joint                                                               
prime sponsors,  offered his understanding  that the  language in                                                               
federal law  has been considered  by the U.S. Supreme  Court, and                                                               
that existing Alaska law  restricting partial-birth abortions has                                                               
not been  enforced.   House Bill  301 will  help Alaska  meet the                                                               
federal court's  standard and put  Alaska's law in  the forefront                                                               
again,  and though  that  could lead  to  challenges, he  opined,                                                               
[adoption of  HB 301] still  constitutes good public policy.   He                                                               
noted that members' packets contain one proposed amendment.                                                                     
2:07:56 PM                                                                                                                    
KAREN  LEWIS, Alaska  Right to  Life, first  relayed that  Alveda                                                               
King,  the niece  of Martin  Luther  King, Jr.,  was the  keynote                                                               
speaker at  her organization's 2007 Proudly  Pro-Life Dinner last                                                               
November and told  participants that had her uncle  been alive he                                                               
would  have  spoken  against  "the   injustices  that  are  being                                                               
inflicted  on the  unborn children  in our  nation" and  that she                                                               
believes abortion  is the  present-day human  rights issue.   Ms.                                                               
Lewis said it is difficult for  her to understand why and how the                                                               
nation continues to allow the  "brutal and merciless slaughter of                                                               
our  most precious  resource -  our children."   She  offered her                                                               
understanding that a little over  150 years ago, the U.S. Supreme                                                               
Court  deemed African  Americans as  not being  fully human,  and                                                               
that Native  Americans were  systematically slaughtered  with tax                                                               
funds; thus  she is not  very surprised  to "see what's  going on                                                               
now  with the  killing of  our  babies."   She noted  that as  of                                                               
tomorrow, Roe v. Wade will have  been in effect for 35 years, and                                                             
offered  her  understanding  that  about  50  million  "pre-born"                                                               
children  have been  killed at  the  hands of  their mothers  and                                                               
hired abortionists.  In conclusion,  she said she appreciates the                                                               
[committee   hearing]  HB   301  "as   a  very   good  piece   of                                                               
2:10:10 PM                                                                                                                    
SIDNEY HEIDERSDORF,  President, Alaskans for Life,  Inc., relayed                                                               
that his organization  supports HB 301 as well as  all efforts to                                                               
bring  Alaska  statutes in  line  with  abortion restrictions  as                                                               
permitted by the courts.  He added:                                                                                             
     We  are  opposed to  partial-birth  abortion  - it's  a                                                                    
     gruesome, horrifying  procedure.  However, this  is not                                                                    
     why we  oppose it.   We  oppose it  because it  kills a                                                                    
     baby.    And  there  is no  moral  difference,  really,                                                                    
     between   a  partial-birth   abortion  and   any  other                                                                    
     abortion.   What sets  partial-birth abortion  apart is                                                                    
     that it's a  procedure which is so  horrifying that ...                                                                    
     you  would  have  rights to  hope  that  even  abortion                                                                    
     supporters  would condemn  it.    Simply reflecting  on                                                                    
     what it is  should be adequate to  convince anyone that                                                                    
     this  is  a  procedure   which  should  be  prohibited.                                                                    
     Supporting  it  really  is  an  effort  to  defend  the                                                                    
     indefensible.     Partial-birth   abortion  really   is                                                                    
     virtual infanticide.                                                                                                       
     So  we think  it  shouldn't be  a controversial  issue,                                                                    
     really.    Sadly,  in  many  instances,  we  have  been                                                                    
     mistaken  and  not  fully appreciating  the  commitment                                                                    
     that some  individuals have  to abortion  regardless of                                                                    
     the  circumstances of  the pregnancy.   This  is simply                                                                    
     reaping, I believe,  the harvest of Roe  v. Wade, which                                                                  
     legalized abortion  at any stage  of pregnancy  for any                                                                    
     reason or for  no reason.  So we need  to have this ban                                                                    
     enforced  if   we  want  to  maintain   at  least  some                                                                    
     semblance in  our society  as a  civil society  when it                                                                    
     comes how we treat the  most defenseless members of the                                                                    
     human family.   So we thank the  [joint prime] sponsors                                                                    
     for this proposed legislation and  we ask for favorable                                                                    
     consideration by this committee.  Thank you very much.                                                                     
2:12:46 PM                                                                                                                    
JOHN P.  MONAGLE said that no  one can convince him  that a fetus                                                               
is anything  other than a  human being - a  baby - that  is being                                                               
killed [via abortion],  and so anything that can be  done to stop                                                               
"this crime" should be done.   In conclusion, he said he supports                                                               
[HB 301].                                                                                                                       
2:13:51 PM                                                                                                                    
DEBBIE JOSLIN, President, Eagle  Forum Alaska, after thanking the                                                               
committee for  hearing HB  310 and the  joint prime  sponsors for                                                               
introducing it, characterized it as  "a good thing."  She offered                                                               
her understanding  that there was  broad, bipartisan  support for                                                               
passing the  federal partial-birth abortion ban,  perhaps in part                                                               
due to  the publicity highlighting  what is actually  entailed in                                                               
such  a procedure.   It  really  isn't a  pretty way  to kill  an                                                               
unborn  baby, she  remarked; it  is particularly  gruesome.   She                                                               
offered  her  understanding  that  the  U.S.  Supreme  Court  has                                                               
already  ruled that  it is  constitutional  to ban  this form  of                                                               
abortion.  In conclusion, she urged  the committee to pass HB 301                                                               
without amendments,  surmising that  it will merely  align Alaska                                                               
law with "the U.S. Constitution."                                                                                               
CHAIR  RAMRAS, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on HB 301.                                                                                     
2:16:30 PM                                                                                                                    
REPRESENTATIVE  HOLMES  made  a  motion  to  adopt  Amendment  1,                                                               
labeled 25-LS1139\C.1, Kurtz, 1/21/08, which read:                                                                              
     Page 1, following line 2:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section 1. AS 18.16.050(a) is amended to read:                                                                   
          (a) Notwithstanding compliance with AS 18.16.010,                                                                     
     a  person may  not  knowingly  perform a  partial-birth                                                                    
     abortion  unless  continuation   of  the  pregnancy  is                                                                
     likely  to  result in  the  pregnant  woman's death  or                                                                
     poses  a substantial  risk of  permanent injury  to the                                                                
     pregnant woman's physical or  mental health [A PARTIAL-                                                                
     BIRTH  ABORTION IS  NECESSARY  TO SAVE  THE  LIFE OF  A                                                                    
     MOTHER  WHOSE   LIFE  IS   ENDANGERED  BY   A  PHYSICAL                                                                    
     DISORDER,  ILLNESS,  OR  INJURY AND  NO  OTHER  MEDICAL                                                                    
     PROCEDURE  WOULD SUFFICE  FOR THAT  PURPOSE]. Violation                                                                    
     of this subsection is a class C felony."                                                                                   
     Page 1, line 3:                                                                                                            
          Delete "Section 1"                                                                                                  
     Insert "Sec. 2"                                                                                                          
CHAIR RAMRAS objected [for the purpose of discussion].                                                                          
REPRESENTATIVE HOLMES  noted that  Amendment 1 proposes  to amend                                                               
AS 18.16.050(a),  a provision of  statute not  currently included                                                               
in HB  301, which just  changes the definition  of "partial-birth                                                               
abortion".   As  currently written,  AS 18.16.050(a)  contains an                                                               
exception  to  the  restriction on  partial-birth  abortion,  and                                                               
Amendment 1 would change the  wording of that exception such that                                                               
a partial-birth abortion could be  performed not only if the life                                                               
of the  mother is threatened but  also if there is  a substantial                                                               
risk of permanent  injury to her physical or mental  health.  She                                                               
offered her belief that including such language is critical.                                                                    
CHAIR RAMRAS questioned what constitutes "mental health".                                                                       
REPRESENTATIVE HOLMES  offered:  "The  requirement of it  being a                                                               
...  substantial risk  of permanent  injury applies  to both  the                                                               
physical and mental  health aspects; there are cases  in which it                                                               
could be found  that it would cause severe trauma.   I don't know                                                               
the exact medical definition."                                                                                                  
REPRESENTATIVE  COGHILL said  he objects  to Amendment  1, though                                                               
likes the inclusion  of the words "permanent injury".   He opined                                                               
that Amendment  1 would soften  the effect  of HB 301,  and noted                                                               
that  it  will be  hard  to  substantiate a  potential  permanent                                                               
mental health problem.  He offered  his belief that the life that                                                               
is healthy  needs to be  protected, and that physical  and mental                                                               
injury can  probably be  repaired, whereas  killing "a  child" is                                                               
2:21:04 PM                                                                                                                    
REPRESENTATIVE LYNN,  speaking as one  of the bill's  joint prime                                                               
sponsors,  opined  that  life  is precious,  whether  it  be  the                                                               
mother's or  the child's,  and so both  should be  saved whenever                                                               
possible.  He asked how  often "this situation" has occurred, and                                                               
whether current statute contains a definition of mental health.                                                                 
REPRESENTATIVE  COGHILL noted  that mental  health disorders  are                                                               
described  in the  [Diagnostic and  Statistical Manual  of Mental                                                               
Disorders, Fourth  Edition (DSM-IV)],  and surmised that  as used                                                               
in Amendment 1,  the term, "mental health" could  fall under that                                                               
code, which he characterized as very broad.                                                                                     
REPRESENTATIVE HOLMES explained that  the language of Amendment 1                                                               
was derived from Colorado and Delaware state statutes.                                                                          
REPRESENTATIVE DAHLSTROM relayed her belief  that if the child in                                                               
the womb  is of the size  described in the bill,  then a Cesarean                                                               
section could be performed -  instead of a partial-birth abortion                                                               
- and  the child  could then be  given up for  adoption.   If the                                                               
steps outlined in the bill have to  be taken in order to kill the                                                               
unborn child,  then that child  is probably capable of  living in                                                               
an incubator and  thus wouldn't have to be killed.   She said she                                                               
opposes Amendment 1.                                                                                                            
REPRESENTATIVE  HOLMES offered  that the  U.S. Supreme  Court has                                                               
already  debated, in  two  cases,  whether there  needs  to be  a                                                               
"health of  the mother" exception  in "a statute like  this," and                                                               
whether such a procedure is  ever medically necessary to save and                                                               
protect the health of the mother.   In both cases there was a lot                                                               
of serious debate among the  medical community on this issue, and                                                               
this debate  is ongoing.   Even if  the court does  find Alaska's                                                               
existing exception  to be adequate,  because the debate  is still                                                               
so  active, it  may not  be  the right  decision; therefore,  she                                                               
remarked, "I have  to come down on the side  of allowing a health                                                               
exception."   The language of  Amendment 1 is  not meant to  be a                                                               
"light" standard, she assured the  committee, and if it ever were                                                               
deemed medically  necessary to  perform a  partial-birth abortion                                                               
in order to  preserve a woman's health, it would  be important to                                                               
have included such an exception.                                                                                                
REPRESENTATIVE DAHLSTROM pointed out  that even during a "normal"                                                               
child birth,  complications can occur resulting  in problems that                                                               
doctors  may  or  may not  be  able  to  fix.   She  relayed  her                                                               
knowledge of  one woman who'd  chosen to  give birth and  then to                                                               
give the baby up for adoption  because she felt she couldn't care                                                               
for  it  properly, and  offered  her  belief that  any  expectant                                                               
mother in a similar situation would  prefer to give birth - via a                                                               
Cesarean  section  if  necessary  -  and then  let  the  baby  be                                                               
adopted.   She noted that when  her mother was pregnant  with her                                                               
brother during the  Rubella epidemic, the doctors  advised her to                                                               
have an abortion;  her mother instead chose to give  birth to her                                                               
brother, and although  he was born prematurely and  had a hearing                                                               
problem, he was  not "the monster that they said  he was going to                                                               
come  out  to  be."    Although she  understands  the  intent  of                                                               
Amendment 1, she relayed, she  feels that delivering the baby via                                                               
Caesarean section is an alternative to a partial-birth abortion.                                                                
2:34:23 PM                                                                                                                    
REPRESENTATIVE  COGHILL  noted   that  existing  AS  18.16.050(a)                                                               
already  references the  life of  the mother  and protecting  the                                                               
life of  the mother -  in situations  wherein only one  may live,                                                               
the mother gets priority.   Historically, he surmised, before Roe                                                             
v. Wade,  it was the  other way  around - if  they had to  make a                                                             
choice, doctors  would try to save  the baby and not  the mother.                                                               
Statute currently  says that  the life of  the mother  has value,                                                               
and  so  it  is  important,  he opined,  to  also  say,  wherever                                                               
possible,  that the  life of  the child  has value  as well;  one                                                               
obvious place to  make such a policy statement is  in the statute                                                               
restricting  the use  partial-birth  abortions,  because to  him,                                                               
"that's a life,"  regardless of whether it  starts at conception.                                                               
House Bill  301, he indicated,  is the best  that can be  done at                                                               
REPRESENTATIVE HOLMES  argued that just because  the U.S. Supreme                                                               
Court has  said "we can" doesn't  mean they should.   Noting that                                                               
she puts a very high value on  the life and health of the mother,                                                               
and given that  the debate regarding whether such  a procedure is                                                               
ever  necessary  is  still  ongoing, she  said  she  thinks  that                                                               
including  a  "life  and  health  of  the  mother"  exception  is                                                               
2:38:48 PM                                                                                                                    
A  roll call  vote was  taken.   Representative  Holmes voted  in                                                               
favor of Amendment 1.   Representatives Lynn, Dahlstrom, Coghill,                                                               
Samuels, and  Ramras voted  against it.   Therefore,  Amendment 1                                                               
failed by a vote of 1-5.                                                                                                        
REPRESENTATIVE KELLER,  in conclusion,  said he  appreciates that                                                               
Representative   Holmes   discussed   her  amendment   with   him                                                               
REPRESENTATIVE LYNN relayed  that he is pro-life  and believes in                                                               
protecting  human  life  from  the  moment  of  conception  until                                                               
natural  death occurs.   House  Bill 301  addresses the  issue of                                                               
infanticide,  he  opined,  because for  all  practical  purposes,                                                               
during a partial-birth abortion, the  baby has already been born.                                                               
In  conclusion,  he   said  that  life  is   precious  and  needs                                                               
protection, and that he supports HB 301 as doing "just that."                                                                   
REPRESENTATIVE HOLMES reiterated her belief  that the health of a                                                               
woman  is [paramount],  and  said she  is  disappointed that  her                                                               
proposed  exception  is  not  included   in  the  bill  and  will                                                               
therefore be objecting to passage of the bill.                                                                                  
2:41:41 PM                                                                                                                    
REPRESENTATIVE DAHLSTROM moved to report  HB 301 out of committee                                                               
with  individual  recommendations   [and  the  accompanying  zero                                                               
fiscal note].                                                                                                                   
REPRESENTATIVE HOLMES objected.                                                                                                 
A roll call vote was  taken.  Representatives Dahlstrom, Coghill,                                                               
Samuels,  Lynn, and  Ramras voted  in favor  of reporting  HB 301                                                               
from  committee.     Representative  Holmes  voted   against  it.                                                               
Therefore,  HB  301  was  reported out  of  the  House  Judiciary                                                               
Standing Committee by a vote of 5-1.                                                                                            
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 2:43 p.m.                                                                 

Document Name Date/Time Subjects