Legislature(1993 - 1994)
04/20/1994 02:30 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 20, 1994
2:30 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Jeannette James, Vice-Chairman
Representative Gail Phillips
Representative Pete Kott
Representative Joe Green
Representative Jim Nordlund
MEMBERS ABSENT
Representative Cliff Davidson
COMMITTEE CALENDAR
SB 252 "An Act prohibiting the possession of child
pornography."
AMENDED AND PASSED
SB 293 "An Act relating to the authority of the
commissioner of natural resources to reconvey, or
relinquish an interest in, land to the United
States if that land or interest being reconveyed
or relinquished is identified in an amended
application for a land allotment under federal
law."
MOVED OUT
SB 332 "An Act relating to the possession of 25 or more
marijuana plants."
MOVED OUT
SB 342 "An Act relating to Risk Based Capital for
Insurers."
NOT HEARD
WITNESS REGISTER
Sharon Clark, Legislative Aid
to Senator Mike Miller
State Capitol, Room 423
Juneau, AK 99801-1182
465-4976
POSITION STATEMENT: Gave sponsor statement for SB 252
Mrs. Ermalee Hickel, First Lady of Alaska
Governor's House
716 Calhoun St.
Juneau, AK 99801
465-3500
POSITION STATEMENT: Supported SB 252
Representative Bettye Davis
State Capitol, Room 432
Juneau, AK 99801-1182
465-3875
POSITION STATEMENT: Supported SB 252
Bob Head, Chairman
Alaska Human Relations Commission
PO Box 20218
Juneau, AK 99802
463-3834 h./ 780-4909 w.
POSITION STATEMENT: Supported SB 252
Diane Schenker, Special Assistant
to the Commissioner
Department of Corrections
2200 E. 42nd Avenue
Anchorage, AK 99508-5202
561-4426
POSITION STATEMENT: Supported SB 252
Jerry Luckhaupt, Legal Council
Division of Legal Services
Legislative Affairs Agency
PO Box 110300
Juneau, AK 99811-0300
465-3428
POSITION STATEMENT: Supported SB 252
Sharon Clark, Legislative Aid
to Senator Mike Miller
State Capitol, Room 423
Juneau, AK 99801-1182
465-4976
POSITION STATEMENT: Supported SB 252
Margot O. Knuth, Assistant Attorney General
Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
465-3428
POSITION STATEMENT: Supported SB 252
Bryce Edgmon, Legislative Aid
to Senator George Jacko
State Capitol, Room 125
Juneau, AK 99801-1182
465-4942
POSITION STATEMENT: Gave sponsor statement for SB 293
Ron Swanson, Director
Division of Lands
Department of Natural Resources
PO Box 107005
Anchorage, AK 99510-7005
762-2692
POSITION STATEMENT: Supported SB 293
Joe Ambrose, Chief of Staff
to Senator Robin Taylor
Capitol Bldg., Room 30
Juneau, AK 99801-1182
465-3873
POSITION STATEMENT: Gave sponsor statement for SB 332
PREVIOUS ACTION
BILL: SB 252
SHORT TITLE: POSSESSION OF CHILD PORNOGRAPHY
SPONSOR(S): SENATOR(S) MILLER,Taylor,Salo,Halford;
REPRESENTATIVE(S) B.Davis,Kott,Parnell
JRN-DATE JRN-PG ACTION
01/18/94 2529 (S) READ THE FIRST TIME/REFERRAL(S)
01/18/94 2529 (S) JUD, FIN
02/11/94 2806 (S) COSPONSOR(S): TAYLOR
02/16/94 (S) JUD AT 01:30 PM BELTZ ROOM 211
02/16/94 (S) MINUTE(JUD)
02/18/94 2884 (S) JUD RPT CS 4DP SAME TITLE
02/18/94 2885 (S) ZERO FNS TO SB & CS PUBLISHED
02/18/94 2885 (S) (CORR, ADM-2, DPS, LAW)
03/01/94 (S) FIN AT 09:00 AM SENATE
FINANCE 518
03/01/94 (S) MINUTE(FIN)
03/02/94 3027 (S) FIN RPT 7DP (JUD)CS SAME TITLE
03/02/94 3027 (S) PREVIOUS ZERO FNS
03/02/94 3027 (S) (CORR, ADM-2, DPS, LAW)
03/09/94 3133 (S) COSPONSOR(S): SALO
03/09/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/09/94 (S) MINUTE(RLS)
03/10/94 3148 (S) RULES RPT 3CAL 1NR 3/10/94
03/10/94 3150 (S) READ THE SECOND TIME
03/10/94 3150 (S) JUD CS ADOPTED UNAN CONSENT
03/10/94 3150 (S) ADVANCED TO THIRD READING UNAN
CONSENT
03/10/94 3150 (S) READ THE THIRD TIME
CSSB 252(JUD)
03/10/94 3150 (S) COSPONSOR(S): HALFORD
03/10/94 3151 (S) PASSED Y17 N- E2 A1
03/10/94 3151 (S) Taylor NOTICE OF
RECONSIDERATION
03/10/94 3151 (S) RECON TAKEN UP SAME DAY UNAN
CONSENT
03/10/94 3151 (S) PASSED ON RECONSIDERATION Y18
N-E2
03/10/94 3161 (S) TRANSMITTED TO (H)
03/11/94 2712 (H) READ THE FIRST TIME/REFERRAL(S)
03/11/94 2712 (H) JUDICIARY
03/14/94 2804 (H) CROSS SPONSOR(S): B.DAVIS, KOTT
03/25/94 (H) JUD AT 01:00 PM CAPITOL 120
04/11/94 (H) JUD AT 01:00 PM CAPITOL 120
04/13/94 (H) JUD AT 01:00 PM CAPITOL 120
04/14/94 (H) JUD AT 01:00 PM CAPITOL 120
04/20/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 293
SHORT TITLE: NATIVE ALLOTMENTS ON STATE LAND
SPONSOR(S): SENATOR(S) JACKO,Zharoff; REPRESENTATIVE(S)
Hoffman
JRN-DATE JRN-PG ACTION
02/11/94 2788 (S) READ THE FIRST TIME/REFERRAL(S)
02/11/94 2788 (S) RES, JUD
03/23/94 (S) RES AT 03:30 PM BUTROVICH
ROOM 205
03/23/94 (S) MINUTE(RES)
03/24/94 3342 (S) RES RPT 4DP 1NR
03/24/94 3342 (S) ZERO FN PUBLISHED (DNR)
04/06/94 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/06/94 (S) MINUTE(JUD)
04/08/94 3522 (S) JUD RPT 2DP 3NR
04/08/94 3522 (S) PREVIOUS ZERO FN (DNR)
04/08/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
04/08/94 (S) MINUTE(RLS)
04/11/94 3556 (S) RULES RPT 3CAL 1NR 4/11/94
04/11/94 3560 (S) READ THE SECOND TIME
04/11/94 3560 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/11/94 3560 (S) READ THE THIRD TIME SB 293
04/11/94 3561 (S) PASSED Y19 N1
04/11/94 3561 (S) COSPONSOR(S): ZHAROFF
04/11/94 3567 (S) TRANSMITTED TO (H)
04/12/94 3367 (H) READ THE FIRST TIME/REFERRAL(S)
04/12/94 3367 (H) RESOURCES, JUDICIARY
04/18/94 3542 (H) RES RPT 5DP 1NR
04/18/94 3542 (H) DP: HUDSON, CARNEY, GREEN,
JAMES
04/18/94 3542 (H) DP: WILLIAMS
04/18/94 3542 (H) NR: DAVIES
04/18/94 3542 (H) -PREVIOUS SENATE ZERO FN (DNR)
3/24/94
04/18/94 (H) RES AT 08:15 AM CAPITOL 124
04/18/94 (H) MINUTE(RES)
04/20/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 332
SHORT TITLE: POSSESSION OF 25 LIVE MARIJUANA PLANTS
SPONSOR(S): JUDICIARY
JRN-DATE JRN-PG ACTION
02/22/94 2912 (S) READ THE FIRST TIME/REFERRAL(S)
02/22/94 2912 (S) JUDICIARY
04/12/94 3583 (S) JUD RPT CS 1DP 4NR NEW TITLE
04/12/94 3583 (S) ZERO FN TO SB & CS PUBLISHED
(DPS)
04/13/94 3629 (S) RULES TO CALENDAR 4/13/94
04/13/94 3637 (S) READ THE SECOND TIME
04/13/94 3637 (S) JUD CS ADOPTED UNAN CONSENT
04/13/94 3637 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/13/94 3637 (S) READ THE THIRD TIME
CSSB 332(JUD)
04/13/94 3637 (S) PASSED Y19 N- A1
04/13/94 3651 (S) TRANSMITTED TO (H)
04/14/94 3423 (H) READ THE FIRST TIME/REFERRAL(S)
04/14/94 3423 (H) JUDICIARY
BILL: SB 342
SHORT TITLE: RISK BASED CAPITAL FOR INSURERS
SPONSOR(S): LABOR & COMMERCE BY REQUEST
JRN-DATE JRN-PG ACTION
03/03/94 3057 (S) READ THE FIRST TIME/REFERRAL(S)
03/03/94 3057 (S) LABOR & COMMERCE, JUDICIARY
03/15/94 (S) L&C AT 01:30 PM FAHRENKAMP
ROOM 203
03/15/94 (S) MINUTE(L&C)
03/18/94 3266 (S) L&C RPT CS 1DP 3NR SAME TITLE
03/18/94 3266 (S) ZERO FN TO SB & CS (DCED)
04/06/94 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/06/94 (S) MINUTE(JUD)
04/08/94 3523 (S) JUD RPT 3DP 2NR (L&C)CS
04/08/94 3523 (S) PREVIOUS ZERO FN (DCED)
04/08/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
04/08/94 (S) MINUTE(RLS)
04/11/94 3556 (S) RULES RPT 3CAL 1NR 4/11/94
04/11/94 3561 (S) READ THE SECOND TIME
04/11/94 3561 (S) L&C CS ADOPTED UNAN CONSENT
04/11/94 3561 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/11/94 3561 (S) READ THE THIRD TIME
CSSB 342(L&C)
04/11/94 3562 (S) PASSED Y19 N1
04/11/94 3562 (S) EFFECTIVE DATE SAME AS PASSAGE
04/11/94 3562 (S) Adams NOTICE OF RECONSIDERATION
04/12/94 3609 (S) RECON TAKEN UP - IN THIRD
READING
04/12/94 3610 (S) PASSED ON RECONSIDERATION
Y18 N1 A1
04/12/94 3610 (S) EFFECTIVE DATE SAME AS PASSAGE
04/12/94 3611 (S) TRANSMITTED TO (H)
04/13/94 3400 (H) READ THE FIRST TIME/REFERRAL(S)
04/13/94 3400 (H) STATE AFFAIRS, JUDICIARY
04/18/94 (H) STA AT 08:00 AM CAPITOL 102
04/18/94 (H) MINUTE(STA)
04/20/94 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-62, SIDE A
Number 001
The House Judiciary Standing Committee was called to order
at 2:30 on April 20, 1994. A quorum was present. Chairman
Porter announced that the following bills would be heard:
SB 252, SB 293, SB 332. He called Sharon Clark from Senator
Miller's office to come forward and introduce SB 252.
SB 252 - THE POSSESSION OF CHILD PORNOGRAPHY
SHARON CLARK, Legislative Aid to Senator Mike Miller,
described SB 252. She explained AS 11.41.455 and AS
11.61.125 prohibits the production and distribution of child
pornography. Current law, however, does not address the
issue of possession. SB 252 addresses a compelling need to
close the loop by prohibiting the possession of child
pornography as well as production and distribution. It is
crucial that the state's statutes address this vital issue.
For as long as the supply and the demand exist, producers
will continue to victimize the children involved. In
Osburne vs. Ohio, 495 US 103.109 LED SECOND 98, 110 Circuit
Court, 1691, 1990. The court finally upheld the Ohio
statute that banned the possession or viewing of child
pornography. The court found that such a statute protects
the victims of child pornography and encourages the
destruction of existing child pornography. The physical and
psychological trauma inflicted on victims of this sexual
exploitation is so devastating that some children never
heal. If we regulate when people are old enough to drink,
drive, and vote, in order to protect them, then why would we
not also regulate and ban the possession of child
pornography to stop the cycle of abuse, in which the child
is always the victim? This would be a Class B misdemeanor,
and subject to a term of imprisonment of not more than 90
days, and to the fine of not more than $1 thousand.
MS. CLARK urged the committee's support of SB 252. She said
Senate Judiciary had a committee substitute for SB 252
offered by Commissioner Prewitt of the Department of
Corrections, which provides an exemption for those
professionals providing sex offender treatment. They may
use some pictures or auditory tapes involving children.
CHAIRMAN PORTER said he was privileged to welcome the First
Lady of the State of Alaska, Mrs. Ermalee Hickel, and asked
her to come forward to give her testimony.
Number 116
MRS. ERMALEE HICKEL was pleased to lend her support of SB
252, prohibiting the possession of child pornography. She
encouraged state senators and representatives to pass this
extremely important bill. Pornography should have
absolutely no place in our lives, and child pornography is a
horrible outrage in our society as you all know. The
terrible statistics concerning the abuse of our children and
sexual abuse of all types cannot be ignored any longer and
these statistics are staggering. As many of you know,
Alaska ranks number one in the nation in child sexual abuse.
It is so tragic that one in three American girls and one in
seven boys will be sexually abused by the age of 18. Over
80 percent of child molesters admit to regular use of
pornography, and a serial molester typically has from 360 -
380 victims in his lifetime. Those are staggering
statistics. Both adult and child pornography is often used
as an aid during these crimes, and often referred to as the
instruction manual. Approximately 1.2 million children are
exploited every year in the production of child pornography
and child prostitution. Our children do not deserve this
kind of treatment, and they must be protected in every way
that we can find. By enacting legislation that makes
possession of child pornography illegal, we can make a
positive step forward in protecting our young people, and
send the strong message to those who use this terrible
material that we are not going to turn our heads away from
the abuse of our children any longer.
MRS. HICKEL stated she is a member of the national "Enough
is Enough" campaign, an organization to which many of the
Governors' wives belong. This campaign has done an
outstanding job of making folks aware of the devastating
problems of illegal pornography and child pornography.
Their terrific national advertising, which I have seen in
"Time" and "Newsweek" magazines, educating people about hard
core pornography's relationship to sexual abuse of children
is making a difference in protecting our children's lives.
It is having a very positive affect on changing the laws
concerning obscenity and child pornography. This fine
organization is to be commended for it's outstanding work on
behalf of America's children. Mrs. Hickel said she will let
the organization know what Alaska is doing in legislation to
protect our children in the nation.
MRS. HICKEL said the devastation that child pornography
causes is truly unforgivable. As Sharon said, it never goes
away, and we must do all we can to stamp it out, for the
sake of our children and the families. She expressed hope
that each one of the committee members would give SB 252
their strongest support. She said from her heart, "Enough
is enough." She thanked the committee for considering SB
252.
CHAIRMAN PORTER recognized and welcomed Representative
Bettye Davis.
Number 200
REPRESENTATIVE BETTYE DAVIS testified that she could
actually say "ditto" to everything Mrs. Hickel had said, and
she does not believe in doing a whole lot of talk if the
committee is ready to take action. She did want to say she
was pleased to be there to testify on behalf of the bill,
which she introduced in the House. She was pleased that it
had made it to the Judiciary Committee from the Senate.
Everything she had to say on her notes had already been
said. She did illustrate that it so important that we
consider this bill. We are one of the 23 states who have
not taken this particular action. It behooves us to do it.
We are number 47 when it comes to the well being of our
children. She said she does not care what people say about
people having the right to have things in the privacy of
their home. We have to look at it from the standpoint, if
you have child pornography materials in your home, some
child had to be abused for you to have it. Even if they
gave consent, it is considered to be abuse. Most of the
material you see sometimes would include infants who could
not even speak for themselves; and it is so devastating what
happens to children when they are sexually molested at an
early age. If one sexual abuser can abuse over 380 children
within their lifetime; and we have many, many people that
are doing this, look what we are doing to the children in
this state. She also is a member of the "Enough is Enough"
group. It is time for us to do the right thing and pass
this bill. If there was anything she could change about it,
she would like for the penalty to be even stiffer, but if
this will just get our foot in the door, this is good
enough. This piece of legislation is long overdue, and you
will serve your state very well if you pass it.
Number 258
REPRESENTATIVE JAMES commented that she wondered why the
penalty was only a Class B misdemeanor.
Number 275
BOB HEAD, Chairman, Alaska Human Relations Commission, was
next to testify. He summarized a study of a six step life
cycle of child pornography. He explained that in step one,
the offender displays existing child pornography to a child,
ostensibly as educational material. Step two is an attempt
to convince the child that explicit sex is acceptable, even
desirable, using photographs and movies, or whatever they
have. In step three, the child porn is then used to
convince the young victim that children are already involved
and it is A-okay. If it is there in the movies, it cannot
all be bad. At step four, the child pornography
desensitizes the child, lowering his/her inhibitions. At
step five, some of these sessions progress to sexual
activity, providing the child molester can get away with it.
In step six, using photographs from this new activity, the
cycle begins again, using those photographs and videos to
entice another child into the same activity. Pain suffered
by children used in pornography is often devastating and
always significant. Short term effects of such involvement
include depression, suicidal thoughts, feeling ashamed,
guilt, alienation from family and peers, and a massive acute
anxiety. Victims in the long term may successfully
integrate the event, particularly with psychiatric help, but
many will likely suffer a repetition of this abuse cycle.
This is key, because next time around they are the abuser.
At this time, they are suffering a chronic low self esteem,
depression, anxiety regarding their sexuality, role
confusion, a fragmented sense of self, and a very strongly
enhanced probability of entry into prostitution themselves.
All, of course will suffer the agony, and Mrs. Hickel eluded
to this, of knowing that their sexual activity, on film, is
now in circulation. The effects on their future lives is
unknowable and beyond their control, and may well be the
most unhealable wound. This same commission, which was
concluded in '86, notes that several states have made kiddie
porn illegal, and consider this action an extremely
effective weapon against child molestation. If we can make
a stronger law to make it uncomfortable for child molesters
to live in our state, then it behooves us all to do anything
we can to reach that plateau. Several states currently have
statutes which classify sexual exploitation of children as a
felony, including possession of child porn. Some of these
states also mandate registration of sex crime felons.
Mr. HEAD said that considering the life shattering effect on
our youth, he asked, on behalf of the Human Relations
Commission, that the committee enact this legislation
prohibiting the possession of child porn in the State of
Alaska. We would further ask that some real teeth be put in
it. Let us make the Alaska statute among the strongest, not
the weakest. Have the first conviction, for instance
require registration on a law enforcement network; and link
that registration to the requirement for lifetime probation,
as recommended in the attorney general's summary.
MR. HEAD noted there is a spectrum of our society that feeds
continually on this kind of thing. They are out there, and
they are involved in these things. They have journals
within their spectrum. Those journals tell them
periodically where the easiest places are to get away with
this activity, and where the most hazardous places are.
Whatever we do, let us make the State of Alaska the most
hazardous place in this nation for pedaphiles.
Number 360
REPRESENTATIVE PHILLIPS asked Mr. HEAD which states have
enacted the offense as a felony offense.
MR. HEAD said he thought Idaho and Iowa did.
Number 378
REPRESENTATIVE PHILLIPS asked Diane Schenker of the
Department of Corrections about Section B of the bill
starting on line nine. She noticed that amendment was put
in by Corrections. She explained that there was an incident
last year on the Kenai Peninsula, where a group of upset
parents got together and formed an organization against this
kind of treatment in the Corrections system. She did not
know if it was being used on youthful offenders, or if it
was being used on adults.
DIANE SCHENKER, Special Assistant to the Commissioner,
Department of Corrections, said she did not remember that
particular group, but from time to time we have different
interested citizens question us about the use of this kind
of treatment. Usually when the department had given them
the information and the reason behind it, the group has
appeared to be satisfied with the explanation.
REPRESENTATIVE PHILLIPS asked Ms. Schenker if they would use
that kind of treatment on youthful offenders.
MS. SCHENKER stated the only people in our institutions are
adults, or a very small percentage of waived juveniles, so I
am not aware what Health and Social Services does in their
juvenile facilities.
Number 400
REPRESENTATIVE GREEN asked what a plethysmograph was.
Number 420
MS. SCHENKER said it is similar to a lie detector, but
measures the physiological arousal of the offender to
various pictures or tapes, in order for treatment staff to
review.
CHAIRMAN PORTER said that was an excellent definition.
Number 425
REPRESENTATIVE GREEN said he thinks he has gotten his
children through without having had to be part of this whole
problem. He has a slew of grandchildren, and it is
disturbing that they are going to have to face this kind of
garbage. He asked if this could be strengthened without
running amuck of a crazy judge in a court saying that is
overreacting. If so he strongly recommended toughening it
up.
CHAIRMAN PORTER asked Jerry Luckhaupt, the bill drafter to
describe the level of offense that this is, in relation to
other similarly placed offenses.
JERRY LUCKHAUPT, Legislative Council, Division of Legal
Services, Legislative Affairs Agency, stated this is a Class
B misdemeanor. The unlawful exploitation of a minor, which
is something that, if you take pictures of that, it would be
child pornography, basically, is the way we would find this.
The unlawful exploitation of a minor is a Class B felony in
this state. We currently have a statute on the distribution
of child pornography. If you distribute child pornography,
that is a Class C felony. There has been some stair-
stepping by the Legislature at the time. If you follow that
stair-stepping to a logical conclusion, you would think the
mere possession, since the legislature usually defines
distribution as being worse than mere possession, like with
drugs, it would be logical for this to be a Class A
misdemeanor.
MR. LUCKHAUPT referred to testimony in given to the Senate
Judiciary Committee, and said there was some material
provided to them, listing the numbers of states that have
laws on this subject, and it was fairly equally divided as
to whether or not they classify as a felony or a
misdemeanor, the mere possession. The material indicated
are almost 40 states listed, of which 22 of them made mere
possession of child pornography a misdemeanor. The other 18
states made it a felony. He did not feel that there is any
privacy right to possess child pornography. He analogized
child pornography to the possession of cocaine, which the
Alaska Supreme Court has not found to be protected under the
right to privacy provisions of our constitution. Whereas
the possession of marijuana by adults for their own personal
use in their own homes is protected under our privacy
provision, or our constitution. He analogized that to the
mere possession of regular obscenity. Regular obscene
material was ruled to be protected under the U.S.
Constitution, by the U.S. Supreme Court in 1969. The mere
possession of regular old obscene material in your own home
for personal purposes is protected, and our Alaska
Constitutional Privacy Provision would protect that same
material. Child pornography has a greater danger, and there
is some proven danger like with cocaine, as opposed to the
debate that goes on about the dangerousness of marijuana,
which could be analogized to the dangerousness of regular
pornography. Child pornography does have some proven danger
out there, so a court would not find the possession of child
pornography to be protected. Increasing the penalty to
Class A would not affect that rationale. Even if you were
going to classify it as a Class C felony, that probably
would not actually have an effect. The Department of Public
Safety has stated in fiscal notes that they do not
anticipate going out and actively conducting sting
operations to prosecute people under this law. It would be
something that they would encounter in executing a search
warrant, or something like that, in cases where sexual abuse
has been discovered, or is being investigated. Sexual abuse
of minors would then find an executing of a search warrant
of the suspects home, they might find this material, and
then they would start prosecution as part of the other
charges. So it is within your power to increase the
penalty.
CHAIRMAN PORTER asked Mr. Luckhaupt if he had attended
hearings where the decision to select Class B Misdemeanor
was discussed, and if he knew what the rationale was.
Number 535
MR. LUCKHAUPT said they started out, basically reintroducing
a version from Representative Bettye Davis. Her version was
a reintroduction of a bill from the 17th Legislature, and
that was reintroduction from the 16th Legislature. The
Class B Misdemeanor was just picked out of thin air, and
everybody kept going on. There was never any real
rationale. Senate Judiciary did discuss this matter a
little, and then just passed the bill out without reaching a
conclusion as to whether or not they wanted to increase the
penalty. They amended the bill to include the penile
plethysmograph treatment, and went ahead and passed out the
bill without actually addressing the discussion that went on
about increasing the penalty.
REPRESENTATIVE JAMES indicated she did not think a Class B
Misdemeanor was tough enough.
Number 548
CHAIRMAN PORTER agreed that it did not seem to be sending
the correct message. He asked Sharon Clark if she believed
Senator Miller would oppose amending the bill.
SHARON CLARK did not think so and offered to check with him.
REPRESENTATIVE GREEN said he would like to go all the way up
to a felony. He thought felony would send a message that is
a lot stronger than any numbers behind a misdemeanor.
CHAIRMAN PORTER asked Margot Knuth to come and answer some
questions.
Number 560
MARGOT O. KNUTH, Assistant Attorney General, Criminal
Division, Department of Law, said she thought a Class A
Misdemeanor makes the most amount of sense from our existing
scheme because we have a Class C felony offense already
related to child pornography, which is distribution. If we
have distribution being the Class C felony, and we have
possession being a Class C felony, they are going to point
fingers at each other and say, "Wait a minute! Problem,
problem!" She was not sure which one would be thrown out
more readily, but there needs to be a stacking, and if you
want it, and if you thought you had enough time this session
to work it all out, you could move everything up so that you
would be making quite a change. But if you wanted
possession to be a "C", you should make distribution a "B",
and creation or production an "A". But it is important that
there be the stacking because the conduct does become more
culpable, and equal protection requires that there be a
relationship between the culpability and the level of the
offense.
Number 575
REPRESENTATIVE NORDLUND questioned about how this would be
enforced, or what would be the practical situations in which
it this would be enforced. Possibly these materials would
be found in the investigation of another crime. Perhaps,
the activity was actually taking place in the house and you
are going in to investigate that. He said his point is that
this would probably rarely be enforced in it's own right,
and it would be a crime added to a number of other crimes in
which the perpetrator would get hit with a pretty stiff
penalty anyway.
CHAIRMAN PORTER said it could be a crime in which the
original arrest that was made had no relationship to it. It
could be a DWI arrest, and at the jail when they go through
the possessions, they find child pornography. It could be
arrest for shoplifting or whatever. If it were an offense
related to the pornography, more than likely, we would be
into a felony situation in the first place, with
transporting this material, or child sexual abuse.
REPRESENTATIVE GREEN expressed concern about if a person
were picked up for shoplifting, and in his possession was
child pornography, would the offense be bigger or greater?
Number 601
CHAIRMAN PORTER said no. He said that the possession would
not necessarily be discovered as a result of the
investigation of a child sexual assault type of case, or a
child pornography type of case.
Number 611
REPRESENTATIVE GREEN said he did not know whether it would
be more likely, or less likely, but the mere fact, as it was
brought out in some of the testimony, that this person
happens to have this stuff in his possession, tells us
somebody had to produce it and sell it. If we can start
anywhere, and cut that chain, I think we should, and jack up
the penalty as high as we possibly think the courts would
allow.
CHAIRMAN PORTER said that is exactly what we are discussing
and we are wondering if we would have a problem making this
a Class C felony.
Number 615
MARGOT KNUTH said if it is a crime at all, and a Class A
Misdemeanor is fairly significant, that is up to a year in
jail, and you are usually talking about up to a year in
jail, and you are usually talking about fines of hundreds of
dollars, that is going to be new and different. The message
we are trying to send out is, "Don't buy, don't be a
consumer, don't be in possession." You can do that even
with just the Class A misdemeanor. Right now, everybody
says, "I am not a distributer. I am just a possessor."
There are no consequences for it. Where I expect we are
going to pick this up the most often, is actually when we
are doing searches of houses for drugs and things like that,
and that is going to be a big time offense already so this
gets added to the stack. There probably will not be a
situation where they would apply for a search warrant just
because we have reason to think there is possession of child
pornography in the house. It is much more likely they would
be there for another reason. But making it a crime at all,
the Class B Misdemeanor is pretty innocuous. Class A
Misdemeanor is pretty significant. Right now it is the
maximum offense for a DWI, and that is the most serious
crime we have in this state.
CHAIRMAN PORTER added that there would be challenges from
those charged with this offense in relation to transporting,
if it were a felony. He suggested that if someone wants to
entertain moving this out, that we would not go past Class A
Misdemeanor, and if it is, it should be revisited this in
terms of looking at the entire structure, that it be done
that at another time. We do not want to hold this bill up,
or jeopardize it.
Number 649
REPRESENTATIVE JAMES asked if she could make an amendment on
page 1, line 12, delete "B" and insert "A."
CHAIRMAN PORTER stated there was motion to amend, and asked
if there was any discussion.
REPRESENTATIVE PHILLIPS asked for Representative Davis'
opinion on this.
REPRESENTATIVE DAVIS said she would love to see the tougher
Class A penalty, but said she had concerns about getting the
bill back over to the Senate for them to concur this late in
the game. If it would not cause a problem, Ms. Davis said
she would prefer to see "A" in there rather than "B". If it
is going to cause some problem, she would rather see it
moved out. It still has another committee of referral to go
to on the House side. She asked if it would go from
Judiciary to Finance.
There was They were not sure if it would go to Finance or
not, since there was no fiscal note.
REPRESENTATIVE PHILLIPS stated that there would be time.
SHARON CLARK interjected that the main thrust of Senator
Miller's bill was to "close the loop", that we already have
the other two laws on the books, and now we do not have one
for possession, so that was the main part of getting it, was
to close the loop. She would also hate to see it
jeopardized and not getting it out this session.
Number 676
CHAIRMAN PORTER asked if there was an objection to the
amendment. Hearing none, the amendment was adopted.
REPRESENTATIVE GREEN moved to pass HCSCSSB 252 (JUD), with a
zero fiscal note and individual recommendations.
CHAIRMAN PORTER said he would ask the Chairman of Finance to
consider waiving the bill if there is a Finance Committee
referral.
SB 293 - NATIVE ALLOTMENTS ON STATE LAND
Number 700
CHAIRMAN PORTER announced the next bill to come before the
committee would be SB 293 "An Act relating to the authority
of the commissioner of natural resources to reconvey, or
relinquish an interest in, land to the United States if that
land or interest being reconveyed or relinquished is
identified in an amended application for a land allotment
under federal law."
BRYCE EDGMON, legislative staff to Senator Jacko, thanked
Chairman Porter for hearing the bill, as well as extending
apologies from Senator Jacko for not being able to make it
to the hearing. He explained there is a situation in the
state where there are Native Allotments, statewide, which
are located on top of lands that the state has designated
for public purpose. The prime example are those allotments
located in state parks. He said there are also Native
allotments located on airports, on prime recreational areas,
on roads, and a several other sites the State has designated
as public use areas. What SB 293 does is gives the
Commissioner of the Department of Natural Resources (DNR) a
tool to work with the allottee and the federal government to
take this parcel of land, this allotment which is located on
top of state land, that has been set aside for public use,
and relocate it to another parcel outside of this public
purpose area. The bill itself makes a technical change to
Title 38, to give the commissioner of DNR the authority to
reconvey the land to the federal government, once the
relocation of the parcel has been designated. The bill has
a zero fiscal note. It passed the Senate 19 - 1. It is
actually felt that the bill would have a positive fiscal
impact, because it would save DNR staff a lot of time in
resolving these land use conflicts, and it would also save
time in litigation, in the adjudication stage of resolving
this allotment problem.
MR. EDGMON ended his testimony with one anecdotal incident.
He said was talking with the director of Parks right before
the committee hearing today who told him of an elderly lady
in the village of Newstuyahok, which is located outside of
Dillingham, who filed for her allotment during the Teddy
Roosevelt Administration. This woman is 104 years old now,
and is still fighting to gain title to her Native allotment.
He then said he would be available for any questions.
Number 742
REPRESENTATIVE PHILLIPS referred to the latest land
selections DNR has done to complete our statehood land
selections and asked if the bill would conflict with those
other selections.
MR. EDGMON replied that it would not reduce the 100 million
acres that the state receives from the federal government.
REPRESENTATIVE GREEN said the he feels the bill is a good
piece of legislation. He referred to there being a large
number of cases that had to cross allotment areas. There
are problems associated with who gives the permission; Is it
the Bureau of Indian Affairs? Is it the allottee himself?
Is it the state or the federal government? He said it is a
nightmare, and if the bill can unscramble that nightmare, it
is a good piece of legislation.
CHAIRMAN PORTER asked where the selections would be made and
where the classification of land selections would be made
from.
MR. EDGMON said it would be a mutually agreed upon site
between DNR and the allottee. It would have to go through
he normal best interest finding process for the department.
It is envisioned that it would be somewhere nearby, because
Native allotments are related to traditional use and
occupancy. So, in a practical sense, it would be somewhere
close by, outside that public use area.
REPRESENTATIVE PHILLIPS asked Mr. Edgmon if we would have a
conflict with municipal selected lands.
Number 760
MR. EDGMON said a selection process would have to be
approved by DNR.
REPRESENTATIVE PHILLIPS asked if municipal lands would be
allowed to be selected.
MR. EDGMON said that is his understanding.
RON SWANSON, Director of Division of Lands, Department of
Natural Resources, said that the allottee, the State of
Alaska, the Bureau of Indian Affairs, and BLM all have to
agree upon what is going to happen here. There is no we are
going to create another conflict situation, having an
allotment move. He said they are trying to clarify the
problem, make sure we have access, don't block airports, and
do not conflict with public use sites. Usually you can fix
a situation more than twice. You can do it three times.
Mr. Swanson said the department strongly supports this bill.
REPRESENTATIVE GREEN made a motion to move SB 293, with a
zero fiscal note, and individual recommendations.
CHAIRMAN PORTER asked if there was an objection. Hearing
none, the motion carried.
CSSB 332 - WEIGHT OF LIVE MARIJUANA PLANTS
CHAIRMAN PORTER announced the next order of business would
be SB 332 relating to the weight of live marijuana plants.
He asked Joe Ambrose to come forward and give the sponsor
statement.
JOE AMBROSE, Chief of Staff to Senator Robin Taylor, said
the Senate Judiciary Committee introduced SB 332, said SB
332 was introduced on February 22, 1994, at the request of
law enforcement agencies, and with the cooperation of the
Department of Law. They would like to address concerns over
the aggregate weight provisions of our controlled substance
laws. Current law requires that marijuana seized in an
investigation be reduced to its most commonly used form that
is a saleable product. This is a time consuming project.
It took the Ketchikan narcotics team of 32 officer hours to
process 200 mature marijuana plants. When SB 332 was first
introduced it was an attempt to directly address the
aggregate weight calculations provided under current law.
That proved difficult with any suggested revision in the
current formula, raising questions that could jeopardize
prosecutions in some cases. The Judiciary Committee
substitute, which was approved unanimously by the Senate,
would instead give law enforcement agencies and prosecutors
an alternative to using the aggregate weight calculation.
In cases of misconduct involving a controlled substance in
the fourth degree, which is a Class C felony, law
enforcement officials could use either the possession of an
aggregate weight of one pound, or 25 or more marijuana
plants to prove their case. This bill targets large
marijuana growing operations. It would simplify
prosecution, and avoid the need to process the seized
plants. He noted the bill has a zero fiscal note, and did
pass the Senate unanimously.
Number 825
CHAIRMAN PORTER asked Margot Knuth if there was any
differentiation, or could there be a problem with regards to
the maturity of the plants.
MARGOT KNUTH, Assistant Attorney General, Criminal Division
Department of Law, stated that there is nothing in the bill
requiring the plant to have reached a certain level of
maturity, and every baby marijuana plant has the potential
of becoming a nice productive healthy plant. To that
extent, we are fairly comfortable that if you have 25 plants
you can identify, the point is well made that this is no
longer close to personal use, if we have such an amount of
marijuana anymore. The big advantage of the bill is we will
be able to take our law enforcement officers out of the
business of drying marijuana to preserve it for trial. The
amount of effort, energy, and time that goes into that is
almost staggering, and the larger the case is, the more work
it is to do, and it becomes truly frightening that we are
spending our time this way. And if you do not do that, you
put the prosecutor in a real bind, because juries think
about everything, and there is nothing worse than going into
court with spoiled evidence. If you go in with moldy little
plants, your case will just go out the window. This is a
very practical bill.
Number 850
CHAIRMAN PORTER wanted to say, for the record, that this
could be a little tiny plant or a big plant, because from
little tiny plants, great big plants grow; and somebody
should not get off just because you bust them too quick.
Number 855
MR. AMBROSE added one more comment with regards to the
processing of the product. Depending on the time frame from
the time of the arrest, to the charge, until you take the
individual to trial, this product can continue to dry, and
actually fall below the weight that is required in the law
to prosecute a case. So you may have a pound at the time
you charge the individual, and the weight can fall below
that. It can get pretty complicated.
REPRESENTATIVE NORDLUND asked how the number 25 was
selected.
MS. KNUTH said they went around the offices statewide and
asked what people felt was a comfortable quantity to be a
felony level. She said they tried to be conservative in the
sense that they did not want it to be too small of a number.
Ms. Knuth said 25 plants at moderate growth will weigh well
over a pound. It is meant to be on that side of the line.
TAPE 94-62, SIDE B
Number 001
REPRESENTATIVE GREEN moved that CSSB 332 (JUD) be passed out
of the House Judiciary Committee, with accompanying fiscal
notes, and individual recommendations.
There being no objection, the motion carried.
REPRESENTATIVE GREEN added an anecdote. There is a highway
between Huntington Beach and La Habra, CA, that is a divided
highway. The police officer had his picture taken on a
ladder. He was holding up two seven feet marijuana plants
that had been growing wild there. Representative Green said
he didn't know marijuana could get anywhere near that big.
How many pounds would that be?
CHAIRMAN PORTER presented Ms. Knuth with a plaque for
providing the committee with a lot of support assistance.
He said, as a matter of fact, we have mentioned that you are
an honorary member. Chairman Porter said in recognition of
your intent to leave the state, leave the continent, we
would like to give you a token of our recognition of your
contribution; a little plaque that just says, "Presented to
Margot Knuth for Distinguished Service as an honorary eighth
member of the House Judiciary Committee, 1993-1994.
Number 060
REPRESENTATIVE PHILLIPS then presented a plaque with a gavel
to Chairman Porter on behalf of the committee for the
tireless work that has gone into this committee. She said
he has done a very excellent job. The plaque reads,
"Presented to Representative Brian Porter, Chairman, House
Judiciary Committee, 18th Alaska Legislature 1993-94 for
distinguished service to the people of Alaska."
CHAIRMAN PORTER made his last speech, saying this may be our
last meeting. He wanted to take the opportunity to thank
the staff of the committee Gail Horetski last year, and
Daniella Loper this year, that has provided legal council to
the committee. He continued to speak: "Last year, Susan
Phillips, how she did it, I do not know, but she managed to
stay all year as our Committee Secretary, and as I have
mentioned a couple of times; while we have had two or three
false starts, we have got a keeper here with Diane Anderson.
The members of the committee have been exemplary. We
certainly have recognition of the loyal minority, being a
minority and doing what minorities are supposed to do, but
it has always been above board. It has always been without
animosity, and I cannot say how much I appreciate that, and
if there is nothing else, now before we finally say, "We are
adjourned."
The House Judiciary Committee meeting adjourned at 3:20 p.m.
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